El-Haddad v The Queen

[2015] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	El-Haddad v R [2015] NSWCCA 10
Hearing dates:	1 December 2014
Decision date:	20 February 2015
Before:	Leeming JA at [1]; McCallum J at [129]; R A Hulme J at [130]
Decision:	1. Leave be refused in respect of ground 4. 2. The appeal be dismissed.
Catchwords:	CRIMINAL LAW - importation of commercial and marketable quantities of border controlled drugs and precursors - indictment containing five charges - whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 - whether evidence significantly probative - relevance of dissimilarities - whether open to trial judge to deal with coincidence rule and tendency rule together CRIMINAL LAW - importation of commercial and marketable quantities of border controlled drugs - meaning of "import" in s 300.2 of the Criminal Code 1995 (Cth) - "import" defined to include "deal with the substance in connection with its importation" - commercial quantity of heroin imported in container and held by freight forwarders in Sydney - whether inquiries made by appellant as to fees payable in order to release goods sufficient to amount to dealing - whether inquiries together with assertions of ownership sufficient to amount to dealing
Legislation Cited:	Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Criminal Code 1995 (Cth), ss 11.1 300.2, 307, 314 Customs Act 1901 (Cth), s 233B Evidence Act 1995 (NSW), ss 94, 95, 97, 98, 100, 101 Evidence Amendment Act 2007 (NSW)
Cases Cited:	2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; 207 FCR 448 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 B v The Queen [1992] HCA 68; 175 CLR 599 BCM v The Queen [2013] HCA 48; 88 ALJR 101 Calderwood v The Queen [2007] NSWCCA 180; 172 A Crim R 208 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 Clark v R [2014] NSWCCA 236 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 DAO v The Queen [2011] NSWCCA 63 DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758 Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149 Gilham v R [2012] NSWCCA 131 Golossian v R [2013] NSWCCA 311 House v The King (1936) 55 CLR 499 KJR v R [2007] NSWCCA 165; 173 A Crim R 226 Leff v R (1996) 86 A Crim R 212 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 R v AH (1997) 42 NSWLR 702 R v Campbell [2008] NSWCCA 214; 73 NSWLR 272 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v MR [2013] NSWCCA 236 R v Nolan [2012] NSWCCA 126; 83 NSWLR 534 R v Tranter [2013] SASCFC 61; 116 SASR 452 R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 Saoud v R [2014] NSWCCA 136 SKA v The Queen [2011] HCA 13; 243 CLR 400 Sokolowskyj v R [2014] NSWCCA 55 Velkoski v The Queen [2014] VSCA 121 Warren v Coombes [1979] HCA 9; 142 CLR 531 YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395
Texts Cited:	S Odgers, Uniform Evidence Law (11th ed, 2014)
Category:	Principal judgment
Parties:	Ghabi El-Haddad (Appellant) Regina (Respondent)
Representation:	Counsel: D Dalton SC (Appellant) P McGuire (Crown) Solicitors: John B Hajje & Associates (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2011/145829; 2011/218654; 2011/272928; 2011/401536
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 09 July 2012 Before: Williams DCJ File Number(s): 2011/145829; 2011/218654; 2011/272928; 2011/401536

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr El-Haddad, was charged with four counts of importing marketable quantities of heroin, cocaine and ephedrine, contrary to ss 307.2(1) and 307.12(1) of the Criminal Code 1995 (Cth) (‘Counts 1, 2, 3 and 5’), and the importation of a commercial quantity of a border controlled drug, namely some 16 kilograms of heroin, contrary to s 307.1(1) of the Code (‘Count 4’).

Evidence relevant to each of the counts was admitted without restriction at Mr El-Haddad’s trial although an objection to broadly worded notices pursuant to ss 97 and 98 was flagged at the outset. Shortly before the close of the Crown case, a further notice pursuant to ss 97 and 98 of the Evidence Act was sent by the prosecutor identifying with precision the evidence that had been adduced in the course of the trial. Immediately following the close of the Crown case, the Crown sought a ruling in accordance with the later notice. The primary judge held that the original notices were insufficient, but that the second notice was sufficiently specific to satisfy the requirements of ss 97 and 98. His Honour held that the evidence in question had significant probative value, and was capable of being perceived by the jury as significantly probative, and found that he should admit the evidence as tendency and coincidence evidence accordingly.

At the close of the Crown case, Mr El-Haddad sought a directed verdict in relation to Count 4. The primary judge rejected this application on the basis that inquiries as to the costs associated with the transportation and storage of drugs were actions which fulfilled the definition of dealing with the substance in connection with its importation in accordance with the expanded definition of “import” inserted by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth).

The jury convicted Mr El-Haddad on all five charges. He appealed against his conviction. The grounds of appeal challenged the admission of evidence with respect to Counts 1, 2, 3 and 5 as tendency and/or coincidence evidence with respect to Count 4, and vice versa. Mr El-Haddad also challenged the trial judge’s dismissal of his application for a directed verdict on Count 4, and argued that the jury’s verdict with respect to Count 4 was unsafe and unsatisfactory, and not supported by the evidence.

Held, dismissing the appeal (per Leeming JA, McCallum and R A Hulme JJ agreeing):

Admissibility of evidence

1. Sections 97 and 98 of the Evidence Act 1995 (NSW) do not preclude the admissibility of evidence per se, but rather are rules precluding the admissibility of evidence to prove a “particular matter”, which must be read with ss 94 and 95 of the Act: at [34]-[36], [38].

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668, followed

DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758, considered

2. Section 95 of the Evidence Act 1995 (NSW) constrains the use which may be made of evidence even if it is relevant and admitted and available to be used for another purpose, including where the evidence is not ‘tendency evidence’ or ‘coincidence evidence’. When a trial is by judge and jury, that will ordinarily require a direction to be given: at [38]-[42].

R v AH (1997) 42 NSWLR 702; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504, considered and applied

3. In the present case, s 95 was applicable, such that evidence relevant to Counts 1, 2, 3 and 5 which was not relevant to Count 4 except insofar as it might be admissible as tendency or coincidence evidence, could not be used for either purpose unless ss 97, 98 and 101 were satisfied. Conversely, evidence relevant to Count 4 which was not relevant to the other charges except insofar as it involved tendency or coincidence reasoning could not be used for that purpose unless ss 97, 98 and 101 were satisfied: at [43].

4. Consideration of the relationship between the “tendency rule” and the “coincidence rule”, the requirement to give notices, and the content of such notices: at [46]-[56].

KJR v R [2007] NSWCCA 165; 173 A Crim R 226; Saoud v R [2014] NSWCCA 136; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504; Bryant v R [2011] NSWCCA 26; 205 A Crim R 531, referred to and applied

5. Tendency evidence may possess significant probative value depending on the degree of generality or specificity with which the “tendency” is stated. That is, the specificity of the tendency directly informs the strength of the inferential mode of reasoning: at [70]-[72].

Townsend v Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; R v Ford [2009] NSWCCA 306, referred to

Sokolowskyj v R [2014] NSWCCA 55, considered

6. Evidence which supports tendency or coincidence reasoning turns on whether there are relevant similarities or differences; relevant dissimilarities may dilute the probative value of the evidence: at [74]-[75].

Sokolowskyj v R [2014] NSWCCA 55, applied

Directed verdict

7. The words “import” and “importation” are not co-extensive. The “means and includes” definition of “import” deems the legal meaning of “import” to include “deal with the substance in connection with its importation”. This must be construed to mean something beyond bringing the substance into Australia. There must be a “dealing” and the dealing must be “in connection with” importation. In this context, “importation” refers to a broad process, rather than a physical act which ceases when the substance arrives in Australia: at [100]-[104].

R v Tranter [2013] SASCFC 61; 116 SASR 452; Leff v R (1996) 86 A Crim R 212; R v Nolan [2012] NSWCCA 126; 83 NSWLR 534, considered and applied

Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), considered

8. A ‘dealing’ with tangible property may involve either a physical process or a legal process. However, a price inquiry is not of itself a ‘dealing’, as it is neither a physical dealing with a thing, nor is it a legal dealing with the thing: at [109]-[110], [112].

R v Tranter [2013] SASCFC 61; 116 SASR 452 ; Van Oppen & Co v Tredegars Ltd (1921) 37 TLR 504; Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700, applied

9. The communications in question were not mere price inquiries but rather were assertions of ownership clearly connected with the importation of the heroin, and as such were dealings with the goods, within the meaning of the Code: at [114]-[117]. The primary judge was correct to dismiss the application for a directed verdict in respect of Count 4, although for different reasons: at [119]-[120].

Challenge to jury verdict

10. Consideration of the circumstances in which leave will be granted to hear an appeal under s 6(1) of the Criminal Appeal Act 1912, when only limited submissions and materials had been provided to the Court: at [121]-[127].

Golossian v R [2013] NSWCCA 311, followed

Clark v R [2014] NSWCCA 236, referred to

Judgment

1. LEEMING JA: Mr Ghabi El-Haddad was convicted of five drug importation charges under s 307 of the Criminal Code 1995 (Cth) (Code) following a trial lasting 16 days before a judge and jury of 12. The grounds of his appeal against conviction are directed to challenging the guilty verdict on Count 4, which was, by far, the most serious charge, and resulted in a sentence of imprisonment for 15 years, dating from 4 May 2013.

2. The grounds of appeal fall into two classes. Grounds 1 and 2 challenge the admission of evidence with respect to counts 1, 2, 3 and 5 as tendency and/or coincidence evidence with respect to count 4, and vice versa. In order to explain why I have concluded no such error is made out, it will be necessary to explain some of the detail of the evidence adduced in relation to all five importations, and the course of the trial.

3. Ground 3 challenges the trial judge’s dismissal of the appellant’s application for a directed verdict on count 4, while ground 4 contends that the jury’s verdict with respect to count 4 is “unsafe and unsatisfactory, and not supported by the evidence”. These grounds turn on the Code’s expanded definition of “import”, introduced in 2010. I have concluded that the primary judge applied an incorrect legal test when dismissing that application, but that nevertheless his Honour was correct to conclude that the appellant had a case to answer, and that leave should not be granted in respect of ground 4.

The Crown case against the appellant

4. The indictment contained five charges. One charge, count 4, alleged the importation of a commercial quantity of a border controlled drug, namely 16,860.8 grams of heroin, contrary to s 307.1(1) of the Code. The other counts alleged the importation of marketable quantities of heroin, cocaine and ephedrine (which is a border controlled precursor), contrary to ss 307.2(1) and 307.12(1) of the Code.

5. Importing a commercial quantity of a border controlled drug carries a maximum penalty of life imprisonment; importing a marketable quantity carries a maximum penalty of 25 years imprisonment. In the case of heroin, a marketable quantity is 2 grams, and a commercial quantity is 1.5 kilograms: Code, s 314.4.

6. Count 1 was that on about 9 June 2010 the appellant imported 66.8 grams of heroin. Count 2 was that on about 23 September 2010, he imported 310.2 grams of cocaine. Count 3 was that on 3 October 2010, he imported 1,268.6 grams of heroin. Count 5 was that on about 30 January 2011, he imported 968 grams of ephedrine. There was no dispute that drugs were imported inside various packages, nor was there any dispute about weight or purity. As will be seen below, the appellant personally took possession of the packages the subject of counts 1 and 5; the only real issue by the end of the trial on these counts was whether he was shown to have the requisite knowledge of the heroin and ephedrine contained within the packages.

7. There were many similarities between counts 1, 2, 3 and 5, which need not be recounted for the purposes of this appeal. What follows focusses on the similarities and dissimilarities between the evidence adduced in relation to those counts, and that adduced in respect of count 4.

(a) Counts 1, 2, 3 and 5 – marketable quantities of border controlled drugs and precursor

8. In the case of Count 1, a package covered in cream coloured hessian arrived at Merrylands post office in western Sydney in late May or early June 2010, addressed to “Pouln Mills”, at 44 Locksley Avenue, Merrylands 2160, Sydney Australia, with contact telephone number given as +61 41X XX 224. The package contained, among other things, mechanical valves in which were concealed 66.8 grams of heroin.

9. The appellant telephoned Australia Post on 2 June and asked for the package to be redirected to GPO Box 3058. The appellant had leased that post office box the previous September. On 9 June 2010, the appellant attempted to collect the consignment personally, but was told he needed a written authority from the addressee. Later that day, he sent an email to the GPO, signed in the name P Mills, stating that he had authority to collect the consignment. The Post Office alerted the Australian Federal Police to the package and federal agents attended. While they were there, the appellant attended again to collect the package pursuant to the authority he had emailed. The officers asked him to participate in a recorded interview. The appellant said that he could not do so then, but an interview took place two days later on 11 June. During that interview, the appellant admitted sending the email (“Look, can I admit on something? Yes they did, and I emailed it myself as it’s his, okay, from my own email address. I just told, Look, blah, blah, blah, blah, authorising, whatever, and then she said to me, Yeah, that’s fine”). He said he was collecting the package at the request of a friend, Paul Mills. The appellant was not charged.

10. The Crown case in relation to counts 2 and 3 may conveniently be summarised together. In September and October 2010, consignments were imported into Australia from Quezon City in the Philippines and New Delhi, India containing (a) 310.2 grams of pure cocaine concealed inside a chopping board and (b) 1,268.6 grams of pure heroin concealed inside mechanical valves. The chopping board which concealed cocaine was in a FedEx box, and was flown as air cargo to Sydney. The carton containing the heroin concealed in mechanical valves appears to have been flown as air cargo by TNT. The consignee for both packages was JG Hancock Pty Ltd, whose address was stated to be Level 1, 57-59 Parramatta Rd, Lidcombe with a contact telephone number of +612 800X X924.

11. The woman who, according to ASIC records, was the sole director and shareholder of JG Hancock Pty Ltd, gave evidence that she was a friend of the appellant but was unaware of the directorship or shareholding. The materials suggest that she appeared to suffer from an intellectual impairment. After the conclusion of her evidence, the judge said words to the effect that she was “obviously considerably disabled”. When interviewed by customs agents, the appellant said “I think she’s mentally not there”.

12. In October 2010, a federal agent attended premises at Level 1, 57-59 Parramatta Rd Lidcombe and met the appellant, who gave him a United Trade Card business card. The deposit on the lease for Suite 2 at the Lidcombe address was paid by a cheque drawn on the account of “G Haddad t/a United Trade Card” and signed by the appellant. The telephone number on the business card was the same telephone number stated on both packages, +612 800X X924. Despite being linked to the delivery address, the appellant did not ultimately take possession of the packages the subject of counts 2 and 3.

13. In relation to Count 5, a DHL cardboard box was imported into Australia on 30 January 2011 from Mumbai, India containing 968 grams of pure ephedrine concealed inside metal rollers. DHL caused the box to be flown from Mumbai to Sydney via Singapore. The consignee was Marcos Steven, of JG Hancock Pty Ltd, Level 1, 55-57 Parramatta Rd Lidcombe (the same consignee and address as in counts 2 and 3). Delivery was attempted, but there was no JG Hancock Pty Ltd at that address. DHL received a telephone call from a man saying he was “Michael” and requesting that the consignment be delivered to JG Hancock Pty Ltd, Level 1, 14 Telopea Avenue, Homebush. At that building, the appellant accepted delivery of the box; as will be seen below, he had rented those premises shortly beforehand, with a United Trade Card cheque signed by him dated 25 January 2011.

14. Shortly thereafter, on 4 February 2011, pursuant to a warrant, customs officers seized the package and conducted a search of the premises. The search was filmed and recorded. Customs officers took a computer tower, a 2011 diary and five mobile phones. The computer tower recorded the phone number which “Michael” had provided to DHL and had also been used to access the DHL website, to track the progress of the box. The 2011 diary contained information principally relevant to count 4 which is addressed below.

(b) Count 4 – a commercial quantity of heroin

15. Count 4 was different. Evidence relating to it occupied most of the trial. First, the importation occurred by sea. The vessel MOL Seabreeze arrived in Brisbane on 4 January and Sydney on 8 January 2011. There were two bills of lading in evidence. Both stated that the container was loaded in Karachi, Pakistan, with destination Sydney. The shipper was “Kay-Tee Industries”, Sialkot, Pakistan. One stated that the consignee was the freight forwarder Henning Harders Australia Pty Ltd, of William St in Sydney; it also stated that the agent at destination was Henning Harders, and the actual carrier was ANL Singapore Pte Ltd. The other stated that the consignee was World Star 88 Pty Ltd, 65 Bourke St, North Parramatta with two contact telephone numbers:  +612 405 XXX 202 and +612 298 XXX 766. (Some of the numbers appear to have more or fewer digits than might be expected; throughout these reasons, the numbers are reproduced as they appear in the evidence.) It seems likely that the differences in the bills of lading reflect the freight forwarders’ ordinary processes; in any event, nothing turns on them.

15. Both bills of lading described the goods as “3 pieces of machines”. In the container were two large metal lathes containing 16,860.8 grams of pure heroin; the other piece of machinery was not specified.

16. In evidence was an undated letter sent on the letterhead of the shipper, Kay-Tee Industries, in Pakistan to Henning Harders (a witness said that it had been sent by email) in these terms:

“TO,

       ANL

SUBJECT: CHANGE OF CONSIGNEE, CNTR#: INKU6314464, POD: SYDNEY, BL#:PKSKT/AUSYD/10/040

Dear Sir,

            Refer to above mentioned shipment detail our consigned party refused to accept order, goods already arrived at destination so plz release the goods to following cnee after collecting our advised charges & demurrage charges

ESANN ENTP PVT LTD [sic]

ABN 34146381946

LEVEL 16/309 KENT STREET SYDNEY

NSW 2000 AUSTRALIA

TEL: 02-800 XX 924 FAX: 02 800 X819 [sic]

INSTEAD OF

WORLD STAR 88 PTY LTD                                                       KAY-TEE INDUSTRIES

65-BOURKE ST.                                                                         Proprietor

NORTH PARRAMATTA NSW 2151.

We will pay amendment cost”

18. The letter was linked to the appellant in at least three ways. First, the 924 telephone number was the same telephone number on the appellant’s United Trade Card business card, and had been used on the packages the subjects of counts 2, 3 and 5. Secondly, the appellant signed an application for serviced offices at 309 Kent St on 10 March 2009. Thirdly, the new consignee, Esaan Enterprises Pty Ltd, had been incorporated on 16 September 2010. Its sole director and shareholder was the same woman who had been named as the sole director and shareholder of JG Hancock Pty Ltd. Again, she gave evidence that she was unaware of the directorship or shareholding, and denied that the signature on the ASIC application form was hers. The registered office and place of business of Esaan Enterprises was Level 1, 55-59 Parramatta Rd, Lidcombe, and GPO Box 3058. It will be recalled that (a) the street address was very similar to that given for JG Hancock Pty Ltd, and (b) the post office box had been leased by the appellant.

19. On 24 and 25 February 2011, the mobile telephone number 0420 XXX 986 made calls to Henning Harders enquiring about the storage costs and the cost of sending the container to various African countries. The caller gave [email protected] as the contact email address.

20. Mr Dion Williamson, an export manager at Henning Harders, exchanged emails with [email protected] on 14 and 15 March 2011. Their subject was “CONTAINER EXPORT – EAST AFRICA”. That dated 14 March 2011 said:

“Hi Carlos,

I have some rates as requested to East Africa, with a couple of options on shipping lines.

There is the matter of outstanding import storage, detention, oceanfreight and Sydney port charges which we need to raise an invoice. The longer this cargo sits on the wharf the more it is costing you.

Please contact me so we can go through thoroughly .... Recently left 2 messages for you on your mobile.”

21. That dated 15 March was as follows:

“G’day Carlos,

As discussed yesterday attached is a detailed quotation, which includes storage, detention, freight and import terminal fees till the end of March 2011.

The matter of the original bill of lading is still outstanding, please let me know how you are progressing with this.

Please forward your new mobile number when you have a chance.

If you have any problems or queries do not hesitate to contact me.”

Attached was a quotation for carriage from Sydney to Dar es Salaam, Tanzania via Malaysia.

22. There was uncontroversial evidence that the email address [email protected] was accessed on 12 March and 16 April 2011 from an IP address subscribed to by the appellant’s mother at Chester Hill. The appellant had been arrested on 4 February 2011 following his receipt of the DHL carton which constitutes count 5, and released on bail. A term of his bail was that he reside at his mother’s address.

23. There was also uncontroversial evidence that the email address of [email protected] was created on 26 January 2011 at an IP address subscribed to by the appellant’s father in law at an address in Punchbowl. In his interview, the appellant admitted that he had changed the password for this email address. Another email address, [email protected], was created on 27 January 2011, with a billing address which was similar to the revised delivery address for the Count 5 consignment. The name of the subscriber was given as Carolos Haviv, and his date of birth was 3 August 1975 (the appellant’s date of birth was 3 August 1972). On 25 January 2011 a mobile number, 0415 XXX 326 was subscribed in the name of Carlos Haviv with date of birth 13 August 1975. There was also evidence that on 2 February 2011, the appellant signed a contract for the supply of a printer using the false name of Carlos Franken, stating a birth date of 3 September 1972 and a contact email of [email protected].

24. On 6 April 2011, Henning Harders telephoned the number given for Esaan Enterprises, +612 800X X924. The receptionist of the serviced offices left a message for the appellant which included:

“Container arrived from

K-T Industries

Had spoken to Carlos previously.

Rang United Trade Card asking for Carlos.”

25. Within the 2011 diary which was seized by customs agents when the appellant accepted delivery of the DHL package containing ephedrine, on the pages for 27-30 January 2011, were recorded, in the appellant’s hand:

“Carlos Haviv 3/8/75

0420 XXX 911

8662 XXX 800

02 97XX X001

[email protected]

Carlos Eduardo Franken

DHL”

26. A copy of the quote from Henning Harders supplied on 15 March 2011, which had been sent by email to [email protected], was located on a computer seized from the Chester Hill address. Part of an envelope on which was handwritten “Esaan Enterprises” and “Henning Harders (Aust) PL” was seized in a bedroom used by the appellant in Punchbowl. The envelope contained the appellant’s fingerprints. A letter from the Australian Taxation Office addressed to Esaan Enterprises at GPO Box 3058 was seized from the appellant’s wife’s car. Also in the car was a Telstra receipt and mobile telephone contract in the name of Esaan Enterprises Pty Ltd with “Mr Gaby Haddad” named as the company representative. The SIM card for 0420 XXX 986, one of the numbers recorded as making calls to Henning Harders in February and March 2011, was also seized from the appellant’s wife’s car. The SIM card for 0415 XXX 326, subscribed to in the name of Carlos Haviv, was seized at the appellant’s serviced office.

27. The Crown case at trial was that the appellant used the name Carlos Haviv, and the email address [email protected]. By the time the ruling as to tendency and coincidence evidence was sought, that aspect of the case was overpowering, having regard (inter alia) to (i) the presence in the appellant’s wife’s car of the SIM card for 0420 XXX 986, which was used to contact Henning Harders in the name of Carlos when the [email protected] email address was given, (ii) the fact that the email address had been created at the appellant’s father in law’s house, (iii) the messages for Carlos which were left with the staff at the appellant’s serviced offices, (iv) that whilst on bail, the email address [email protected] was accessed from the address at which the appellant was required to reside, and the computer which contained the Henning Harders quote for carriage of the container to Dar es Salaam was seized at that address, and (v) the names, dates of birth and telephone numbers in the diary seized by customs agents on 4 February 2011.

(c) Comparing and contrasting counts 1, 2, 3 and 5 with count 4

28. It may now assist to summarise some of the differences and similarities between the conduct alleged to constitute count 4 as opposed to counts 1, 2, 3 and 5.

29. The differences included the following:

1. Count 4 involved carriage by sea, by container, using a freight forwarder, of a commercial quantity of a prohibited drug.

2. The lathe containing the heroin was not in fact delivered to the appellant, and it was not established how indeed physical delivery could have been effected.

3. The quantity and purity were much higher (the mixtures concealed in the valves in count 1 weighed no more than 1.33 grams, and contained caffeine, paracetamol and between 4% and 6% heroin; the mixtures concealed in the lathes each weighed 1 kilogram, and contained between 59% and 64% heroin).

4. The importation by sea from Pakistan was in many ways more sophisticated than the other counts which involved small packages sent by post or by air cargo using door to door carriers; the primary judge said that:

“it required a metallurgist to detect the anomalies in the lathe equipment that led to the finding of a cavity concealing the drugs. It also required substantial engineering equipment to expose the concealed cavity. This importation is a very serious offence both in its sophistication and in regard to the quantity of heroin imported which is said to be worth in the vicinity of seven million dollars wholesale.”

30. The similarities included the following:

1. Just as in the case of counts 2, 3 and 5, the consignee for count 4 was a company whose sole director and shareholder was a woman who said she was unaware of JG Hancock or Esaan Enterprises.

2. Just as in counts 2, 3 and 5, where the consignee’s stated address was Level, 1 57-59 Parramatta Road, Lidcombe, the registered principal place of business for the eventual count 4 consignee, Esaan Enterprises, was Level 1, 55-59 Parramatta Road, Lidcombe.

3. Just as in the case of count 1, the new consignee’s address for count 4 was an address linked to the appellant. The appellant had leased GPO Box 3058 (the address to which the hessian wrapped package was redirected), and premises at 309 Kent St (the address of Esaan Enterprises given on the letter from Kay-Tee Industries).

4. Just as in the case of count 1, the Crown case was that the appellant had impersonated the consignee for count 4. The appellant had admitted that he had sent an email pretending to be from Pouln Mills stating that he was authorised to collect the hessian package. Likewise, the Crown said that the appellant created Esaan Enterprises and used Ms Koehler’s name. One of the addresses given to ASIC for Esaan Enterprises was GPO Box 3058, which the appellant had leased.

5. The consignee’s contact telephone number given for counts 2, 3 and 5 was +612 800X X924. The ASIC form to register Esaan Enterprises, the new consignee in count 4, gave as the contact telephone number 02 800X X925.

6. The FedEx account listed the phone number for JG Hancock, used in respect of count 2, as +61 424 XXX 229. The same number was recorded as an incoming call to Henning Harders on 10 March 2011 at 2.30pm. The subscriber’s address for that number was Priam St, Chester Hill, where the appellant’s mother lives. It was a condition of the appellant’s bail that he reside at that address.

Grounds 1 and 2 – tendency and coincidence evidence

(a) The statutory provisions

31. Section 94 provides a series of exceptions from the application of Ch 3 Pt 3.6 (ss 94-101) (to evidence relating only to the credibility of a witness, to a proceeding relating to bail or sentencing, or if character, reputation, conduct or tendency is a fact in issue); it is not presently applicable. Sections 95, 97, 98 and 101 of the Evidence Act 1995 (NSW) relevantly provide as follows:

95 Use of evidence for other purposes

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

32. Section 101 refers to “tendency evidence” and “coincidence evidence”. Those terms are defined in the Dictionary:

“‘tendency evidence’ means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.

‘coincidence evidence’ means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.”

33. I return below to the importance of the purpose of the evidence being adduced, which is an element of both definitions.

34. Sections 97 and 98 took their current form following amendments made by the Evidence Amendment Act 2007 (NSW) with effect from 1 January 2009. The provisions replace the common law tests applicable to “similar fact” evidence. In DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758 at [46], this Court referred to the High Court decisions prior to 2007 which, although variously formulated, required similar fact evidence to have a sufficiently high degree of probative value. A similar requirement exists under the statute. As Whealy JA, who delivered the leading judgment of this Court constituted by five judges, said at [48]-[49]:

“In its terms, the purpose of the coincidence rule is to render inadmissible similar fact evidence unless prior notice of the use of such evidence has been given, and unless the Court thinks that the evidence either by itself or having regard to other evidence to be adduced by the party seeking to adduce the evidence will have significant probative value.

In criminal proceedings, s 101, as has been seen, imposes an additional hurdle to the admission or use of coincidence evidence. The probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant.”

35. There is presently a divergence between New South Wales and Victorian appellate decisions on these provisions: see Velkoski v The Queen [2014] VSCA 121 at [164] and Saoud v R [2014] NSWCCA 136 at [35]-[37]. It will not be necessary, in order to resolve this appeal, to address those differences in any detail. There are also subtleties in these provisions which may not be well understood; certainly, they were not mentioned at trial or on this appeal.

36. First, it is important to observe that ss 97 and 98 are rules precluding the admissibility of evidence to prove a “particular matter” (to use the language of s 95). Section 97 provides that “evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind” unless its requirements are satisfied. Section 98 provides that “evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally” unless its requirements are satisfied. It is convenient to denote the modes of reasoning precluded by ss 97 and 98 as “tendency reasoning” and “coincidence reasoning” respectively.

37. In addition to the requirements of ss 97 and 98, in a criminal trial, s 101 requires (subject to presently irrelevant exceptions) that tendency evidence and coincidence evidence cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

38. Neither s 97 nor s 98 precludes the admissibility of evidence per se. The sections make evidence inadmissible for a particular purpose, namely, to prove “particular matters”. Those sections must be read with ss 95 and 94, as the High Court said in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668 at [30]. Section 95 constrains the use which may be made of evidence even if it is relevant and admitted and available to be used for another purpose. When a trial is by judge and jury, that will ordinarily require a direction to be given.

39. The importance of s 95 in this context was noticed by Ireland J, with whom Hunt CJ at CL and Levine J agreed, in R v AH (1997) 42 NSWLR 702 at 708. In that trial there was evidence which was admissible as part of “the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated” (quoting the language of Deane J in B v The Queen [1992] HCA 68; 175 CLR 599 at 610). Ireland J said that “[o]nce admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion, he did the act in question unless it does comply with [the requirements of ss 97 and 101], and the judge should direct the jury that they may not use it in that way unless it does comply”.

40. Secondly, and consistently with the foregoing, the definitions of “tendency evidence” and “coincidence evidence” refer to a party’s purpose in tendering the evidence. It may be that the primary purpose of adducing evidence is to establish one count, although there is a secondary purpose of relying on tendency or coincidence reasoning to establish another count. That was the position in this case, and was considered by Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [135] (emphasis in original):

“The evidence under consideration was not coincidence evidence strictly so called. That is because ‘coincidence evidence’ is defined in the Dictionary to the Evidence Act as evidence that a party seeks to have adduced for the purpose of establishing that, because of the improbability of two or more related events occurring coincidentally, a person did a particular act or had a particular state of mind. The evidence that was, in this case, referred to as coincidence evidence was, in reality, evidence tendered by the DPP to support one charge or the other. All of the evidence was admissible in respect of the charge to which it related. It was tendered for that purpose, and not for the purposes of s 98. What the DPP sought to do was to expand the use that might be made of the evidence relevant to one count in order to strengthen its case on the other count. But that was a secondary purpose, and not the primary purpose, for which the evidence was tendered. Had the DPP not sought to rely on the evidence on each count as relevant to the other, s 95 would have precluded the use of the evidence on one count to establish, by rebutting the coincidental occurrence of the two events, the appellant’s guilt on the other count.”

It may be seen that her Honour also referred to the importance of s 95 in this context.

41. The point is made in S Odgers, Uniform Evidence Law (11th ed, 2014) at pp 471-472:

“The fact that the evidence in question is admissible for another use and has been admitted into evidence, does not mean that s 97 has no work to do (because it only deals with admissibility). The point is put beyond doubt by s 95(1). If the evidence ‘is relevant for another purpose’ (that is, relevant other than to prove a tendency to act or think in a particular way), the evidence ‘must not be used to prove that matter’ (that is, must not be used to prove such a tendency) if the evidence is ‘not admissible to prove’ such a tendency (that is, if the conditions of s 97 are not satisfied).”

42. That is to say, s 95 precludes use being made of evidence, even if the evidence is not “tendency evidence” or “coincidence evidence” as defined in the Dictionary because the evidence was not tendered for the purpose of invoking tendency or coincidence reasoning. Unless ss 97, 98 and 101 are complied with, the evidence cannot be used to support a submission based on tendency or coincidence reasoning, and (as Ireland J said in R v AH) the jury should be directed accordingly.

43. The application of those provisions to the present case is as follows. None of the exceptions in s 94 applied. Accordingly, s 95 was applicable. Section 95 meant that evidence relevant to counts 1, 2, 3 and 5 which was not relevant to count 4 except insofar as it might be admissible to prove that the appellant (a) had a tendency to act in a particular way, or (b) did particular things because the similarities made it improbable that they were coincidences, could not be used for either purpose unless ss 97, 98 and 101 were satisfied. Conversely, evidence relevant to count 4 which was not relevant to the other counts except insofar as it involved tendency or coincidence reasoning could not be used for that purpose unless ss 97, 98 and 101 were satisfied.

44. Commonly, the occasion for a dispute about whether those requirements have been satisfied is an application for a separate trial: see for example DSJ v The Queen at [43]-[44], DAO v The Queen [2011] NSWCCA 63 and JG v R [2014] NSWCCA 138. However, no challenge was made to the prosecutor’s decision to proceed on all five counts (I am not suggesting that a challenge was open). Hence, on any view, the evidence was relevant to matters in issue at the trial. Moreover, no steps had been taken to limit the use which might be made of the evidence as it was adduced during the course of the Crown case. I proceed on the basis that, by reason of the objection having been flagged at the outset, it was open to the defence, at the conclusion of the Crown case, to obtain a ruling on the applicability of s 97 and 98, which would carry with it consequences for the remainder of the case. The prohibition in s 95 can prevent a prosecutor from advancing a particular argument (see for example Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; 207 FCR 448 at [33]). Most relevantly in a case like the present, where there was a trial before a jury on all counts, the outcome of the ruling would bear directly upon the directions to be given to the jury.

45. Ultimately, the question which arose at the conclusion of the Crown case was whether the prohibition in s 95 applied, such that no process of tendency or coincidence reasoning could be entertained by the tribunal of fact, or whether that prohibition was inapplicable, because the requirements of ss 97, 98 and 101 had been met.

(b) The overlap between tendency reasoning and coincidence reasoning

46. The “tendency rule” and the “coincidence rule” are distinct, although it is trite that there is an overlap between the two, as was observed, for example, in KJR v R [2007] NSWCCA 165; 173 A Crim R 226 at [46]. More recently, in Saoud v R [2014] NSWCCA 136 at [43], Basten JA observed that there is awkwardness in separating “tendency” evidence and “coincidence” evidence where there is no dispute as to the identity of the alleged offender but what is in issue is whether the offences occurred: in a sexual assault case, evidence of an accused’s conduct on another occasion is apt to support reasoning to the effect both that it is improbable that two complainants made independent complaints of similar conduct and that the offender has a tendency to conduct himself in a particular way. The “overlap” or “awkwardness” comes about because of the generality of the modes of proof described in ss 97 and 98, and because tendency evidence will usually depend on establishing similarities in a course of conduct. As Basten JA said in Saoud at [48], “where relevant and appropriate, a proper consideration of similarities will constitute an essential part of the application of s 97, as this Court has accepted on numerous occasions”.

47. Insofar as the Crown sought to use the evidence relating to counts 1, 2, 3 and 5 to support count 4, it was principally based on the coincidence rule. Much of the evidence relating to counts 1, 2, 3 and 5 was not relevant to count 4, and vice versa, unless it supported a conclusion that it was improbable that the various similarities mentioned above (for example, the same GPO box, the same Lidcombe address, the use of the same 0420 XXX 986 and 02 800X X924 telephone numbers) were explained by coincidence. If that threshold were overcome, then the coincidence rule in s 98 would nevertheless render the evidence inadmissible, despite its relevance, unless (a) notice had been given, (b) the evidence would have significant probative value, and (c) its probative value substantially outweighed any prejudicial effect.

48. In some respects, parts of the evidence relevant to counts 1, 2, 3 and 5 could be regarded as relevant to count 4 if it were regarded as tendency evidence, rather than coincidence evidence. For example, take the evidence that telephone and internet accounts associated with the evidence relevant to all charges were entered into using similar names and dates of birth, which included:

1. The email address [email protected] was subscribed to by “Carolos Haviv” with date of birth 3 August 1975;

2. The telephone line at Telopea Avenue Homebush where the appellant accepted delivery of the DHL box was subscribed on 1 February 2011, in the name of Mr Carlos Haviv with date of birth 3 August 1975;

3. 0415 XXX 326 was subscribed by “Carlos Haviv” with a date of birth 13 August 1975;

4. A printing contract with Fuji Xerox Australia Pty Ltd was entered into under the name Carlos Franken with a date of birth 3 September 1972 and email [email protected] on 2 February 2011; a Fuji Xerox employee identified the man who signed the contract as the appellant;

5. In his recorded interview with customs officers on 11 June 2010, in answer to question 23, the appellant gave as his date of birth “Third of the eighth, nineteen seventy two” and in answer to the same question when repeated at question 34, “Third of May, nineteen seventy two”.

49. The Crown submitted that those pieces of evidence (and others) supported a conclusion that the appellant was involved in all five counts, because it was improbable that the similarities in names and dates of birth occurred coincidentally. The Crown also submitted that the appellant had a tendency to use false names involving “Carlos” and to give false dates of birth which were similar to his own. The former mode of reasoning attracts the coincidence rule, the latter, the tendency rule.

50. Accordingly, although I would regard this case as being one which predominantly involves coincidence reasoning, the overlapping prohibitions in ss 97 and 98 were each capable of applying, and hence it was appropriate and necessary for the Crown to seek to comply with both. (It seems unnecessarily burdensome, and for no gain, for the Evidence Act to contain overlapping and broadly expressed prohibitions, both of which may be engaged by the same evidence, and to require essentially duplicate notices to issue, and for identical tests thereafter to be applied, unless the party seeking to tender the evidence wishes to run the risk of obtaining a dispensation under s 100, but that is the course adopted by the Act.)

51. Consistently with the foregoing, it seems that little distinction was made between the tendency rule and the coincidence rule at trial. This is relevant to one aspect of the grounds of appeal.

(c) Were the protections given by ss 97, 98 and 101 complied with?

52. Unless dispensation under s 100 is obtained, ss 97 and 98 require reasonable notice in writing to be given. Otherwise, the prohibition on use for a forbidden purpose will apply even if the evidence is admissible for another purpose.

53. Two unsatisfactory notices purportedly pursuant to ss 97 and 98 of the Evidence Act 1995 were given by the Crown on 13 June 2012, 12 days before the case began. Each notice said that the substance of the “tendency” or “coincidence” evidence which the prosecution intended to adduce was “contained within the following documents”. Each notice then listed no fewer than 110 statements which had been served as part of the Crown case (it may be inferred from the Crown opening that they amounted to every statement served in the Crown case).

54. The tendency notice stated that:

“the purpose sought to be achieved by the prosecution in adducing the evidence is to establish that the accused had a tendency to import border controlled drugs and precursors.”

55. The coincidence notice stated:

“The purpose sought to be achieved by the prosecution in adducing the evidence is to establish that the accused:

(a) possessed and attempted to possess packages, arriving in Australia from overseas and containing border controlled drugs or precursors;

and/or

(b) knew and/or was associated with details pertaining to such packages including, addressees, persons (or persons’ names), companies (or companies’ names), addresses, email addresses and telephone numbers,

and that because of the improbability of those circumstances occurring coincidentally, the accused imported border controlled drugs and precursors.”

56. It may be accepted that where, as here, the Crown case is wholly circumstantial, much of the evidence is apt to involve coincidence reasoning, and so the drafting of a notice presents some difficulty. However, the notices in the present case disclosed no attempt to identify what was the particular state of mind or particular act which was sought to be proven, and the circumstances in which those events occurred, which were improbably coincidental. See for example what Simpson J said, with the agreement of Buddin J, in R v Zhang at [131]. This is essential, for at least three reasons. The first is that the Court is required by s 98(1)(b) to determine the probative value of the coincidence-based use of the evidence on which the Crown relies. The second is that the Court is required by s 101 to evaluate that probative value against any prejudice which the accused may suffer. The third is that those requirements on the Court reflect long-standing protections accorded originally by the common law, and now by statute, against the apprehended misuse (especially by juries) of evidence of this nature. The protection conferred by ss 98 and 101 is not obviated by a seemingly mechanical notice in general terms identifying the whole of the Crown case. The same is true to the extent that the evidence was sought to be relied upon for a tendency purpose. As was said in Bryant v R [2011] NSWCCA 26; 205 A Crim R 531 at [50] (Howie AJ, McClellan CJ at CL and Simpson J agreeing):

“The importance of explicitly identifying the related events for the purpose of s 98 and the asserted tendency for the purpose of s 97 should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence.”

57. At the outset of the trial, on 25 June 2012, before the jury was empanelled, the defence flagged that there would be an objection to the evidence being admitted as tendency or coincidence evidence. What happened on that front over the next fortnight is not fully disclosed by the materials available to the Court. However, on the weekend before the close of the Crown case, on 7 July 2012, a further notice was sent by the prosecutor identifying with precision the evidence that had been adduced in the course of the trial. Over 14 pages, the document identified evidence which had been adduced relevant to each of the counts, and attached a 9 page “Note on tendency and coincidence”. Some aspects of that note were directed to similarities between counts 1, 2, 3 and 5 (for example, the mechanical valves sent from New Delhi the subject of counts 1 and 3 were identical); this is not relevant to the more refined challenge that is made on appeal. Focussing on the paragraphs that drew connections between count 4 and the other counts, the note contained detailed submissions on the redirection using false names in relation to counts 1, 4 and 5 (paragraphs 8-12) and details of the falsely subscribed mobile numbers and use of the identity “Carlos” (paragraphs 16-39). The notice then stated that the existence and quantities of border controlled drugs and precursor were not in issue, and that the appellant’s (undisputed) conduct in respect of package 1 and 5 satisfied the physical element of importing. The notice concluded as follows:

“42. This leaves the facts in issue:

(a) Did Mr Haddad (physically) import packages 2, 3 and 4?

(b) Did Mr Haddad intend each of packages 1 to 5 to contain a border controlled drug (or precursor)?

Tendency

43. The Crown wishes to rely on the evidence outlined above to prove that Mr Haddad had a tendency to:

(a) Have packages directed to companies, viz JG Hancock and Esaan Enterprises, falsely registered in Ms XXXX's name;

(b) Have packages directed to work addresses, changed every couple of months;

(c) (Attempt to) collect and accept delivery of packages, addressed to others;

(d) Use false names to redirect or facilitate collection or delivery of packages;

and

(e) Use falsely subscribed mobile numbers and email addresses (including with details skirting around his own), to facilitate collection or delivery of packages.

Ultimately, the Crown wishes to suggest that Mr Haddad had a tendency to import packages he intended to contain border controlled drugs or precursors, and acted in these ways to avoid detection.

44. The practical effect of the evidence being admitted as tendency evidence would be that the jury would be permitted to reason that, if satisfied of Mr Haddad's conduct on a charge, it could use that when considering its verdict on another charge. For example: if the jury were satisfied Mr Haddad intentionally imported package 5 addressed to JG Hancock, it could use that to be satisfied of charges 2 and 3; or if the jury were satisfied Mr Haddad used a falsely subscribed mobile to redirect package 1, it could use that to be satisfied he used falsely subscribed mobiles dealing with packages 4 and 5.

Coincidence

45. The Crown wishes to rely on the evidence outlined above to prove that Mr Haddad imported packages 1 to 5 intending them to contain border controlled drugs or precursors on the basis that, having regard to the following similarities it is improbable that they occurred coincidentally:

(a) Mr Haddad attempted to collect package 1 and accepted delivery of package 5, both containing border controlled drugs or precursors;

(b) Packages 2, 3 and 5 were addressed to JG Hancock and package 5 was redirected to Esaan Enterprises, both of which were registered to Ms XXXXX but over which Mr Haddad had control;

(c) Package 1 was redirected to Mr Haddad's GPO Box, packages 2, 3 and 5 were addressed work addresses [sic] then used by Mr Haddad, and package 4 was redirected to a work address formerly associated with Mr Haddad;

(d) The addressee telephone number for packages 2 and 3 and redirected address telephone number [sic] for package 5 was Mr Haddad's landline; and

(e) Carlos, who dealt with Henning Harders and (kay-tee) [email protected], is readily attributable to Mr Haddad. Also, seized from Mr Haddad or his home or workplaces were:  the 2011 diary containing many Carlos (and other) details:  SIMs used to call Henning Harders, and ones falsely subscribed; and other documents associated with package 4.

46. The Crown further wishes to invite the jury to use this evidence to rebut the assertions made by Mr Haddad in his ROIs (and if he gives evidence to similar effect), that he was merely a hapless player.”

(d) The application before the primary judge

58. On 9 July 2012, immediately following the close of the Crown case, the Crown sought a ruling in accordance with that note. Objection was taken to the lateness of the original and replacement notice, by reference to the requirements identified by Simpson J in R v Zhang. The primary judge, with respect correctly, held that the original notices were insufficient.

59. The primary judge gave ex tempore reasons immediately, in favour of the Crown. His Honour regarded the second notice as sufficiently specific. No point was taken on appeal that the second notice was issued too late (again, this should not be read as implying that a point was open to be taken). The primary judge set out the material before him, and gave short reasons stating that he was satisfied that the evidence had significant probative value, and was capable of being perceived by the jury as significantly probative. His Honour referred to the test in s 101 but did not expressly apply it. His Honour said merely:

“[I]t seems to me that where one has regard to the criteria involved for coincidence and tendency to be admitted and the nature of these offences, that I should admit this evidence as tendency and coincidence evidence.”

(e) The resolution of the challenge to tendency and coincidence evidence in this appeal

60. There appears to have been a degree of procedural looseness in what occurred. All the evidence the subject of the ruling had already been admitted. Save for the generalised objection advised at the outset of the trial, the evidence had been admitted without restriction. Despite the language used by the Crown, the defence and the Court, the better view is that the evidence was not, strictly speaking, “coincidence evidence” or “tendency evidence” at all – it was evidence tendered primarily to establish the counts to which it related. What his Honour was in truth doing was determining whether and to what extent the prohibition in s 95 upon the use of evidence which had been tendered (and whose admission into evidence had not been objected to) to prove particular matters applied. That determination would affect, inter alia, the submissions able to be made and the directions to the jury.

61. As noted above, the grounds of appeal merely asserted error “in admitting the evidence” as tendency and/or coincidence evidence as between count 4 on the one hand, and counts 1, 2, 3 and 5 on the other hand. Both parties’ submissions on appeal eschewed any more precise approach to analysis, and accordingly I proceed on the basis that the question is whether appellable error is demonstrated by the way in which the primary judge addressed the question when, finally, it was presented for his determination.

62. The primary judge considered that the evidence had significant probative value. The thrust of the appellant’s attack on these grounds was twofold. First, it was said that in determining that there was significant probative value, the judge had failed to have regard to the dissimilarities. Secondly, it was said that much of the reasoning relied upon was coincidence-based reasoning, not tendency based reasoning.

63. “Significant probative value” has been held to mean “something more than mere relevance but something less than a ‘substantial’ degree of relevance”: R v Lockyer (1996) 89 A Crim R 457 at 459; DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758 at [58] and [60]; C V v DPP [2014] VSCA 58 at [14] (there are many other examples). So much may be accepted, and I regard myself bound by what was said in this respect in DSJ, but in my respectful view it is of little assistance.

60. “Significant” and “substantial” are words whose meaning is strongly influenced by their context. Substantial does not always entail significant. As much is clear from the requirement that the use of non-rural land for primary production “has a significant and substantial commercial purpose or character” in order to be exempt from land tax: see Land Tax Management Act 1956 (NSW), s 10AA(2) and see Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 408; the requirements of “significant” and “substantial” in s 10AA(2) are cumulative. Indeed, Deane J said that “substantial” is a word which is “not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision”: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 132; 42 FLR 331 at 348. Accordingly, to say that “significant probative value” amounts to a probative value which falls short of “substantial probative value” is an inquiry which seems unlikely to assist, and may indeed distract. If anything, the comparator “substantial probative value” is less clearly defined than the statutory term “significant probative value”, and it is the statutory language which must be applied to determine the admissibility and valid use which may be made of tendency evidence. I respectfully agree with what was said by Priest JA (with whom Buchanan and Ashley JJA concurred) in Semaan v The Queen [2013] VSCA 134 at [38] that “attempts at reformulation of the statutory language are unlikely to be productive of much in the way of enlightenment”.

61. The question posed by the statute is what is significant probative value in this context?

62. In Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; 61 FCR 171 Lehane J formed the view that guidance was available from cases decided before the Evidence Act came into force. I respectfully agree. As much is common ground in New South Wales and Victoria (see Velkoski at [162] and Saoud v R [2014] NSWCCA 136 at [38]). The statutory text did not emerge from a vacuum. Where as here the legislative text is patently open-textured, the immediate context – namely, its replacement of common law rules restricting the use of a particular type of evidence – is especially apt to illuminate its legal meaning.

63. Lehane J said:

“What is clear is that courts have exercised a considerable degree of caution in admitting similar fact or tendency evidence. They have described the degree of cogency required of such evidence in a number of ways, some at least of which give some guidance, I think, as to the meaning of the concept of "significant probative value" which appears in s 97. For example, there are the phrases "striking similarities" and "underlying unity" seen in some of the criminal cases … It is clear also that where in reported cases evidence of this kind has been admitted, it has been, as a matter of common sense, clearly and strongly probative of the relevant fact in issue …”

68. To similar effect, in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 485, Mason CJ, Deane and Dawson JJ said (emphasis added):

“the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”

69. The language which has been used to describe the requisite significant cogency was conveniently explained further in Phillips v R [2006] HCA 4; 225 CLR 303, a decision on the position at common law (see at [8]), by a unanimous High Court at [54]. Their Honours referred to “the need for similar fact evidence to possess some particular probative quality”, the requirement of “a strong degree of probative force” and that the evidence must have “a really material bearing on the issues to be decided”.

70. Accepting as I do that ss 97 and 98 need not equate to the common law test which they replaced, I still regard that background as informing “significant” in s 97. The same appears from DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758 at [45]-[46]. “Significant” is directed to the probative value of the evidence. One way in which tendency evidence possesses significant probative value turns on the degree of generality or specificity with which the “tendency” is stated. A tendency which is stated with too high a level of generality will prove a handicap to its having significant probative value. Examples may be seen in Townsend v Townsend [2001] NSWCA 136 at [78], Ibrahim v Pham [2007] NSWCA 215 at [264] and R v Ford [2009] NSWCCA 306 at [53]. Conversely, “generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value”: BP v R [2010] NSWCCA 303 at [108].

71. Most recently, in Sokolowskyj v R [2014] NSWCCA 55 at [40], Hoeben CJ at CL said that:

“One of the difficulties for the Crown in establishing ‘significant probative value’ was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly.”

72. That is to say, the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.

73. The appellant’s submissions focussed on the dissimilarities between the evidence in respect of counts 1, 2, 3 and 5 on the one hand, and count 4 on the other, and contended that the primary judge had erred in failing to consider those dissimilarities. The appellant identified those dissimilarities as:  (a) a shipping container, (b) which was shipped, not posted, (c) which came from Pakistan, (d) which involved a very much more substantial quantity of heroin, (e) whose re-direction came from the consignor rather than the consignee, and (f) which was much more sophisticated, including in respect of how the heroin was concealed. The appellant gave prominence to the fact that, unlike the other four counts, it was not alleged that the appellant possessed or attempted to possess the container or its contents, or, for that matter, that he had the capacity to do so.

74. I do not accept the appellant’s submission based on dissimilarities per se. Evidence which supports tendency or coincidence reasoning turns on whether there are relevant similarities or dissimilarities. Take for example one similarity:  the use of telephone numbers 02 800X X924 and 02 800X X925. The 924 number was written on the packages in Count 2, 3 and 5, and on the Kay-Tee letter requesting that the container be delivered to Esaan Enterprises. The ASIC form for Esaan Enterprises used the 925 number. It is no answer to the implausibility of the identical or almost identical number being used to point to the fact that count 4 involved carriage by sea, using a freight forwarder, of a container, of a much larger and much purer amount of heroin. The question is whether the similarity is explicable by coincidence, not whether there are other points of difference.

75. True it is that relevant dissimilarities may dilute the probative value of the evidence: see for example the quite different tendency evidence considered in Sokolowskyj v R [2014] NSWCCA 55 at [41], where the “marked dissimilarity” was summarised as follows:

“On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant's actions were ‘passive’. Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen.”

76. But here the dissimilarities to which the appellant points do not detract from the unlikelihood of the same addresses and telephone numbers being used coincidentally.

77. After all, the point of s 98 is to preclude a particular mode of inferential reasoning, as was said by Beech-Jones J, with the agreement of Hoeben CJ at CL, in R v MR [2013] NSWCCA 236 at [79]:

“[G]iven that s 98 is addressing evidence that is put forward to invite the trier of fact to engage in a particular form of probabilistic reasoning, it necessarily follows that the assessment of whether the evidence of the relevant events has either probative or significant probative value requires a consideration of the combined effect of all the relevant similarities. Unless they are all considered then the ‘basis’ upon which the evidence is put forward, namely that it is ‘improbable that the events occurred coincidentally’ and that instead the events are explicable by reason of the particular act or state of mind sought to be proved, such as the involvement of the same offender or offenders in all the events, cannot be properly addressed.”

78. The third member of the Court, Schmidt J, reasoned to the same effect at [10]. Likewise, attention was drawn to the inferential nature of these provisions by Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 at [25]:

“At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind.”

79. Despite the appellant’s submission to the contrary, the evidence was significantly probative. That is self-evidently so (and accordingly it is unnecessary to pause to consider whether the trial judge’s conclusion is reviewable in accordance with House v The King (1936) 55 CLR 499 or alternatively Warren v Coombes [1979] HCA 9; 142 CLR 531: see Zhang at [45]). The question is whether there is a real possibility of an alternative explanation inconsistent with the appellant’s guilt, based on the evidence together with the other evidence in the Crown case. If there is such an alternative possibility, then that may rob the evidence of its significant probative value, in the manner described by Bathurst CJ and Whealy JA in DSJ at [10] and [78]-[81]. But this was a case where, unless some exculpatory evidence was adduced in the defence case, it was overpoweringly probable that the appellant was involved in the conduct relating to each of the counts.

80. In respect of the second aspect of the appellant’s submissions, there is force in the observation that the trial judge focussed on the coincidence rule. However, that reflected the use to which the Crown sought to make of the evidence. This is primarily a case about coincidence evidence, not tendency evidence. Indeed, even the use of evidence about the use of “Carlos” and the dates of birth to which reference has earlier been made could equally naturally fall within coincidence reasoning. I do not consider that there was appellable error in the primary judge focussing upon the essential nature of the bulk of the evidence, in circumstances where there was little distinction drawn by the parties between s 97 as opposed to s 98.

81. Finally, the appellant submitted that s 101 prevented the evidence being admitted. It is fair to say that this was not at the forefront of the submissions advanced on appeal (or at trial). It was said that there should have been consideration of “the potential of the unfair prejudice that [the appellant] was prepared to adopt fraudulent behaviour of this kind in relation to a helpless woman”. I disagree. The evidence that the appellant used JG Hancock, of which a woman was sole director and shareholder, in relation to counts 2, 3 and 5 was relevant to those charges, and there was no separate application under s 135 based on unfair prejudice. The evidence that the appellant used Esaan Enterprises, of which the same woman was sole director and shareholder, was relevant to count 4, and there was no separate application under s 135 based on unfair prejudice. The prejudice to which s 101 is directed is prejudice based on the availability of tendency or coincidence-based reasoning which otherwise, but for the requirements of ss 97 and 98 being satisfied, would be precluded by s 95.

82. Section 101 will apply with much greater force when the only way in which evidence is said to be relevant is because of tendency or coincidence reasoning (for example, a sexual assault case where evidence is called of another complainant in respect of whom no charges have been laid). Where, as here, the evidence which was sought to be used for coincidence and tendency reasoning was (a) relevant to other charges which were able to be determined fairly at the same trial and (b) not said to be inherently unfairly prejudicial in its own right, then it is apt to be difficult for s 101 to apply so as to preclude tendency or coincidence reasoning based on it.

83. These grounds should be dismissed.

Grounds 3 and 4: “deal with the substance in connection with its importation”

(a) The course of the trial

84. At the close of the Crown case, the appellant sought a directed verdict in relation to count 4. The Crown pointed to the change of consignee from World Star 88 Pty Ltd to Esaan Enterprises, and to the enquiries made concerning the cost of shipping the container to Africa and discharging it from bond storage. The quotation from Henning Harders to Esaan Enterprises dated 15 March 2011 was found on the tower computer seized from the appellant. There was also evidence of conversations between Carlos and employees of Henning Harders and emails between them.

85. The primary judge took an expansive approach to the definition of “import”:

“It seems to me that once a substance has been imported, which is no doubt the case here in that the container was removed from the ship to the dock storage, then any actions taken in regard to that shipment would amount to dealing with the substance, even if such actions only related to the re-exporting of the item to a destination outside Australia. ‘Deal with’ is not defined in the Code dictionary, but I have been handed a dictionary extract and under the heading ‘Deal, dealt, dealing,’ the words appear, ‘1. To occupy oneself with. 2. To take action with respect to a thing or person, to conduct oneself towards persons, to trade or do business,’ and a number of other definitions or circumstances that do not really fit the present case.

As I said, the Crown argues that this person, Carlos, referred to on a number of occasions to do with this container is in fact Mr Haddad. Whether they can establish that beyond reasonable doubt will be a matter for the jury to determine. Carlos’s actions in seeking to find out the costs associated with the transportation of the container to Karachi to Sydney, its subsequent storage, and then its re-exportation to an African country, in my view, are actions on his part capable of fulfilling the definition of dealing with a substance. The fact that the dealing is said to relate only to exporting the item is, in my view, neither here nor there, because the item has to be firstly imported before it can necessarily be exported.

Whether an imported item is to finally end up in Australia, or elsewhere, does not matter, it seems to me, as far as the original importation is concerned. In my view, the definition is designed to cover any dealing in a substance once it has reached this country, whether that involves re-exporting it or distributing the substance within Australia.

Whilst Mr Carlos’ actions might only be regarded as inquiries, they are nonetheless actions that in my view fulfil the definition of dealing. Whether or not the jury sees it that way is another thing, and that is for the Crown to prove. But it is not a matter, in my view, that I should take from the jury.”

86. I respectfully disagree, for the reasons given below, with the generality of his Honour’s construction of “import”. However, I should say immediately that his Honour’s reasons were given ex tempore, without the benefit of written submissions, or (so it would seem) notice that the point was being taken, in circumstances where the Crown case was complete and the jury were waiting. There was understandable urgency. In contrast, this Court has had the benefit of written and oral submissions, and the opportunity to reserve on a point not free from difficulty.

87. Thereafter, the trial resumed. The appellant gave evidence in chief and was cross-examined. He confirmed that the handwriting in the diary was his own. He said that he had, at his friend’s request, applied to register the new company Esaan Enterprises and included an address and phone number linked to him. He confirmed that he had received the messages left at his serviced office from Henning Harders, advising that “Carlos” had rung on around the days they had been left (22 and 24 March and 6 April). He confirmed that he personally had accessed the [email protected] email address, from the serviced office, but only to create a Facebook account and a twitter account. He said that he became aware that there were emails from that account to and from Henning Harders, mentioning Esaan Enterprises, and said:

“It was alerted to me, yes, there’s someone using that account without my knowledge obviously.”

88. The appellant said that he was concerned about it, but did not mention it to Henning Harders. He denied knowledge of the drugs and the precursor the subject of the indictment.

89. The appellant gave evidence and was cross-examined over some five days. His mother-in-law also gave brief evidence, directed to explaining some files found when a search warrant was executed on her home. She said that she had taken some United Trade Card files home with her to keep them secure.

(b) The new definition of “import” and existing authority

90. The definition of “import” in s 300 of the Code was amended, with effect shortly before the conduct giving rise to the charges, following the decision of this Court in R v Campbell [2008] NSWCCA 214; 73 NSWLR 272. Under the previous regime, it was established that an importation was complete no later than when a consignment had been cleared through customs and delivered to the consignee’s warehouse. Spigelman CJ said at [126]-[128]:

“The new statutory context of a criminal code dealing with a wide range of drug offences suggests that a precise, rather than expansive, sense of the word ‘imports’ has been adopted.

Generally, that is how one would approach the interpretation of any criminal statute.

In my opinion, the purpose of the Act requires the border controlled drugs and precursors ‘to arrive in Australia from abroad’ and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers, would ‘result in the goods remaining in Australia’. That occurred when the goods were picked up by the appellant’s agent or, at the latest, when the container arrived at her premises and before it was unpacked.”

Weinberg AJA agreed and added at [144] as a further reason for rejecting the Crown’s broad construction of “imports”:

“In the context of this appeal, if the Crown’s contention that an importation continues until the goods reach their ‘final destination’ (an expression of some indeterminacy) were to be accepted, a person could be guilty of importing prohibited drugs by doing an act far removed from the actual landing of the drugs in this country. That act could take place weeks, months or even years after the drugs had been brought into Australia. Such a wide notion of the word would not accord with ordinary usage of language and would be foreign to most people’s understanding of that term. In addition, an interpretation of such breadth would not sit well with the approach normally taken to the construction of penal statutes:  Beckwith v The Queen (1976) 135 CLR 569 at 576.”

Simpson J agreed with both judgments.

91. By the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), a new definition of “import” was inserted in s 300.2:

“‘import’, in relation to a substance, means import the substance into Australia and includes:

(a) bring the substance into Australia; and

(b) deal with the substance in connection with its importation.”

92. The Crown relied, on first instance and on appeal, on paragraph (b):  “deal with the substance in connection with its importation”. Particular reliance was placed upon the Explanatory Memorandum, which said that the amendment would capture criminal activity “related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs”. It stated that the terms were “intended to be broad in their application” and that paragraph (b) would capture “unpacking the imported goods” (something expressly excluded by Spigelman CJ in Campbell) and “arranging for payment of those involved in the importation process”. However, the Explanatory Memorandum did not go so far as to embrace the “final destination” construction considered by Weinberg AJA in Campbell.

93. There is a deal of authority on the meaning of “import” as defined in the Customs Act 1901 (Cth) which, in large measure, may be passed over for present purposes. Those authorities do not speak with one voice, as is plain from a consideration of the divergent reasoning of this Court in R v Nolan [2012] NSWCCA 126; 83 NSWLR 534, dealing with inter alia the differences in the earlier decisions of Calderwood v The Queen [2007] NSWCCA 180; 172 A Crim R 208 and R v Campbell. Although Nolan was a case under the Customs Act, Rothman J (whose reasoning differed from that of the other members of the Court) mentioned the amended Code definition of “import” at [88], and said at [89]-[90]:

“As a consequence of the foregoing analysis, binding authority is to the effect that the term ‘imports’, where used in the Customs Act, includes conduct beyond the landing of the goods and, in the words of Wood CJ at CL in Sukkar, supra at [121], ‘includes recovery of the goods after landing and anything ... done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is suppliers, shippers, customs agents, freight forwarders, and so on’.

It would seem, following the amendment to definitions of ‘import’ in the Code, that an offence involving ‘importing’, even under the Code, would have the same degree of flexibility. It is unnecessary to decide that issue in these proceedings.”

94. So far as I can see, aside from those obiter statements (which reflected an approach different from that adopted by McClellan CJ at CL and Davies J), there is no authority in this Court on the new definition of “import” in the Code. Certainly, the Court was not taken to any.

95. Paragraph (b) of the new Code definition resembles what was considered by the Supreme Court of South Australia in R v Tranter [2013] SASCFC 61; 116 SASR 452. Kourakis CJ agreed with parts of the reasons of Peek J, including that a dealing after importation had been concluded could satisfy the new definition of “import” (at [126]). Mr Tranter had picked up a package which had arrived by sea from Thailand, taken it into his possession, and opened it at premises away from the freight forwarders. Peek J said at [102]-[103] (citations omitted):

“While the noun importation should be understood according to the Isaacs J approach, the verb ‘import’ is to be given a wider meaning than might be merely derived from, and confined to, the noun ‘importation’. This is because paragraph (b) provides that the meaning of import is wider than this. It is to include deal with the substance in connection with its importation.

The word ‘deal’ is not defined by the legislation but it is a word of relatively broad meaning.”

96. His Honour considered, but respectfully disagreed with, Rothman J’s approach in Nolan.

97. The third member of the Court, White J, considered the new definition, and observed that it was sufficient if any of the three alternative forms of conduct contemplated by the definition was established (at [14]). His Honour also noted that the definition of “import” incorporated the word “importation”, so that a person might “import” where there is conduct dealing with a substance in connection with its “importation”, indicating that the meaning of the two cognates of the one word was not coextensive (at [15]); this is to the same effect as what Peek J said at [102]; cf Nolan at [69]-[70].

98. White J also suggested, by reference to parliamentary intention, that “importation” bore the meaning it had been held to have under former s 233B of the Customs Act 1901 (Cth), of “a process, or a venture, not a physical act which occurs or ceases at the moment of import”. His Honour was also able to decide the appeal without expressing a concluded view on the issue, and without analysing the reach of the expression “deal with the substance in connection with its importation”: at [16]-[17].

(c) Construction of the new definition of “import”

99. For better or worse, the new definition of “import” in s 300.2 is open-textured, leaving it to the courts to fix its legal meaning. The appropriate approach is that which may be seen most clearly from Tranter, which is incremental and minimal whilst striving to achieve a consistent and coherent construction of the federal law.

100. As will be seen below, I respectfully agree with what was said in the passages mentioned above in Tranter. One aspect of their Honours’ reasoning – that “import” has a wider meaning than “importation” – is difficult to reconcile with parts of the reasoning of Rothman J in Nolan at [69]-[92]. However, even if I did not agree, I would apply the level of deference to the construction given to the federal law by another intermediate appellate court as stated in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492.

101. Even so, in order to explain why in my view the new definition has a narrower meaning than that applied by the primary judge, it is convenient to commence from first principles.

102. Prior to the 2010 amendment, “export” and “import” were defined simply. Section 300.2 provided (and still provides) that “export includes take from Australia”. Prior to 20 February 2010, “import” was defined similarly: “import includes bring into Australia”. Plainly enough, the changes effected by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) extend the legal meaning of “import”. The question is, by how much?

103. One change was to replace a definition which had only used the word “includes” by one which uses the words “means” and “includes”. Those words can themselves be problematic, as is apparent from YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 402. However, there is no such difficulty here. The chapeau of the new definition preserves the undefined meaning of the verb, whilst paragraph (a) replicates the earlier definition. The force of the amendment is to be seen in the new words in paragraph (b).

104. I turn to the words “import” and “importation”. As noted above, two members of the South Australian Full Court in Tranter considered that these words were not co-extensive. I agree. The “means and includes” definition deems the legal meaning of “import” to include “deal with the substance in connection with its importation”. This must mean more than merely bringing the substance into Australia; otherwise paragraph (b) would have no work to do. Paragraph (b) provides that if there is a “dealing” and it is “in connection with its importation”, then that is deemed to satisfy the definition of “import”. Paragraph (b) must be construed, if the language can sustain it, to mean something beyond bringing the substance into Australia. It is natural in those circumstances for “importation” to refer to the broad process, rather than the physical act which ceases when the substance arrives in Australia, as White J suggested in Tranter, consistently with what this Court held in Leff v R (1996) 86 A Crim R 212 at 214 (Gleeson CJ) and 222-223 (James J). However, even so, there must be a “dealing”, and the dealing must be “in connection with” that broad process of importation.

105. The legal meaning of paragraph (b) of the new definition does not turn on the meaning of the word “deal” considered in isolation. Still less does it turn upon two of the meanings contained in a dictionary, although the primary judge accepted the submissions by the Crown that it did. The primary judge considered that the definition was designed to cover “any dealing in a substance once it has reached this country, whether that involves re-exporting it or distributing the substance within Australia.” With that I cannot agree, for three reasons.

106. The first is that, taken on their face, the judge’s reasons would mean that the sale of a Finnish mobile phone, or a bar of Swiss chocolate, or a bag of Kenyan coffee beans by the importer to an Australian retailer, or (on one view) to the ultimate Australian consumer, was itself an “import” of the handset or chocolate bar or coffee, in the sense of being a dealing with the thing in connection with its importation. His Honour’s reasons, with respect, ignore the limiting words “in connection with its importation”. There is nothing in the text, or the legislative purpose, or the extrinsic materials to support the extended “final destination” legal meaning considered by Weinberg AJA in Campbell.

107. The second is that it is necessary to read the section (and the Code) as a whole, and in its context:  Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [23]-[24], [68] and [88]. Indeed, context can be determinative: see, for example, Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 at [69]. Part of the immediate context is the presence of separate offences of exporting a border controlled drug or precursor. It would be wrong to give a broad meaning to “import” which would swallow up the meaning of “export”, even though the former has been amended so as to expand it and the latter has not. Not lightly is there to be imputed an intention for the same conduct to be both an export and an import. Contrary to the primary judge’s reasons, I do not agree that “re-exporting” can fall within “import”. That is not to say that there is not a second offence if there is a re-export following the importation of a border controlled drug or precursor.

108. The third is that the meaning given to “deal” by the primary judge is too broad. I do not regard the dictionary meanings of “to occupy oneself with” or “to take action with respect to a thing or person” on which the primary judge relied to be of any material assistance in determining the legal meaning of the word in this context. The legal meaning is a consequence of the particular meaning the word bears in its particular context, not the breadth of its possible meanings which may be found in a dictionary. As I said in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409 at [82]:

“It is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence. Lord Hoffmann stated as much in R v Brown [1996] AC 543 at 561, a passage endorsed in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397, when observing that the fallacy of treating words as individual building blocks construed in isolation is common among lawyers.”

109. A “dealing” with tangible property may occur by a physical process (such as concealing it in another chattel so as to avoid detection, assembling it in a palette or container, physically conveying it from origin to destination, or physically delivering it to a purchaser). In the context of the Code, and the immediate textual context of “bring the substance into Australia”, the word should be regarded as including physical acts. For example, removing the substance from a bond warehouse would, in my view, be a dealing, and still remain sufficiently connected with the importation to satisfy the definition. It was said in Tranter that unpacking the package after it had been taken to premises outside the freight forwarder’s warehouse was still a dealing with sufficient connection with the importation to satisfy the definition. But there was no physical dealing with the container proven at the appellant’s trial.

110. It is also natural to describe a legal process (such as a sale or mortgage over the property) as a dealing. Indeed, to my mind, that is the most natural meaning the word bears in many legal contexts. I see no reason to confine the word “deal” in the definition to physical processes, as opposed to legal processes. For one thing, one of the examples given in the Explanatory Memorandum was arranging for payment. For another, very capricious results would follow if “dealing” were confined to physical dealings. On that approach, a sale by payment and physical delivery would amount to a dealing, but a sale by deed would not. Or take the facts of this case. The letter from the original consignor Kay-Tee Industries to the freight forwarder directing it to be held for Esaan Enterprises would, in my view, amount to a dealing, although involving no physical process. The direction to the freight forwarder caused there to be a change in the character of the actual possession, such that a different entity had the right to delivery of the goods. After all, a change in the character in which a person with actual possession of goods holds that possession caused by a defendant is sufficient interference with title to amount to conversion. In Van Oppen & Co v Tredegars Ltd (1921) 37 TLR 504, where goods were delivered by mistake, and a stranger purported to be their owner and sold them to the recipient, there was wrongful dealing sufficient to amount to conversion, even though there was no physical dealing with the goods. That was confirmed by Jordan CJ in Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 717.

111. However, relying on the broad dictionary definitions reproduced above, the trial judge appears to have considered that a price inquiry by itself could fulfil the definition of dealing. With that I must respectfully disagree.

112. A price inquiry is not a physical dealing with a thing. Nor does it readily fall within any accepted meaning of a legal dealing with the thing. Moreover, even after the 2010 amendment, the legal meaning of “import” is necessarily informed by other provisions in the Code: it is axiomatic that the Code must still be read as a whole:  see Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149 at [43]. Section 11.1 of the Code includes a separate offence of attempt, and s 11.1(2) provides that in order to be guilty of attempt:

“the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.”

113. If the extended definition of “import” applied when a person merely made an inquiry about what was required to release a package from a bond warehouse, then although the inquiry would be “in connection with its importation”, there would be little room for (a) the distinct offence of attempting to import a border controlled substance and (b) conduct which is “merely preparatory” which falls short of an attempt. The distinction between conduct which is merely preparatory and conduct which is sufficiently proximate to the intended commission of a crime such as to give rise to an attempt (see Onuorah v The Queen [2009] NSWCCA 238; (2009) 76 NSWLR 1 at [30]), ought not be swallowed up by an overly broad approach to “import”.

(d) The appellant’s concession

114. However, the communications from [email protected] were not merely requests for quotations. They were more than that, as senior counsel for the appellant acknowledged. They were assertions of ownership.

115. Senior counsel for the appellant said this in his oral submissions in chief when the appeal was heard:

“I wanted to point out a potential consideration of the admission to Mr Williamson that could potentially be argued was he asserting ownership of the goods throughout the course of the importation and if the Court was of that view then this ground would fail. And my submission in elucidating the argument in that regard is on a proper reading of the overall evidence, indeed as it was in essence left to the jury, was that he was making these inquiries on someone else’s behalf and he had lied to Mr Williamson. But I needed to make that point clear as I have further considered the matter so that if the Court was against me at that level, that ground would fail.”

116. That concession was properly made. Accepting as counsel did that it had been established beyond reasonable doubt that the emails from “Carlos” on 14 and 15 March 2011 were sent by the appellant, they were formal assertions of ownership of the contents of the container to the freight forwarder who enjoyed actual possession (and a lien) over those contents.

117. Was there room, as counsel submitted, for a reasonable doubt that the appellant was lying to the freight forwarder and was in fact making inquiries on behalf of someone else? I am doubtful that there was, but it is not necessary to reach a concluded view of the issue. Either the appellant as “Carlos” was asserting ownership of the contents of the container on his own behalf, or as agent for the true owner. In either case, there was a dealing with the goods.

118. In the particular circumstances of this appeal, it was sufficient that there was an assertion of ownership by “Carlos”. It would not matter if the ownership were of Carlos himself, or Carlos as agent for a principal, or indeed if Carlos had no right to the goods (in which case there would be conversion: see the authorities referred to above). It makes no difference for present purposes whether an assertion of ownership is made by the owner, or by a person with ostensible authority on behalf of the owner. The point may be tested by considering a circumstance analogous to Van Oppen & Co v Tredegars Ltd: suppose someone with actual knowledge of the heroin concealed in the container asserted to the freightforwarder that he or she was entitled to have it delivered to him or her, in the same terms as were employed by “Carlos”. Those assertions of ownership would amount to a dealing, and would do so even if (as here) it was not proven that the freightforwarder had acted upon them by physically moving the container.

119. Finally, plainly enough what occurred was “in connection with its importation”. The closeness of that connection may be seen not merely by reference to the communications between “Carlos” and the freight forwarder, but also from other contemporaneous communications made by Carlos. In particular, there was the undated letter from Kay-Tee Industries directing the freight forwarder to release the goods to a company undeniably connected with the appellant. And there was evidence from an employee of Microsoft that an email was sent from [email protected] to [email protected] stating:

“I just got the price for storage only the charges are $37000.00 and the shipment will cost $8000.00 to east africa there is a problem that we have to pay for the storage before we can move these stuff because it has been here for a while now plus the agent fees that has been working on it is $1200.00. I have asked them if you can pay from your side but the answer is no we have to pay for the storage from here or they have to have the fund in the account and you can pay the transport from there ... let me know what you would like me to do.”

120. Accordingly, I conclude that the primary judge was correct to dismiss the application for a directed verdict in respect of count 4, although for different reasons than were given by his Honour. In light of the concession, it is neither necessary nor desirable to say anything more of the operation of the new definition of “import”. Ground 3 should be dismissed.

(e) Ground 4

121. No separate written submission was made in relation to ground 4. Nor was ground 4 separately elaborated upon orally, although it was maintained that grounds 3 and 4 did not stand and fall together.

122. Although framed in terms of the jury’s verdict being “unsafe and unsatisfactory, and not supported by the evidence”, this ground is to be read as seeking leave to invoke this Court’s power under s 6(1) of the Criminal Appeal Act 1912. The question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt “which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J with whom Gleeson CJ and Heydon J agreed, emphasis in original, by reference to M v The Queen [1994] HCA 63; 181 CLR 487 at 493.)

123. If leave be granted in respect of this ground, it would be necessary for this Court to weigh the competing evidence and to make its own independent assessment as to the sufficiency and quality of that evidence: see SKA v The Queen [2011] HCA 13; 243 CLR 400 at [24], Gilham v R [2012] NSWCCA 131 at [465] and BCM v The Queen [2013] HCA 48; 88 ALJR 101 at [31]. That cannot be done, and in any event it should not be done.

124. It cannot be done because much of the documentary evidence was not reproduced in the appeal books. For example, 42 of the 100 Crown exhibits were not reproduced in full, and most of those were not reproduced at all.

125. It should not be done because so to do would be contrary to the way the appeal was prepared and argued. The parties chose not to make submissions based on a wholesale review of the evidence as a whole (which explains why the appeal books were, appropriately, selective in reproducing the evidence). In particular, the appellant chose to treat proposed ground 4 as supplementary upon ground 3, confined to the submissions on construction on the meaning of “import”. It would be unfair to both parties to grant leave in respect of ground 4 and conduct a wide-ranging review of the evidence as a whole, as to which neither had been heard.

126. In those circumstances, the appropriate course is to follow that adopted by this Court in Golossian v R [2013] NSWCCA 311 at [50]-[51]; see also Clark v R [2014] NSWCCA 236 at [65]. For the reasons already given, nothing in the course of the parties’ written and oral submissions has been advanced which gives rise to any concern that the jury must have entertained a doubt. By way of summary, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the “Carlos” who had spoken, repeatedly, to Henning Harders. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was aware of the letter from Kay-Tee Industries, had received the emails sent to [email protected], and had sent the email reproduced above to [email protected]. Those communications were legally sufficient to amount to a dealing. Although the subject matter of the latter two communications was a proposed shipping of the container to Africa, they included something directly connected with the importation of the container from Pakistan to Australia, namely, paying the fees (including to the freight forwarder) for storage of the container in Australia after it had been unloaded and while it remained in the possession of the freight forwarder, which is on any view sufficiently closely connected with the importation to fall within the expanded definition of “import”.

127. It follows that leave to appeal in respect of proposed ground 4 should be refused.

Orders

128. For those reasons, I propose that:

1. Leave be refused in respect of ground 4.

2. The appeal be dismissed.

129. McCALLUM J:  I agree with Leeming JA.

130. R A HULME J:  I agree with Leeming JA.

Amendments

17 June 2015 - In [13], "India" inserted after "Mumbai", and "requested" replaced by "requesting".

In [21], "Tanzania" inserted after "Dar es Salaam".

In [22], "on 12 March and 16 April 2011" placed after the word "accessed", and "by" inserted after "to".

In [26], "to" inserted after the word "subscribed".

In [27], "Es" replaced by "es".

In [29] and [74], "freight forwarders" replaced by "a freight forwarder".

In [57], "was" replaced by "were".

In [64], quotation mark deleted before words "a word" and inserted before "not only", and the words "it is a word" inserted after "ambiguity".

In [66], "Evidence" inserted before "Act".

In [68], "connection" replaced by "connexion", twice.

In [70], semicolon replaced by a comma between case names.

In [85], "it" replaced by "its" before "subsequent storage".

In [107] and [112], "Act" replaced by "Code" in three locations.

In [122], a repetition of the words "to be", deleted.

Decision last updated: 17 June 2015