El-Jalkh v R - [2009] NSWCCA 139

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: El-Jalkh, Antoine v R [2009] NSWCCA 139

HEARING DATE(S): 5 May 2009

JUDGMENT DATE:
25 June 2009

JUDGMENT OF: Spigelman CJ at 1; James J at 2; Simpson J at 158

DECISION: 1. Leave under r 4 of the Criminal Appeal Rules granted to argue grounds of appeal 2 and 3.
2. Ground 2 upheld.
3. The appeal against conviction allowed.
4. New trial ordered.

CATCHWORDS: CRIMINAL LAW — character of the accused — summing-up — putting the defence case — proviso to s 6(1) Criminal Appeal Act

LEGISLATION CITED: Crimes Act
Criminal Appeal Act
Criminal Code Act 1995 (Cth)
Criminal Procedure Act
Customs Act

CASES CITED: Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180
Cleland v The Queen (1982) 151 CLR 1
Melbourne v The Queen (1998-1999) 198 CLR 1
R v Coleman (1990) 19 NSWLR 467
R v Condon (1995) 83 A Crim R 335
R v Fuller (1994) 34 NSWLR 233
R v Gutierrez [2004] NSWCCA 22
R v Lawrence (1982) AC 510-519
R v Meher [2004] NSWCCA 355
R v Piazza (1997) 94 A Crim R 459
R v Tillott (1991) 53 A Crim R 46
R v Zorad (1990) 19 NSWLR 91
Robinson v The Queen (1991) 180 CLR 531
Simic v The Queen (1980) 144 CLR 319
Taleb v The Queen [2006] NSWCCA 119
Weiss v The Queen (2005) 224 CLR 300

PARTIES: EL-JALKH, Antoine
Regina

FILE NUMBER(S): CCA 2007/3230

COUNSEL: P D Lange (Appellant)
R F Sutherland SC (Respondent)

SOLICITORS: Nyman Gibson Stewart
Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0965

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 16 February 2006

2007/3230

SPIGELMAN CJ
JAMES J
SIMPSON J
THURSDAY 25 JUNE 2009

EL-JALKH, Antoine v R

Judgment

1 SPIGELMAN CJ: I agree with James J.

2 JAMES J: Antoine (Tony) El-Jalkh appealed against his conviction after a trial in the District Court before Judge Williams and a jury on a charge that between 1 August 2002 and 1 May 2003 he conspired with Paul Alexander Kellaway and others to import into Australia prohibited imports to which s 11.5(1) of the Criminal Code Act 1995 (Cth) and s 233B of the Customs Act (since repealed) applied, being not less than a commercial quantity of methylenedioxymethamphetamine (MDMA). The appellant was sentenced to a term of imprisonment for 12 years with a non-parole period of seven years six months commencing on 11 October 2005, the date on which the jury returned its verdict of guilty, the appellant having been at liberty on bail until the verdict of guilty was returned. In the event of his appeal against his conviction being dismissed, the appellant seeks leave to appeal against the sentence imposed on him.

The trial generally

3 The trial of the appellant commenced on 14 September 2005. The Crown case, which commenced on 14 September 2005, continued until the Crown case was closed on 29 September 2005. The evidence in the Crown case consisted of:-

1. Evidence by Michael Ralph Purchas, an Australian Federal Police officer on secondment to the Australian Crime Commission.

2. Evidence by Michael James Mullaly, who at the relevant times was an officer of the Australian Crime Commission.

3. Evidence by an alleged co-offender who had agreed to assist the Australian Crime Commission in the prosecution of the appellant. This witness was referred to in the trial by a pseudonym “Carlos”. He was the principal Crown witness.

4. Miscellaneous documentary exhibits.

5. Tape recordings of a large number of conversations to some of which the appellant had been a party, which had been recorded by means of authorised listening devices or authorised telephone intercepts (all of which I will refer to as “the recorded conversations”). Transcripts of the recorded conversations prepared by a police officer became exhibits M1 and M2 at the trial but the trial judge gave directions about the transcripts in accordance with Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180.

4 The defence case at the trial commenced on 29 September 2005 and continued to 6 October 2005. Apart from four documentary exhibits, the defence case consisted entirely of evidence given by the appellant.

5 There was only one principal issue at the trial. In both his opening address and his closing address counsel for the appellant at the trial told the jury that there was no dispute that there had been a conspiracy to which Kellaway and a man named Scott McGee had been parties, to import into Australia a commercial quantity of MDMA and that the only issue at the trial was whether the appellant had been a party to that conspiracy.

The Crown case at the trial

6 In his remarks on sentence Judge Williams said that he was satisfied that the jury had found the appellant guilty on the basis of “the following general facts”, which his Honour then set out. I am satisfied that this statement of general facts by his Honour in his remarks on sentence was in accordance with what had been the Crown case at the trial. The following summary by me of the Crown case at the trial is based on his Honour’s statement in his remarks on sentence and on parts of the evidence in chief of the principal Crown witness Carlos.

7 Carlos was born in Venezuela to Syrian parents and had been in Australia since 1981.

8 In 2002 Carlos was carrying on a business of importing in containers shoes and clothing, principally from Syria and Lebanon. He had a warehouse in a Sydney suburb.

9 Carlos first met the appellant in the year 2000 and from early 2002 both Carlos and the appellant, who was a hairdresser, carried on businesses in the same suburban shopping centre. They became friends.

10 Carlos was friendly with Paul Kellaway and Scott McGee.

11 At some time in 2002, which was not precisely fixed by the evidence, the appellant had a conversation with Carlos in which the appellant asked Carlos “how you getting all these stuff from overseas?” and Carlos replied “I get them by container”.

12 On a subsequent occasion the appellant told Carlos “look I can make you to make big money to bring, you know, if you help me to bring some stuff from overseas in Lebanon”. Carlos said to the appellant “what, what do you mean?” and the appellant said “I’m very well connected overseas and I’m very well connected here. I can put my hand, I can, if you know organise some drugs and cocaine and hash oil, oil-hash, in Lebanon. Can you put them in the container and you know we make big money and you not have to work hard and selling shoes and something like that”.

13 Carlos said that he would think about the appellant’s proposal. He contacted a New South Wales police officer for whom he had been an informant and told him about the proposal. The police officer encouraged Carlos to obtain further information.

14 The appellant told Carlos about a conversation the appellant had had with Paul Kellaway, in which he told Kellaway that he could get drugs from overseas but did not have any money and “Paul say ok, we can put in money in this”. Kellaway had said that he had a partner “Scott” (McGee).

15 The appellant told Carlos in a subsequent conversation that the appellant had told Kellaway that the appellant had a quantity of 10 kgs of cocaine in a drum in Lebanon.

16 In a later conversation between the appellant and Carlos, Carlos told the appellant that he did not currently have any container coming from overseas. The appellant said that that would not be a problem. “These people would pay the money to organise a container of shoes” and said that Carlos’ job would be to go to Syria, organise the container and the shoes or other stock which would be loaded into the container and bring the container to Lebanon, where it would be stored and the drugs would be placed in it. Carlos reported this conversation to the New South Wales police officer.

17 There was an attempt by the New South Wales police to have police officers observe Kellaway handing money to Carlos but, although $50,000 in cash was handed over by Kellaway to Carlos, police were unable to be present.

18 Carlos became dissatisfied with the New South Wales police officer and approached the National Crime Authority, as the Australian Crime Commission was then called. In early November 2002 he came under the supervision of Detective Purchas and he remained under Detective Purchas’ supervision. Purchas encouraged Carlos to involve himself in the proposed importation of drugs. Listening device and telephone intercept warrants were obtained by the Crime Authority.

19 A further amount of $200,000 was paid to Carlos for the purpose of the drug importation.

20 On 29 December 2002 Carlos left Australia and travelled to Lebanon and Syria.

21 On 3 February 2003 the appellant left Australia and travelled to Lebanon. On 15 February 2003 the appellant went to Syria, where he had a meeting with Carlos, and on the following day he returned to Lebanon.

22 It had been intended by the conspirators that the drug which would be imported would be cocaine. However, cocaine could not be obtained in Lebanon or Syria. There was a change of plan, so that the conspiracy became a conspiracy to import MDMA.

23 On 24 February 2003 the appellant flew to Holland and arrived in Amsterdam.

24 On the following day 25 February 2003 McGee left Australia and flew to England. McGee then flew to Holland. The appellant and McGee had a meeting in Holland at some time between 25 February and 28 February.

25 On 28 February 2003 the appellant left Amsterdam and he arrived in Australia on 5 March 2003.

26 McGee transported MDMA that had been obtained in Holland to Italy for the purpose of bringing it to Australia. McGee was arrested in Italy on 21 March 2003. The appellant and Kellaway did not become aware that McGee had been arrested until 7 April 2003, although, of course, they were aware that there had been no communication between them and McGee since 21 March.

27 On 25 March 2003 a conversation occurred between Kellaway and the appellant at Kellaway’s apartment, the recording of which was referred to at the trial as LD 123.

28 Kellaway was arrested in early May 2003. For reasons which will appear later in this judgment the appellant was not arrested until 25 July 2003.

The defence case at the trial

29 As I have already indicated, the defence case at the trial consisted almost entirely of the evidence of the appellant. The following is a brief summary of the appellant’s evidence in chief. The summary does not include the appellant’s evidence about the recorded conversations, which I will deal with later in this judgment.

30 The appellant was born in Lebanon and came to Australia in 1970, when he was 21 years old. He was a hairdresser by occupation and carried on a hairdressing business in a Sydney suburb.

31 He had met Carlos about eight years previously and after he and Carlos began carrying on businesses close to each other he saw Carlos very frequently. Another person he knew was a man named Vincent Lim.

32 In conversations between the appellant, Carlos and Vincent Lim “we talked about arms deal, we talked about money laundering”. Carlos offered to claim that a sum of $2m which police had seized from a friend of Vincent Lim was Carlos’ money.

33 The appellant gave further evidence:-

“We start talking about the arms deal somewhere in May/June roughly, roughly May/June 2002 when one morning Vincent talking about how he knew he had contacts in China and one of them is a general and can sell arms to any person any country in the world, so long as it’s not forbidden by United Nations.”

34 Carlos said with reference to the arms deal:-

“Look I have a cousin who is in the Syrian army and another friend in the Intelligence … and I’m really interested in this and I can get to contact and see we can get things moving.”

35 After Carlos had left the appellant and Vincent Lim, Vincent Lim said to the appellant that he did not want to deal directly with Carlos and would like the appellant to deal with Carlos. The appellant asserted in his evidence “I was the go in between”.

36 The appellant said in his evidence:-

“I did speak to a friend of mine, who was a lawyer, and I said to him there’s going to be an arms deal between China and Syria and had nothing to do with Australia whatsoever and it’s not forbidden by United Nations to sell arms from China to Syria so he said “if that’s the case, I don’t think its illegal”.”

37 The appellant’s evidence continued:-

“So I said to myself well, it’s worth a lot of money because Carlos told me the Syrian army are – they don’t have enough weapons; things are hotting up in the Middle East and … need things for the army, trucks and guns and rockets and aeroplanes and what have you and the deal could be about $1 billion minimum … and according to my friend Vincent and the Chinese people, I would be entitled to something like about a minimum of US$60m.”

38 Carlos said to the appellant that he could organise everything in Syria and that he had started discussions with persons in Syria, that Carlos would be going to Syria and that the appellant should come afterwards.

39 Vincent Lim told the appellant that he was talking to his contacts in China about the proposed arms deal.

40 The appellant denied that he had ever had any discussion with Carlos about drugs.

41 The appellant had first met Paul Kellaway and Scott McGee at a party. The appellant had been invited in his capacity as a hairdresser to dye the hair of some women at the party. The appellant had got to know Kellaway and McGee quite well.

42 McGee told the appellant that he had lots of money which he wanted to launder. The appellant asked Carlos whether Carlos would help McGee to launder the money.

43 In about August or September 2002 a first meeting took place between the appellant, Carlos, McGee and Kellaway. The appellant introduced Carlos to Kellaway and McGee. The appellant denied that at this or any subsequent meeting there was any discussion in the appellant’s presence about drugs. There was discussion about money laundering and importing shoes. The appellant was not sure what money laundering meant but he understood that Kellaway needed somehow to “make money clean”, because the money was from an escort agency conducted by Kellaway.

44 At one meeting Kellaway or McGee or both of them said “we give you money Carlos and you can buy shoes and the shoes will become legitimate and then we sell the shoes and we’ll make money and the money will become clean”. The appellant denied that he had any financial interest in the purchase of the shoes. To make Kellaway and McGee trust Carlos the appellant said, untruthfully, to Kellaway and McGee that he, the appellant, had put $50,000 into the venture.

45 Carlos spoke to the appellant about Carlos having had meetings with Kellaway and McGee, at which the appellant had not been present.

46 Carlos sometimes asked the appellant to telephone Kellaway and McGee on his behalf, because the appellant spoke better English than Carlos. The appellant described himself in his evidence as being “a messenger boy”.

47 The appellant made plans to go to Syria. He said:-

“The discussion was between me and Carlos, I wanted to meet the army, the officials of the Syrian government because I’ve been told by the Chinese officials or their representative in Sydney, I must have some kind of form from Syria or from the army to say that I represent them.”

48 As well as going to Syria, the appellant would take the opportunity to have a holiday in a number of countries, including Holland.

49 In his evidence in chief the appellant was then taken by his counsel through the transcripts of the taped conversations. The appellant offered explanations of what was said in the conversations which would be consistent with his innocence of the charge brought against him. I will refer to these explanations in a later part of this judgment.

50 As already stated in my summary of the Crown case at the trial, the appellant did travel to Syria, Lebanon and Holland in February 2003.

51 The appellant did in fact go to China on 31 May 2003. While in China “we had a meeting … in a boardroom with about 10 generals”. At the meeting the proposed arms deal was discussed “they all ready to go, just waiting for information, for me to confirm”.

52 The appellant returned to Australia on 5 June 2003 and reported to Carlos in a telephone conversation about the progress of the proposed arms deal. The proposed arms deal never eventuated.

The recorded conversations

53 As stated earlier in this judgment, there was evidence in the Crown case at the trial of a large number of recorded conversations, to some of which the appellant had been a party, which had been recorded by means of authorised listening devices or authorised telephone intercepts. The conversations were recorded as a result of intercepts placed on telephone services used by the appellant and by Kellaway and the installation of a listening device in the apartment occupied by Kellaway. On 27 December 2002 Carlos wore a listening device when he had a meeting with McGee.

54 The evidence of the recorded conversations at the trial consisted of tape recordings of the conversations, which were played to the jury.

55 As stated earlier in this judgment, transcripts of the conversations prepared by a police officer became exhibits M1 and M2 at the trial. In some parts of the conversations what was said could not be made out by the police officer who prepared the transcripts and in the transcripts these parts were left blank or indicated as “(words)”. There was little or no dispute at the trial about the accuracy (so far as the transcripts went) of the transcripts forming exhibits M1 and M2. The members of the jury were provided with copies of the transcripts of the recorded conversations and during their retirement could have access to equipment in the courtroom with which they could play the recordings of the conversations.

56 The recorded conversations commenced with a conversation on 30 November 2002 between the appellant and McGee and concluded with a conversation on 5 June 2003 between the appellant and Carlos. The total number of conversations was more than 150. The appellant was a party to a fairly large number, but by no means all or even most, of the conversations.

57 A feature of the trial was the amount of time devoted to the recorded conversations, in playing the tape recordings of the conversations, in reading aloud transcripts of the conversations and in the giving of evidence by Carlos or by the appellant about what each of them said was meant by parts of the conversations. The transcript of the evidence of Carlos or the appellant about the recorded conversations occupies a total of several hundred pages of the trial transcript.

58 It was a part of one way in which the Crown case was put at the trial that the evidence of the recorded conversations corroborated Carlos’ evidence that the appellant had been a party to the conspiracy to import MDMA. Alternatively, the Crown contended that the evidence of the recorded conversations was sufficient by itself to establish that the appellant had been a party to the conspiracy to import MDMA. The recorded conversation on which the Crown particularly relied was the conversation on 25 March 2003 between the appellant and Kellaway, which was recorded, both visually and aurally, by the device installed in Kellaway’s apartment and which was referred to at the trial as LD123.

59 It was part of the defence case at the trial that there were other, innocent, explanations of those passages in the recorded conversations which the Crown contended incriminated the appellant in the offence charged.

Summary of the recorded conversations

60 For the purposes of the appeal the Crown provided the court with a summary of a large number of the recorded conversations. Having compared the Crown summary with the transcripts of the conversations in exhibits M1 and M2, I am satisfied that the Crown’s summary is an accurate, although necessarily not complete, summary and the following summary is very largely derived from the Crown’s summary. In my summary I have not included all of the conversations in the Crown summary and I have sometimes expanded the Crown summary by including parts or further parts of the transcript of a conversation.

At 1.48 pm on 30 November 2002 McGee telephoned the appellant. The appellant said he had been talking to Kellaway, who had said “ he might have some work for us ”. McGee confirmed that that was correct and the two men arranged to meet after 5 o’clock.

At 5.06 pm on 22 December 2002 the appellant received a telephone call from a female. In the course of the conversation he said he was going overseas on 27 January. He said he was going to Beijing shopping and then going to Moscow and Holland with his partner Carlos.

At 12.15 pm on 24 December 2002 McGee telephoned the appellant. They agreed to meet at the Arthouse hotel in Pitt St after 8pm. The appellant said “He’s leaving on the twenty ninth”. (There was other evidence at the trial that Carlos left Australia on 29 December 2002). The appellant asked “ how’s Paulie (Kellaway) ?”

On 27 December 2002 a meeting took place between Carlos and Scott McGee at Scruffy Murphy’s Hotel in Goulburn Street Sydney. Carlos was wearing a listening device and the conversation was recorded. Carlos inquired what was happening with Holland and McGee responded “ I’m no in the financial position to (do that) at the moment .” “ We need to do I was waiting for that run ”. The two men discussed one hundred kilos of drugs and the cost and the possibility of organising handbags from Syria which would be shipped to Italy. McGee said “ The eleven um keys of the other stuff we all have coming…to come in I’ll move that and that'll give us the funds we need to do that ”. McGee indicated that his contact in Holland could not ship to Italy.

At 7.45 pm on 1 January 2003 the appellant spoke with members of his extended family. He indicated Carlos had gone to Syria and he said he himself was going to Lebanon on the 27th for two weeks.

At 10 pm on 9 January 2003 the appellant made an international phone call to Carlos who advised him “ I’m waiting for goods to be ready, I mean the shoes ”. The appellant asked Carlos: “ did you speak to the brothers yet ?”, Carlos advised “ of course but don’t say anything on the phone ”. The appellant advised he would be there on the 28th.

At 10.16 pm on 17 January 2003 the appellant again rang Carlos, who is overseas. He confirmed that he had made his booking and told Carlos “ it’s possible that I might be going to Italy to Europe I don’t know yet… tomorrow I’ll find out tomorrow night ”. The appellant told Carlos “ the storage room is ready…in Lebanon ”.

At 7.12 pm on 18 January 2003 McGee telephoned Kellaway. He advised that he had some good news “w e’re gunna get some much more ah suitable work ”. He told Kellaway “ we’re organising that and then we’ve got drinks with um our friend ”. Arrangements had already been made for the appellant to meet McGee at the Arthouse Hotel at night.

At 8.44 pm on 18 January 2003 Kellaway telephoned McGee and McGee asked Kellaway if he wanted to come to the Arthouse to meet the appellant.

Shortly after midnight that night (0:22am on 19 January 2003) Kellaway called McGee, who complained that he had “ just got rid of him ”. Kellaway complained that he had had 3 hours with the appellant. Kellaway told McGee “ he tried um you know again to see if I wanted to go or if we wanted to go more…At which I just said no Tony and I said he’s run it past me and I’ve said no and it’s gonna fuckin stay no…Until you get this first deal across the line ”.

At 9.40 am on 20 January 2003 a conversation was intercepted on the appellant’s phone. He advised a female that he had spoken to the travel agent and had moved his departure overseas to 3 February.

On the evening of 20 January 2003 there were telephone conversations between Kellaway, McGee and the appellant in which they arranged to meet at the Blue Oyster at Double Bay.

At 8.34 pm on 23 January 2003 the appellant telephoned Ahmad (Carlos). The appellant was asked how things are “ concerning Italy ” and he indicated that the other person (McGee) had gone “ to the other country ”. (McGee had not in fact yet left Australia). He confirmed that that was “ to Holland ”. The two men discussed coordinating dates and Carlos told the appellant “ you need to inform me, need to inform me about him so we can organise the the …ladies shoes ”. Carlos asked the appellant “ Give me an update on Italy issue so I can organise things here accordingly ”. They agreed to meet on the fourth of the next month.

At 11.08 am on 25 January 2003 Kellaway received an international telephone call from a man named Stefan Pool. Pool enquired as to whether or not McGee (“his Lordship”) had left for overseas yet. Kellaway told him that he was leaving on Monday and Stefan Pool indicates that “Danny” (Danny Histon) might pick McGee up at the airport in London.

On 3 February 2003 the appellant departed from Australia and on 4 February 2003 he arrived in Lebanon.

At 1.03 am on 17 February 2003 the appellant telephoned his son David to say that he had just crossed the border from Syria back into Lebanon.

On 17 and 18 February the appellant sent a number of text messages to McGee asking him to telephone the appellant urgently.

At 11.50 pm on 17 February 2003 the appellant sent a text message to McGee asking him to talk urgently from a (pubic) phone box.

At 12.41 am on 18 February 2003 the appellant sent another SMS message seeking to talk urgently with McGee.

At 7.24 pm on 18 February the appellant sent a further SMS message seeking to talk urgently with McGee from a phone box.

Between 7.03 and 7.08 pm on 18 February 2003 Kellaway and McGee discussed utilising an apartment, other than Kellaway’s apartment at Double Bay, so that they could not be observed by police.

Between 7.52 and 7.55 on 18 February Kellaway and McGee discussed the sale of ecstasy and increasing business, more securely, through private parties rather than through clubs. McGee spoke about turning “ 300 grand into 600 maybe 900 in that period of time ”. They discussed the appellant and how if “ he is not talking about one deal he is talking about another deal ”. McGee thought that the appellant was talking about the arms deal and Kellaway expressed the view that “ there should be a reduction from our side for numbers ”. McGee expressed the view that “everything he (the appellant) ever says is what you want to hear, you know what I mean, and the fact he keeps hassling me to put more money in and we haven’t seen anything, just pisses me off”.

At 9.39 pm (Sydney time – 10.39 am in Lebanon) on 18 February 2003 the appellant telephoned Kellaway who passed the phone to McGee. The appellant asked McGee if he had received the three messages which the appellant had sent to him. The appellant told McGee that it was important that he call him on a particular number from a phone box.

At 10.37 pm on 18 February the listening device in Kellaway’s apartment recorded further conversation between Kellaway and McGee. McGee had been observed by the device to leave the apartment and use a telephone box nearby. He then advised Kellaway back in the apartment that: “ Tony (the appellant) has not seen Carlos or heard from Carlos since we saw him… he wants to, he wanted to um, he wanted me to keep… he wants me to do something in Amsterdam. What I am thinking I will go over, I will fly over… so it doesn’t look like he’s been ripped because why would he be, why would he be ringing me…at all ”. McGee discussed with Kellaway going to Amsterdam to “ set up the deal ” and Kellaway described how to tell Tony that they are taking their money back: “ Tony is not anyone, fucking grab him by the scruff of the neck and march him down the lane ”.

At 5.16 pm on 20 February 2003 the appellant sent another SMS to McGee advising that he had spoken to “our friend” (Carlos) and asking McGee to confirm when he was leaving and when he would arrive.

At 5.18 pm on 20 February 2003 the appellant sent an identical SMS to Kellaway requesting that he tell McGee to reply to the message.

At 6.43 pm on 20 February the appellant telephoned Kellaway from Lebanon. He asked about the two messages he had sent and said he wanted McGee to confirm when he was arriving “ because I’m booking today ”. Kellaway confirmed that he would definitely be seeing McGee that night and the applicant said “ ok please tell him, send me a message ”.

At 7.00 pm on 20 February McGee telephoned Kellaway. Kellaway asked him “ did you get a message from Tony yet ?”. McGee replied “ Yes ”. Kellaway told him “ okay he needs you to contact him back ”. McGee explained that Tony has “ located our missing person…they want me to meet him over there ”.

At 7.15 pm on 22 February Kellaway telephoned McGee and asked him what time he was flying out the next day. McGee replied “ Man you wouldn’t believe it, a travel agent isn’t open today, so I couldn’t get my ticket reprinted…Tony’s gonna be pissed but that’s all right. We’ve waited five months, he can wait a day ”.

At 7.14 pm on 24 February Stefan Pool telephoned Kellaway. Kellaway indicated McGee was with him and he put McGee on the phone to speak with Pool. McGee agreed to get something to Pool before he left and said he was happy to be collected when he arrived at Heathrow.

At 12.16 am on 25 February 2003 the appellant phoned from overseas to speak with Kellaway. Kellaway advised him that McGee was leaving “ tomorrow ”. The appellant expresses surprise and complained “ I sent him so many messages, why didn’t he reply ?”. The appellant asked Kellaway to get McGee to phone him and says “ Please. I’m already, I’m already in Amsterdam ”.

At 7.52 pm (Sydney time – 9.52 am in Europe) on 27 February 2003 McGee telephoned the appellant, who was in Amsterdam. McGee advised that he had arrived in London and that he would be flying out at 1.30. The appellant told him to come and see him at the Novotel at about three o’clock.

At 12.08 am on 28 February 2003 (Sydney time), 2.08 pm on 27 February (London time) McGee telephoned the appellant and advised him of the details of the flight that he was about to leave London on, for Amsterdam. The appellant repeated the flight details and asked “ do you want me to pick you up from the airport ?”.

At 8.24 pm on 3 March Kellaway received a call from the appellant in Lebanon. The appellant asked Kellaway “ listen, is there a way you can get in touch with Scott…his phone is off ”. The appellant explained “… because I want him to speak to Carlos today ”. The appellant gave Kellaway a different phone number and said “ we need him to get in touch with him today please ”.

On 5 March 2003 the appellant flew back to Sydney from Lebanon.

At 10.01 am (Sydney time) on 7 March (12.01 am in Europe) McGee sent an SMS to the appellant regarding meeting Carlos “ tell our friend I am at hotel and awaiting his arrival ”.

At 10.25 pm (Sydney time) on 7 March 2003 the appellant, who was in Sydney, telephoned Carlos and asked him where he was. Carlos told the appellant “ I’m in Venice ”. The appellant asked whether he had seen McGee. Carlos told him not to worry “ everything is okay Tony ”. Carlos also told him “don ’t ring me on this phone at all, at all. Do you understand ?”. The appellant enquired “ okay, you’ve arrived, is everything right ?” and Carlos replies “ for you, for your own thing all right ”. The two men then went on to discuss a prospective trip to China.

At 11.28 pm (Sydney time) on 8 March 2003 Kellaway telephoned McGee in Italy. McGee told him that he was now in Rome and that Carlos had “ decided to take two days off in Venice ”. As a result things will be delayed “it’s just that Carlos the jackal has been very slow”.

At 11.07 pm (Sydney time; 1.07 pm in Europe) on 9 March 2003 McGee telephoned the appellant. The appellant said “… I just sent you a message. What’s going on ?”. McGee told him that “ he (Carlos) won’t be here until Tuesday now ”. They discussed the delay in Carlos arriving and the appellant said “ Shit mate he he’s stuffing you up, I can’t believe it. I can’t ”. McGee explained the ramifications “ yeah you see like, you know, if I fuck these people around, then that door shuts for us ”. The appellant responded “ that’s absolutely right ”. The appellant complained that he had not been able to get in touch with Carlos. They discussed the reason for the delay and whether he had got “ it ”. McGee asked whether he had got it “ in paper or has he got it in ?” and the appellant replied that he has got it “ in cash mate, I’m gonna fucking kill him ”. The appellant complaind about how much money he had put in, “ I’ve got 200 laying down for nothing …”

On 10 March and 11 March 2003 there were numerous communications between Kellaway, McGee, Stefan Pool and Danny Histon about sending money to McGee.

At 1.47 am (Sydney time) on 12 March 2003 the appellant received a call from McGee. McGee complained that he is still waiting (for Carlos). The appellant said “ you’re kidding me ”. The appellant asked McGee “ mate, keep trying, keep trying, my life in your hands…I know your situation too mate, just keep trying please as I said my you know it’s my mine and yours together now ”.

At 9.51 am on 12 March McGee telephoned Kellaway. He said that he had been contacted, not by “ the man ” but by “ his colleague ”. They discussed chasing up people for money in Sydney.

On 12 March and 15 March there were a number of communications between Kellaway and other persons, not including the appellant, about sending money to McGee.

At 4.54 am on 19 March 2003 (Sydney time; 6.54 pm 18 March in Europe) the appellant telephoned McGee in Italy. McGee indicated he was still waiting “ for our friend ”.

At 12.56 pm on 19 March 2003 Kellaway telephoned McGee. McGee advised that he was now in Genoa. He said he was coming back as soon as he could get a ticket. He was still waiting for “ our friend ”.

At 8.07 pm on 19 March McGee received a phone call from Carlos. Carlos claimed to have had problems in Italy with customs and that he had had to go to Syria and was “ just a couple of days late ”. Carlos told McGee that he would be contacted by somebody called “ Alfonso ” and that McGee should “ trust him like me that’s okay ”. Carlos asked for details of the hotel McGee was staying at.

At 8.15 pm on 19 March Carlos called McGee again and clarified the room number and the hotel in Genoa where McGee was staying.

At 8.22 pm on 20 March (Sydney time; 10.22 on 19 March in Europe) McGee telephoned the appellant in Sydney. He told the appellant that he had heard from Carlos, who was in Syria. McGee and the appellant expressed their concerns and the appellant asked McGee “ just let me know man the moment you hear anything, please ”.

At 11.20 pm on 20 March McGee telephoned Kellaway in Sydney. He enquired about a court case that day. They again discussed money.

At 9.22 am on 21 March 2003 (11.22 pm on 20 March in Europe) McGee received a call from Carlos, who claimed to be waiting at an airport to leave. He told McGee not to leave the hotel. Carlos claimed to have had to go to Syria “ for the paperwork for the bloody container ”.

At 10.40 am on 21 March McGee telephoned Kellaway and advised him that he would be back on the 24th and that “ dickhead will be here tomorrow ”.

At 12.49 pm on 21 March the appellant telephoned Kellaway. He said “ mate, I know you heard from Scotty ”. He told Kellaway that he had received a message from McGee that morning and they confirm McGee will be back on the 24th.

On 21 March 2003 McGee was arrested by Italian police in Genoa, in possession of the MDMA.

At 5.31 pm on 24 March 2003 the appellant telephoned Kellaway to enquire whether Kellaway has heard from McGee. The appellant says “ message me if you hear anything ‘cause I sent about five messages ”.

At 5.04 pm on 25 March 2003 Kellaway telephoned the appellant. Both men were anxious, having heard nothing from McGee. The appellant said “ mate, it is just giving me a nervous breakdown …”. Kellaway told the appellant to come over to Kellaway’s place.

LD123

At 8.41 pm on 25 March the appellant entered Kellaway’s apart at Double Bay. The conversation between Kellaway and the appellant was recorded on the listening device secreted in the premises. The surveillance included sound recording and video images. The meeting between Kellaway and the appellant lasted more than two hours.

Kellaway gave two mobile phones to the appellant and told him to set them up, so that they could be utilised for safe communications. He explained that McGee had broken “ radio silence ” and had mentioned names in telephone conversations and hence Kellaway was being “ overly cautious ”.

The appellant complained that, despite having sent text messages to McGee on Friday, Saturday (4 messages), Sunday (3 messages) and Monday (3 messages) “ how hard is it to ring me, one of us, and tell you what the fuck is going on ”. The appellant showed Kellaway the messages on his mobile phone and told Kellaway, “ just heard it from him but he will be here tomorrow, right, he’s at the airport, waiting for a flight ”. Kellaway told the appellant that these were the sorts of messages which “ shouldn’t be happening, full stop ”.

The appellant went on to describe what he claimed occurred with Carlos in Syria, including Carlos discussing and showing him “ 40 kilos of heroin ”. Carlos had said to the appellant, “ the white stuff cannot be taken out from here ”.

The appellant then discussed why he had had to travel to Amsterdam to see McGee. The appellant gave a narrative explanation to Kellaway regarding his arrival in Amsterdam, contacting McGee, waiting for McGee to arrive and then being present when Carlos arrived and “ collected the stuff ”.

The appellant said “ then finally Carlos arrive he said everything is cool now I go to do my job as I said what, what what fuckin job is that? What happened, he took the money went back to fucking Amsterdam collect the stuff with the money, oh shit, you told me the fucking stuff has already left, I don’t even know what the fuck is going on, so do you know all these stories ?”

The two men then discussed whether the appellant’s unit might have been “ bugged ”. The appellant commented “ so I can’t talk in my house ” and Kellaway gave him some advice about people he could get who could sweep the appellant’s house for bugs.

The appellant said that he had applied for a gun licence and then discussed a police “bust” regarding 60 million dollars of ecstasy. The appellant said “ you know that sixty million bust of ecstasy they got in New Year’s Eve…he’s a client of mine ”. The conversation with Kellaway returned to what McGee had been doing and the appellant told Kellaway that it had cost him “ so far ” $210,000. The appellant claimed that he would kill Carlos himself, “ if he fucks up ”.

A little while later in the conversation the appellant expressed concern, if Carlos had been caught, and Kellaway expressed concern whether Carlos’ telephone would have been taken.

The appellant said that the last time he had received a call “ he (Carlos) was in Amsterdam ”.

A short while later Kellaway said “ okay, worst case scenario, either they have been busted over there doing something at which there is nothing we can do about it ”, to which the appellant replied “ so why don’t they bust me ?”.

The appellant and Kellaway discussed whether Carlos might rip off McGee and “ bump him off ” and they discussed how much money was involved for McGee. Kellaway said “ it’s Scotty’s cash ”, to which the appellant responded “ and mine ”.

The appellant and Kellaway discussed the possibility that McGee was dead and expressed concern that the police might eventually obtain “ whatever phone numbers they can find ” to which the appellant responded, “ which is mine and yours ”.

Kellaway said that, if the police conducted an investigation, he would explain “ Scotty’s my new business partner. I supplied him with girls ”. The appellant queried, “ then how would I know him ”. The appellant reiterated “ I trusted him with my money ”.

After discussing how much money McGee was spending on living expenses whilst he was in Europe, the conversation returned to the topic of the two new “ clean mobile phones ”, one of which was for Carlos.

The appellant asked Kellaway who he knew was a local drug distributor. The appellant asked “ how much for would it be for…in your opinion…um say a thousand tablets ?”. Kellaway indicated the price varied, depending on how the tables were sold.

With respect to the two new phones and two new SIM cards supplied by Kellaway, the appellant inquired which one he should keep and which one should be given to Carlos. The appellant wrote down on a piece of paper the phone numbers for each of the two new phones and handed the paper to Kellaway.

The appellant then undertook some calculations at a price of $16 per tablet. He was observed on the video apparently using the keyboard on a mobile phone as a calculator. He articulated a calculation for 30,000 tablets, yielding $480,000. The appellant said “ he will get nothing. He will get the next shipment…is that agreed ?” The appellant added “just m ake sure you don’t give him one fucking cent out of this money ”.

The conversation returned to the subject of the new mobile phones and how to register the SIM card for use with Vodafone, with a false name and false personal particulars. Kellaway advised the appellant that, to be 100% safe, both the telephone and SIM card should be “ditched” every four weeks.

After discussing the mobile phones, the appellant then asked Kellaway “ okay now…everything alright, how do you check the container ? Kellaway explained his understanding of what would occur, if the drugs were detected “ they will try and do what they call a controlled delivery…they take the gear out and they’ll put replacement gear in there like flour or sugar whatever…then they let the container be delivered .”

Kellaway had in fact previously been employed as a customs officer and he gave the appellant some details of the methodology involved in a controlled delivery and surveillance by the authorities in a controlled delivery. He discussed the use of invisible paint which could be observed at night and the possibility of the use of listening devices. After Kellaway had outlined the types of steps that it could be anticipated that the authorities would take, the appellant asked “ so what are we going to do ”.

In cross-examination at the trial the appellant said that the reason for his participation in this part of the conversation was “ I was inquisitive, they are still my friends and I was asking how they do things, inquisitive ”.

Kellaway explained a method of avoiding detection involving transporting of boxes from a warehouse down to a wharf and onto a boat, which would then travel across the Harbour. He explained to the appellant that it was unlikely that they would be followed in a boat and they would go probably to the north shore and “ wait for the calm ”, before taking it to a “ safe house ”. He outlined an alternative plan, in the event of their being followed, involving taking the boat from Rushcutters Bay over to Manly “ you can't get a fuckin car in Rushcutters Bay and beat them over to Manly ”. He explained that in the worst case scenario, if they were followed by the water police, then “ it goes in the drink…then go ring a solicitor…at the end, how they going to catch up fucken its…simple ”.

Some the of conversation between the appellant and Kellaway was only partially transcribed, apparently due to words used not being able to be made out by the transcriber. Some snippets which were transcribed included the appellant saying “f ucking container… Amsterdam ” and “ Scott…anything…in Amsterdam ”. The appellant said “ I mean when it gets here, when it gets here we have it the container…ship it ship it ”. Kellaway responded “ it’s got out, go out from customs…and unload it at which, and Carlos…and ready for it and… basically once it’s ready to go off from that warehouse, that’s when I’ll come and…you know I won’t take delivery of i t.” Shortly after, the appellant asked “ what do we do from there…his warehouse .”

Kellaway gave a detailed explanation of the use of cars and the use of walkie talkies by drug importers and a method of counter surveillance, involving going to a headland with only one road in to it and having observers in contact by walkie-talkie, “ so as soon as a cop came past…they would get on the walkie talkie …”

Kellaway then described a method of physically exchanging two similar bags. “ You know two similar bags blah blah blah blah you know I’ll meet you in the city…the Queen Victoria Building, ring and see each other, we walk off in the same direction going down a stairwell which is usually the best spot, swap cases in the stairwell …”

The appellant then talked about using a false name and false personal particulars to activate the SIM card with Vodafone. The appellant then actually spoke to Vodafone on the telephone and activated the mobile service, with a false name at a fictitious address and a false date of birth.

After further discussion about Vodafone, Kellaway said, in relation to the absence of news about McGee “ no news is good news, just in these situations just sit, sweat it out, don’t panic you know you got nothing at your house, then really they got nothing on you .” The appellant responded “ you reckon. I think we wait the latest, we wait till Monday .”

The following day (9.03 am 26 March 2003) Kellaway received a telephone call from Stefan Pool. They discussed the fact that McGee had not returned. Kellaway said “ not that he is in trouble…not in trouble with the authorities but I think I don’t trust these guys that he was doing business with .”

At 9.41 am on 26 March 2003 the appellant called on his mobile telephone to his hair salon at Hurstville. The female who answered the call told him that Carlos had telephoned at about 8.55 that morning “ he told me to tell you that he cannot get in contact with his friend and he cannot wait any more. He wants to come, he’s coming home .” She explained that Carlos had said that he had been trying to ring the appellant on his mobile but could not get through and so he had rung the salon.

At 9.48 am the appellant telephoned Kellaway and told him about the message from Carlos. The appellant told Kellaway “…Carlos just rang and he said he can’t wait for him any longer, he has to come home… (pause)…do we know anyone in Holland?”. The appellant told Kellaway “ I didn’t even talk to him, he rang the salon. That’s the fist time he’s rung .” The appellant then told Kellaway “ Listen, activate the other phone will you .” Kellaway replied “ I will today .”

At 10.28 am on 26 March 2003 the appellant received a telephone call on his mobile from David El-Jalkh. The appellant questioned whether it had been Carlos had been trying to contact him all morning. He told David El-Jalkh “ he can't find Scott…I tell you there is something bloody wrong, never mind .”

At 5.05 pm on 26 March the appellant telephoned Kellaway. The appellant asked Kellaway if he had received a text message. The two men discussed the fact that neither McGee nor Carlos had yet returned to Australia. The appellant, when told there was still no news from McGee, said “oh God – sigh – we’ll have to do something.”

At 5.09 pm on 26 March police intercepted a text message which the appellant had sent to Kellaway, enquiring whether Kellaway had heard anything from McGee “ HAVE U HEARD FROM HIM DID U FIND OUT ANYTHING? LET ME KNOW .”

At 4.20 am the following morning 27 March 2003 the appellant received an incoming call from a male person, who was in Amsterdam. The appellant complained that it was 4.30 in the morning. They discussed whether the caller had met with the appellant’s “friend” (McGee). The caller was under the impression that McGee was still in Amsterdam and the appellant told the caller “ no, he is in Rome ”.

At 4.54 pm on 27 March 2003 the appellant sent another SMS to Kellaway, asking if he had any news.

At12.56 pm on 28 March 2003 the appellant called Kellaway on his mobile. He advised Kellaway that somebody who he had only had a chance to chat with for five or 10 minutes had a story “ but his story doesn’t match with Scott’s story…so we have to, we have to get somehow together. We have to get them together, face-to-face…I mean, I’m the one being fucked in the whole thing. I lost a, lost a lot of fuck’n money and so has you guys so I just, I’m not happy with either stories .” The appellant said to Kellaway “ please I need I mean I been absolutely fucked to the bloody ground and so’s Scott if, if he didn’t take the money, so I don’t know what's goin’ on ”.

At 7.55 pm on 29 March police intercepted a further SMS from the appellant to Kellaway, enquiring whether Kellaway had heard any news.

At 7.57 pm on 29 March the appellant telephoned Kellaway and pursued the same enquiry. The appellant said that he wanted “ to know the truth now” and that “the 90, the hundred is gone I want to know what is going on ”.

At 1.18 pm on 31 March the appellant sent an SMS to Kellaway, asking if there was any news.

At 3.45 pm on 31 March Kellaway responded to the appellant by SMS. He said “ No. Looking hard for him .”

At 4.17 pm on 31 March 2003 the appellant telephoned Kellaway. They laughed over their SMS messages to each other and the appellant recounted having had a big argument with “our friend” yesterday. He had had a conversation with Carlos “ he said the shipment is still there, you know the shoes and all…and he needs Scott to come with him there now .”

At 1.21 pm on 2 April the appellant telephoned Kellaway. He said that he had called earlier but could not get in touch with Kellaway. Kellaway said that he did not want to carry around nine phones. The two men again talked about McGee having disappeared. The appellant told Kellaway “ as I said, look the container’s still sitting in Genoa, so I don’t know what to fuckin do any more you know .” Kellaway told the appellant “ look if worse case comes to worse and he’s basically dead and buried…I’ll come and see you and we’ll iron things out and just continue… ” The appellant said “ okay, I mean this stuff in Holland I want to know what happened to it, where is it … he said he picked up. Where did he put it? Did he take it back to Holland? Did he take, what did he do, I just want to know …”

At 11.53 am on 4 April 2003 the appellant called Kellaway. Again they talked about there having been no word from McGee. The appellant confirmed that he had met with Carlos and given him the phone which Kellaway had previously provided.

At 4.31 pm on 6 April 2003 the appellant called Kellaway. Kellaway raised the possibility that McGee had returned to Sydney and that he had been kidnapped. The appellant said “ we can't do anything else can we I mean if the stuff is .”

At 4.35 pm on 6 April Kellaway called the appellant. He said that he had forgotten to tell the appellant to “ tell your friend to proceed as normal…whatever happens…I am still going to be around and I am still going to be going ahead with things .” The appellant said “ he’s (Carlos) frustrated the shipment is already sitting in fucken Genoa the container and he is not gonna go near the fuckin …”

At 4.18 pm 7 April 2003 Kellaway received a telephone call from a lawyer in Italy, advising him that she was the defence lawyer for McGee and that McGee had got into trouble with the authorities on 21 March. (This was the first information Kellaway or the appellant had received from or about McGee since 21 March). Kellaway said that he would try and help McGee.

At 5.35 pm on 7 April Kellaway telephoned the appellant. He informed him McGee had been arrested in Italy. The appellant arranged to come around to see Kellaway.

At 1.01 pm on 8 April 2003 Kellaway telephoned the appellant and told him that he would call him back.

On 8 April the appellant sent two SMS messages to Kellaway saying he was waiting to hear from Kellaway.

At 7.20 pm on 9 April the appellant received a call from Kellaway. The appellant said “ I’m just wondering about that phone call you got yourself from ah from the lawyer I mean ah, was it the lawyer, you know ”.

At 12.21 pm on 11 April the appellant and Kellaway spoke on the telephone. Kellaway told the appellant that McGee had written a letter to his grandmother, confirming that he has been arrested in Italy and was now in Milan. The appellant told Kellaway that he “ saw our friend last night ”. The appellant said that he was freaked out by the stories. Kellaway said that he had to raise $20,000 for McGee’s lawyer in Italy and asked if the appellant could contribute. The appellant indicates “ I would love to, have not yet… as I said I had plans last night with Jimmy is when the shipment comes here the shoes okay…we gonna confiscate it and we’re gonna put it as a fund ”.

At 5.56 pm on 15 April 2003 the appellant telephoned Carlos. They spoke about whether the appellant was going to go to China and then discussed the container of shoes from Syria which was apparently then in storage in Italy. They agreed that they would not be going to Italy, because they were uncertain as to the circumstances of McGee’s arrest.

At 6.24 pm on 15 April the appellant called a man named Jimmy Tsoumbanellis. He told him that he had just spoken with Carlos. The appellant explained that he had asked Carlos “ what happened to Scott ?” He told Tsoumbanellis that McGee was “ supposed to go and take the stuff to the container ”. The two men agreed to meet the next day.

At 4.53 pm on 17 April 2003 the appellant receives a call on his mobile from Vincent Lim. They discussed CIA, intelligence and undercover work and seemed to be discussing the proposed arms deal.

At 10.20 am on 23 April 2003 Kellaway telephoned the appellant. The appellant complained that he had been sending messages to Kellaway on his other number. Kellaway told the appellant that he had had a letter from McGee and that he had been able to raise half the money needed for his defence. The two men discussed a claim by Carlos that McGee had done the wrong thing by Carlos on the question of where the container was located. The appellant said that Carlos had said “ I want my money ”. The appellant tells Kellaway that he advised Tsoumbanellis “… we can't even get the fucking shoes in here ”.

At 1.56 pm on 23 April Kellaway spoke on the telephone with Helen French who was McGee’s grandmother. Mrs French advised Kellaway “ Scott told me to warn you that Carlos was the one that dobbed him in .”

At 4.18 pm on 23 April Kellaway telephoned the appellant to advise him of the warning about Carlos that he had received from McGee’s grandmother. He also told the appellant that he understands that Jimmy is taking over everything.

On 2 May 2003 Kellaway was arrested.

At 3.50 pm on 5 June 2003 Carlos telephoned the appellant and they discussed the division of the supposed $60 million profit from the Chinese arms deal.

The Crown case at the trial about the recorded conversations

61 The Crown submitted that the recorded conversations showed inter alia a close association during the relevant period between the appellant and Kellaway and McGee, who were clearly parties to a drug conspiracy; that the appellant had gone to Europe and then to Amsterdam for the purpose of meeting with McGee; and that the appellant had evinced deep concern in late March and early April 2003 about there being no news from McGee, which could only be explicable on the basis that the appellant was a party to the conspiracy to import the drugs obtained by McGee.

62 The Crown relied particularly on LD123. It was submitted that in this conversation:-

The appellant told Kellaway that in Syria Carlos had shown him 40 kgs of heroin but Carlos had said that the heroin could not be taken out of Syria.

The appellant told Kellaway that he had travelled to Amsterdam to meet McGee and that he had been there when Carlos arrived and collected the “stuff”.

The appellant referred to a police “bust” regarding $60m worth of ecstasy.

The appellant lamented the large amounts of money which he said he had expended on the venture.

Kellaway observed to the appellant that the worst case scenario would be that McGee and Carlos had been “busted”.

The appellant asked Kellaway about the prices of drugs and made calculations of the value of a large number of ecstasy tablets.

The appellant asked Kellaway how the container would be shipped and the appellant listened with obvious interest to Kellaway’s discussion of how controlled deliveries are made by the authorities, taking out “the gear” and substituting flour or sugar, and Kellaway’s discussion of methods used by drug importers of avoiding arrest and methods of counter-surveillance to be used against the authorities.

The defence case at the trial about the recorded conversations

63 In a part of his closing address which occupied about 30 pages of the trial transcript counsel for the appellant at the trial took the jury through a number of the recorded conversations, setting out the explanations the appellant had given in his evidence of apparently incriminating passages. Explanations of individual conversations included the following:-

64 Conversation on 30 November 2002

65 Conversation on 22 December 2002

66 Conversation on 24 December 2002

67 Conversation on 27 December 2002

68 Conversation on 1 January 2003

69 Conversation on 18 January 2003 at 7:12 pm

70 Conversation on 18 January 2003 at 12:22 am

71 Conversation on 20 January 2003

72 Conversation on 25 January 2003

It was apparent that Kellaway, McGee, Stefan Pool and Danny Histon were old mates, who had done drug deals before. The appellant had had nothing to do with any previous drug deals between the others.

On 15 February 2003 the appellant travelled from Lebanon to Syria. That trip could only have been for the purposes of the arms deal. The appellant was surprised, when Carlos showed him drugs while he was in Syria.

73 Conversation on 18 February 2003

In a part of this conversation McGee said “and Tony – I can’t tell Tony what we’re going to do”, indicating an intention to conceal from the appellant what Kellaway and McGee were hoping to do. It was submitted that “a drug deal was occurring that the appellant did not know about, that had been set up outside him and that he was just finding out (about)”.

The delay in McGee proceeding to Amsterdam, where the appellant already was, was because McGee was in no hurry to see the appellant; he had other more important business to attend to.

74 The appellant conceded in his evidence that, while he was in Amsterdam, he had gained knowledge that McGee was intending to do a drug deal. It was submitted that, although he (the appellant) knew about it (the drug deal), it “doesn’t mean because you know about it that you have something to do with that transaction”.

75 Conversation on 7 March 2003

In this conversation Carlos and the appellant discussed the trip to China, which could only be in connection with the proposed arms deal. Any concern of the appellant’s about what was happening in connection with the drugs deal was because he did not want Carlos, the person who he had recommended to Kellaway and McGee, to misappropriate money Kellaway and McGee had provided to Carlos.

76 Conversation on 9 March 2003

McGee finally called the appellant, because it was the appellant who had recommended Carlos and Carlos was “stuffing up” McGee. Things said by the appellant in the conversation revealed the appellant’s lack of understanding of what McGee was doing.

It was submitted that it was significant that there was no evidence of any contact between the appellant and Carlos between 7 March 2003 and 19 March 2003, a period during which McGee was waiting for Carlos to deliver the money and was sourcing the drugs, that is “when the real action of this drug deal is taking place”.

77 Conversation on 12 March 2003 between McGee and the appellant

The appellant was expressing his anger at McGee ringing him. The appellant did not want McGee to telephone him about Carlos.

78 Conversation on 20 March 2003

It was apparent that the appellant had no knowledge that Carlos had in fact returned to Sydney.

It was submitted that, if the appellant had been a party to a drug conspiracy, he would have been provided with more information and he would have been playing a greater role. The appellant was contacted, only when there was a problem with Carlos, the person the appellant had recommended.

79 Conversations on 21 March 2003 and 7 April 2003

80 Conversation of 25 March 2003 between the appellant and Kellaway (LD123)

It was pointed out by counsel for the appellant that there were a number of gaps in the recording where what was said was not audible or not distinguishable and it was submitted to the jury that no attempt should be made by the jury to fill in the gaps.

In the conversation the appellant told Kellaway how the appellant had first become aware of the drug deal by being shown heroin in Syria by Carlos.

The appellant had made telephone calls in his own name, which the appellant would not have done if he had been aware of the drug deal and which Kellaway, given his obsession about the need for security, would not have permitted, if the appellant had actually been a party to the conspiracy.

The appellant took the further telephones from Kellaway because he did not want to be further implicated in the drug conspiracy.

Much of what Kellaway said to the appellant was the conveying of information to the appellant, which the appellant would be expected to have already had, if he had been a party to the conspiracy.

The appellant asked “why don’t they bust me”, because he was concerned that, innocent though he was, the telephone calls he had made would point to him and he might be arrested. It would be hard for the appellant to feel confident that he could explain “look, I knew about the drug deal but I didn’t have anything to do with it”.

The appellant had calculated how much money would be made, because of his concern that Kellaway and McGee should “get your money back”.

81 Conversation on 15 April 2003

82 The further conversations between Carlos and the appellant were clearly about the arms deal “because the drug deal is dead in the water”.

83 Detective Purchas gave evidence at the trial that the authorities delayed arresting the appellant until 25 July 2003, because they took the arms deal seriously and wanted to find out what would happen in the arms deal.

Grounds of appeal

84 The grounds of appeal against conviction were:

Ground 1: There was a miscarriage of justice in that the jury were wrongly informed by the Crown about the presumption of innocence.

Ground 2: Failure to sum-up the defence case.

Ground 3: Failure to sum -up the evidence in the trial with the elements of the offence.

Ground 4: Failure to give a good character direction.

85 It is convenient to deal with the grounds of appeal in a different order from that in which they were set out in the document stating the grounds which was filed on behalf of the appellant.

Ground 1 — There was a miscarriage of justice in that the jury were wrongly informed by the Crown about the presumption of innocence

86 This ground of appeal was based on a part of the Crown prosecutor’s closing address in which the prosecutor said:-

“Now, in addition to those two matters, the evidence and your commonsense, the other thing that you have to assist you is the presumption which I told you ran throughout the trial and continues to run at this stage, that under our law an accused person is to be presumed to be innocent until such time as you have the opportunity to retire to consider your verdict and you make a decision. Up until that time the presumption of innocence, as it’s called, runs and every accused – not just Mr El-Jalkh – every accused should have the benefit of your keeping an open mind until at the end of the day you’re asked to go and consider your decision and, of course, you can understand why that’s important, because I’m going to say certain things to you now about what you should make of all of this evidence, Mr Johnston – you have yet to hear from him and you have yet to hear from his Honour and in particular you have yet to hear from his Honour as to the law that you apply in relation to this matter.”

87 It was submitted on behalf of the appellant that in this part of his address the prosecutor conveyed to the jury that the presumption of innocence would apply only up until the jury retired to consider its verdict, whereas it is clear that the presumption continues up until a jury is satisfied beyond reasonable doubt of the guilt of the accused (Robinson v The Queen (1991) 180 CLR 531 at 535 per curiam).

88 It was submitted that the Crown prosecutor had made a similar error in his opening address, when he said words to the effect that the presumption of innocence would continue until the jury had heard all of the evidence, the addresses and the summing-up, “until you have all of the material before you”.

89 There was no complaint by counsel for the appellant at the trial about these parts of the prosecutor’s addresses.

90 What the Crown prosecutor said in his two addresses was not correct; the presumption that the accused is innocent continues up until such time as the jury in its deliberations is satisfied beyond reasonable doubt that the accused is guilty. However, I do not consider that the prosecutor’s errors were material.

91 The prosecutor’s closing address was followed at the trial by defence counsel’s address in which counsel stressed the need for the Crown to prove beyond reasonable doubt that the appellant was involved in the importation.

92 In the part of his closing address which I have quoted the Crown prosecutor told the jury that it had not yet received directions from the trial judge about the law it was to apply. When the trial judge summed up to the jury he gave repeated, correct, directions about the criminal onus and standard of proof and no request was made that he should say anything further.

93 I would refuse leave under r 4 in respect of this ground.

Ground 4 — Failure to give good character direction

94 This ground of appeal was based on a part of the appellant’s evidence in chief, very close to the end of the evidence in chief, which was in the following terms:

95 It was submitted that in giving evidence that he had never previously been arrested or charged with any offence anywhere in the world the appellant was raising his good character and directions of the usual kind should have been given by the trial judge, that, if the jury found that the appellant was a person of good character, the jury should take that into account (1) on the question of guilt, that is the improbability of a person of good character having committed the offence charged and (2) on the question of the appellant’s credibility.

96 It was submitted on behalf of the appellant that it would have been particularly important in the present case for a direction to have been given about the relevance of good character to the accused’s credibility. The appellant had given evidence at the trial and his evidence was in stark conflict with the evidence of the principal Crown witness, whose own credibility was open to attack.

97 No application was made at the trial for directions about character and the trial judge did not give any directions about character.

98 Character is raised by an accused person in his evidence, only where the evidence is given with the intention of raising good character. See, for example, R v Fuller (1994) 34 NSWLR 233 at 238 per Hunt CJ at CL.

99 I am not satisfied that in giving the evidence about his never previously having been arrested or charged with a criminal offence the appellant was intending to raise good character. The evidence was given in the context of the appellant proffering a reason why he had not told the full truth when interviewed by police. He said he had not told the full truth, because, not having previously been arrested or charged with any offence, it was a novel and terrifying experience for him to be interviewed by police.

100 The appellant gave evidence to a similar effect in cross-examination, where the following questions and answers occurred:-

101 The circumstances that counsel for the appellant at the trial made no submission about the appellant’s good character in his closing address and did not ask the trial judge to give directions about character, support the conclusion that there was no intention on the part of the appellant to raise character.

102 Even if there is evidence of the good character of the accused in a criminal trial “there is no rule of law that in any case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used” (Simic v The Queen (1980) 144 CLR 319 at 333 per curiam; see also Melbourne v The Queen (1998-1999) 198 CLR 1 per McHugh J at 14 (30), Gummow J at 29 (77) and Hayne J at 57 (157)).

103 In the present case, if good character had been raised, there was, on the appellant’s own evidence, much countervailing evidence of bad character. On the appellant’s own evidence, he had introduced Carlos to Kellaway and McGee for the purpose of money laundering and the proposed arms deal, whether or not it was illegal under Australian law, depended on the cooperation of members of the Chinese and Syrian armed forces who the appellant believed to be corrupt.

104 If the trial judge had been asked for and had given directions about the character of the appellant, the judge would have been required to remind the jury of evidence tending to show bad character on the part of the appellant, so as to enable the jury to determine whether it should find that the appellant was a person of good character.

105 I would refuse leave under r 4 in respect of this ground.

Ground 2 — Failure to sum-up the defence case

Ground 3 — Failure to sum-up the evidence in the trial with the elements of the offence

106 These grounds of appeal are clearly interrelated and were dealt with together in the written and oral submissions of both parties. It is convenient to deal with them together in this judgment.

107 Each of the grounds of appeal asserts that the trial judge’s summing-up was defective, either in failing to put the defence case (ground 2) or in failing to summarise the evidence and relate it to the elements of the offence charged. It is, accordingly, necessary to make some examination of the trial judge’s summing-up and also of the defence case as put by counsel for the appellant at the trial in his closing address. It is convenient to turn first to defence counsel’s closing address at the trial.

The closing address for the defence at the trial

108 At the trial counsel for the appellant made a closing address which began shortly before lunch on Friday 7 October 2005 (the day’s hearing concluded at 3 pm) and finished shortly before lunch on Monday 10 October 2005.

109 In his address counsel reiterated that it had never been disputed by the defence that there had been a conspiracy; what had been disputed was whether the appellant had become part of the conspiracy.

110 It was submitted that the Crown case depended on Carlos’ evidence; that it was necessary for the jury to assess Carlos as a witness; that the jury should find that Carlos had been motivated by money, hoping to obtain a container of shoes without paying for it and then to obtain a reward from assisting the authorities; and that the jury should find that Carlos was an unreliable witness and had falsely implicated the appellant in the drug conspiracy.

111 It was submitted that there was an innocent explanation of the appellant’s conduct, competing with the explanation advanced by the Crown. From start to finish it had been the arms deal which had motivated the appellant. There was evidence that the arms deal was already being discussed before the appellant went overseas on 29 December 2002. The appellant’s travel movements and what he had said in the recorded conversations, including apparently incriminating remarks, could be explained as referring to the arms deal. The appellant had in fact gone to China in 2003 and had had a meeting with Chinese generals in Beijing.

112 It was submitted that the appellant had played a very minor role. The appellant had merely introduced Kellaway and McGee to Carlos for the purpose of money laundering, to enable Kellaway and McGee to put “black” money into a purchase of a container of shoes. The appellant had been merely a go-between or a messenger boy. The others, that is Kellaway, McGee and Carlos, had attempted to conceal from the appellant the drug conspiracy into which they had entered. It was true that the appellant had at a late stage become aware of the drug conspiracy between the others but he himself had never joined the conspiracy. Notwithstanding some assertions he had made to Kellaway, he had not in fact contributed any money to such a conspiracy and there was no evidence of any definite benefit he would receive and these factors made it improbable that he had ever been part of the conspiracy.

113 On the morning of 10 October 2005 in a part of his address which I have already summarised, counsel for the appellant took the jury through a number of the recorded conversations, repeating the appellant’s explanations, which were consistent with his innocence, of apparently incriminating passages.

The summing up

114 The trial judge commenced the summing-up in the afternoon of 10 October 2005. The first thing that the trial judge told the jury was “I will try to make this as pain-free as possible”. The summing-up was virtually concluded on the afternoon of 10 October. On the following morning the trial judge, at the instance of the prosecutor, gave fairly brief formal directions about the elements of the offence of conspiracy under the Criminal Code and then sent the jury out to consider its verdict. The transcript of the summing-up occupied a little over 30 pages.

115 Much of the summing-up was devoted to directions or suggestions of a general kind which are to be found in most, if not all, summings-up, for example directions about the respective functions of the trial judge and the jury, the onus and standard of proof (to which I have already referred in considering the first ground of appeal) and the drawing of inferences and suggestions about how the jury might conduct its deliberations.

116 What the trial judge said in the summing-up which was specific to the present case was limited to the following.

The trial judge stated the terms of the charge and repeated the period within which it was alleged that the offence of conspiracy had been committed and the type of drug to which the charge related.

The trial judge noted the concession made on behalf of the appellant that there had been a conspiracy to import MDMA into Australia and that the only issue in the trial was whether the Crown could prove that the appellant had been a party to that conspiracy.

The trial judge directed the jury that proof merely that the appellant had knowledge of the conspiracy formed by others was not sufficient; the Crown had to prove that the appellant had agreed to enter into that conspiracy.

1. Oral evidence of witnesses, principally Carlos and the appellant.

2. Evidence which the trial judge described as “objective evidence”, which included the evidence of the recorded conversations. As noted earlier in this judgment, the trial judge gave a Butera-type direction about the transcripts of the recorded conversations.

“Essentially, it is probably fair to say that the Crown suggests to you, firstly, that you would accept Carlos. Secondly, that when you look at what I might call the objective evidence, that is the evidence that comes from a fixed source and it cannot be changed, namely the documents, the telephone intercepts, the listening devices, when you look at that evidence and you look at Mr El-Jalkh’s evidence the only inference that you would draw would be that Mr El-Jalkh was involved in a conspiracy.

Now, it is probably also fair to say that Mr Johnston puts to you the exact opposite, that you would not have regard to Mr Carlos’ evidence, that the evidence in the objective evidence, the evidence in the listening devices and the documents and things like that, is capable of another interpretation and that with all his faults you would nonetheless accept Mr El-Jalkh sufficient that it would raise a doubt in your mind that the Crown has in fact proved the case…”

“…the Crown certainly relies upon the evidence of Carlos and the recorded material to establish the case beyond reasonable doubt but the Crown also suggests to you that, even if you got to the stage where you completely rejected Carlos’ evidence, there would still be sufficient evidence available to you on the tape recorded material for you to be satisfied beyond reasonable doubt that Mr El-Jalkh was indeed part of a conspiracy to import MDMA into the country.”

The trial judge told the jury that it was necessary for them to assess Carlos and the appellant as witnesses, taking into account that English was not the first language of either of them. His Honour told the jury that they should treat Carlos’ evidence “with some degree of caution”, because Carlos was hoping for a monetary reward and might be tailoring his evidence to achieve that result.

117 In the summing-up the trial judge said:-

“I could but I think it would be somewhat pointless going through each of the telephone intercepts and pointing out to you what Mr Crown said as to how that intercept should be interpreted and how Mr Johnston said it should be interpreted. You have heard their arguments that have been put to you. If you accept them, well and good. If you have thought of other ways of looking at the material, that is again well and good; that is a matter for you to determine. But I do not think that me going through two volumes of telephone intercepts and putting what has already just been put to you by counsel is going to be very productive for anyone.”

118 What is not to be found in the summing-up is any summary of the evidence, either of the oral evidence of Carlos or the appellant or of the objective evidence, or any summary of the submissions of the parties, and particularly the defence submissions, apart from the general statement of the nature of the Crown case and the nature of the defence case which I have already quoted.

119 No application was made by counsel for the appellant at the trial that the trial judge should say anything further in the summing-up (apart from counsel joining in a submission by the prosecutor that the trial judge had not correctly stated the nature of an offence of conspiracy under the Criminal Code, a matter having no relevance to the present grounds of appeal).

The appellant’s submissions on the appeal

120 It was submitted on behalf of the appellant that the trial judge “almost entirely abdicated his duty to assist the jury in relation to the facts that they would have to consider and the issues they would have to decide, that is how to apply the law to the facts”.

121 Counsel referred to a number of authorities stating principles governing summings-up in criminal trials, including R v Zorad (1990) 19 NSWLR 91 at 105; Cleland v The Queen (1982) 151 CLR 1 at 10; R v Coleman (1990) 19 NSWLR 467 at 486; R v Gutierrez [2004] NSWCCA 22 at [86]; R v Lawrence (1982) AC 510-519.

122 It was conceded by counsel for the appellant that s 161 of the Criminal Procedure Act provides that a trial judge need not summarise the evidence given in a trial, if the judge is of the opinion that, in all the circumstances of the trial, a summary is not necessary. However, it was submitted that the operation of s 161 is limited by its own terms, including sub-s (3), and by the interpretation which has been placed on s 161 or its predecessors by the courts.

123 It was submitted that circumstances which have been identified as rendering it unnecessary for a trial judge to summarise the evidence in a trial have included that the trial was a short one and that a summary of the evidence might work to the disadvantage of the accused, because all, or almost all, of the evidence in the trial was adduced in the Crown case. However, in the present case the trial had lasted approximately a month and the appellant had given extensive evidence.

124 Counsel pointed out that in the summing-up the trial judge had not made any summary at all of the oral evidence of either Carlos or the appellant.

125 Although the trial judge had referred to the evidence of the recorded conversations as “objective evidence”, the parties had differed in the interpretations they submitted should be placed on what had been said in the conversations and the inferences they submitted should be drawn from what had been said and the trial judge in his summing-up should have explained to the jury the competing interpretations and inferences.

126 It was a vital part of the appellant’s case that he had been a party to a proposed arms deal and that the objective evidence, including what he had said in conversations to which he had been a party and his travel movements, could be explained by reference to the proposed arms deal. However, the trial judge had made only one passing reference, which I have already noted, to the arms deal.

127 It was submitted that, although no application had been made by counsel for the appellant at the trial that the trial judge should say any more in the summing-up, it was fundamental to a criminal trial before a jury that the trial judge should deliver a summing-up complying with the principles stated in the authorities counsel had referred to; that the summing-up delivered by the trial judge had not complied with these principles; that leave under r 4 of the Criminal Appeal Rules should be granted; and that it would be inappropriate for this Court to apply the proviso to s 6 of the Criminal Appeal Act.

The Crown’s submissions on the appeal

128 It was submitted that, despite its length, the trial had been a simple one. There had been only a single issue, that is whether the Crown could prove that the appellant had been a party to a conspiracy, which the appellant conceded had existed between other persons. There had, accordingly, been no need for the trial judge to relate evidence given in the trial to elements or ingredients of the offence of conspiracy. The trial had lasted as long as it did, because of the wealth of material for the Crown in the recorded conversations.

129 The recorded conversations had been traversed in considerable detail several times in the course of the trial, in the examination and cross-examination of Carlos and the appellant and in the addresses of counsel.

130 Defence counsel had made his closing address on Friday 7 October 2005 and the morning of Monday 10 October 2005, and the trial judge had delivered almost all of his summing-up on the afternoon of 10 October. It was in the part of his address on the morning of 10 October that defence counsel had dealt in detail with the recorded conversations.

131 It should be inferred that it had become apparent to the trial judge by the time he commenced his summing-up by saying he would try to make the summing-up “as pain-free as possible”, that the jury’s powers of endurance had already been severely taxed by detailed examinations of the recorded conversations.

132 The trial judge had stated, clearly, that he would not go through the recorded conversations and would not repeat the arguments of counsel and no complaint had been made by counsel for the appellant at the trial.

133 During the retirement of the jury the members of the jury had their individual copies of the transcripts of the recorded conversations and by coming into the courtroom they could have access to equipment with which to play the recordings of the conversations.

Decision

134 In Zorad the Court, in a passage in its judgment which has subsequently often been quoted or referred to, said at 105:-

each

135 It was submitted by counsel for the Crown on this appeal that what was said by the Court in Zorad should be read in the context of the particular facts of that case and as limited by the facts of that case. However, as I have already stated, the passage has often been quoted or referred to in other cases and I consider that what was said should be regarded as being of general application.

136 In R v Tillott (1991) 53 A Crim R 46 at 51 Hunt J (as his Honour then was), who was the presiding member of the Court in Zorad, explained that the ingredients (or elements) about which the jury must be directed are only the ingredients of the offence charged which are in dispute in the particular trial.

137 In the present case there was no dispute that there was a conspiracy to import MDMA and the only issue was whether the appellant had become a party to that conspiracy. Hence, there was no need for the trial judge to give any more extensive directions than he gave about the elements of the offence of conspiracy. Zorad would, however, require that evidence relating to the issue of whether the appellant had become a party to the conspiracy be collected and an outline given of the arguments of the parties in relation to that evidence.

138 After Zorad was decided, s 405AA of the Crimes Act was enacted, coming into force on 17 March 1991. That section of the Crimes Act was subsequently repealed and replaced by s 99 of the Criminal Procedure Act, which subsequently became s 161 of that Act.

139 All three statutory provisions have been in substantially similar terms. Section 161 of the Criminal Procedure Act now provides:-

140 It is clear from the terms of the section that the only summing-up function of a trial judge with which s 161 deals is the function of summarising the evidence given at the trial. All other functions to be performed by a trial judge in summing-up to the jury are expressly preserved by sub-s (3).

141 The limited effect of s 405AA of the Crimes Act (and hence s 161 of the Criminal Procedure Act) was stated in cases decided after s 405AA came into force.

142 In R v Condon (1995) 83 A Crim R 335 Allen J, with the concurrence of the other members of the Court, said at 347-348:-

“Section 405AA applied to the present trial. But even if it reasonably was open to his Honour to form the opinion that a summary of the evidence was not necessary as to which it is not necessary to express an opinion, s 405AA does not relieve a trial judge of the duties to which I have referred. The fulfilment of those duties does not require that the evidence be summarised as distinct from the respective cases being stated and the jury instructed as to the application of the law to those cases.”

143 In R v Piazza (1997) 94 A Crim R 459 Grove J, with the concurrence of the other members of the Court, said at 463:-

Domican v The Queen

144 In the present case I consider it was well open to the trial judge to form the view that a general summary of the evidence given in the trial, and particularly of the evidence of the recorded conversations, was not necessary. It is true that the trial had not been a short trial and that there had been extensive evidence in the defence case. However, circumstances of the trial which would support the formation of such a view by the trial judge would include that there was only a single issue in the trial, that the recorded conversations had been traversed in great detail several times in the trial and that the jury, by means of the transcripts of the recorded conversations which had been supplied to them and by their access to equipment for playing the recordings of the conversations, had no need to be reminded of the terms of the conversations. I also consider that the trial judge could properly have some regard to the view he had apparently formed that the jury were exhibiting signs of fatigue and would be unlikely to be receptive to yet another progression through the recorded conversations. In any event, a summing-up in which the trial judge went through each of the recorded conversations in chronological order would be similar to the type of summing-up which was the subject of criticism in Zorad and Piazza.

145 As there was no dispute at the trial that there had been a conspiracy to import not less than a commercial quantity of MDMA, that is no dispute that all the elements of the offence of conspiracy were present, and the only issue was whether the appellant had become a party to the conspiracy, I would not uphold ground 3, which was expressed as being a failure by the trial judge to sum-up the evidence in the trial with the elements of the offence.

146 The functions to be performed by a trial judge in summing-up to a jury were discussed by Wood CJ at CL in R v Meher [2004] NSWCCA 355. His Honour said, with the concurrence of the other members of the Court:-

Pemble v R

Domican v R

…………………..

[82] It is essential, if a summing up is to be fair and balanced, that the defence case be put to the jury.

Regina v Schmahl

R v Wilson

Raspor v R

Crimes Act

Regina v Tomazos

In the result the conclusion appears to me to be inevitable that not only has there been a miscarriage of justice but a substantial miscarriage. The Appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused’s defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.

It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, “Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more”. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused.

R v Malone

Van

Leeuwen v The Queen

A trial judge is not bound in his summing up to comment on all of the evidence or to refer to all of the contentions on which the accused has relied. The adequacy of a summing up in its references to questions of fact must depend upon the circumstances of the particular case. In the present case the learned trial judge not only failed to indicate to the jury the significance of the important piece of evidence but by stating that he did not follow the argument of counsel might have been through by the jury to be depreciating its importance.”

147 It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel.

148 In the present case the trial judge in his summing-up did identify for the jury the single issue in the trial, that is whether the Crown had proved that the appellant was a party to a conspiracy which had admittedly come into existence, and directed the jury that it would not be sufficient for the Crown to prove merely that the appellant had acquired knowledge of the existence of the conspiracy. However, all the trial judge did by way of putting the defence case was to tell the jury that counsel for the appellant had made submissions that the jury should not accept Carlos’ evidence, that the objective evidence was capable of an interpretation other than that urged by the Crown and that the jury should find that the appellant’s evidence was reasonably possibly true. The trial judge did not refer to any specific parts of the oral evidence or of the recorded conversations.

149 In my opinion, the trial judge failed to perform the essential function of putting the defence case on the issue of whether the Crown had proved that the appellant was a party to the conspiracy, including making such references to the evidence as would be required to enable the jury properly to understand the defence case. Even though defence counsel had completed his closing address only on the morning of the day on which the trial judge gave most of the summing-up, the trial judge was required, on his own authority as the trial judge, to put the principal arguments for the accused. The references in the summing-up to the arguments for the accused and to the evidence need not have been lengthy or discursive.

150 A particularly important argument or set of arguments for the appellant was that the appellant’s travel movements and what he had said in the recorded conversations, including apparently incriminating remarks, could be explained as references to the proposed arms deal; that there was evidence of such a proposed arms deal; that there was evidence that the proposed arms deal was being discussed at an early stage, before the appellant’s departure for overseas on 29 December 2002; that some things said in the recorded conversations were, fairly clearly, references to the proposed arms deal; that there was evidence that after McGee was arrested and the appellant became aware of the arrest of McGee the appellant had continued with the proposed arms deal; that the appellant had actually travelled to China for the purposes of the proposed arms deal; and that the authorities had taken the proposed arms deal sufficiently seriously to delay arresting the appellant for some months. These arguments should have been put to the jury by the trial judge, with some reference to evidence which might support the arguments.

151 I also consider that the trial judge should have put to the jury at least some of the explanations of individual recorded conversations which I have summarised earlier in this judgment under the heading “the defence case at the trial about the recorded conversations”. As the Crown relied so much on conversation LD 123, I consider it was essential for the trial judge to put to the jury such explanations as the appellant had offered of apparently incriminating remarks and conduct by him in the course of that conversation.

152 The trial judge was not relieved of the requirement of putting these matters to the jury, because they had already been put by defence counsel or because they might have seemed obvious or because they might have seemed difficult to accept.

153 In my opinion, ground 2, that is failure to sum-up the defence case, has been established. Because of the fundamental nature of the requirement that a trial judge in a summing-up in a jury trial put the defence case, I would grant leave under r 4 of the Criminal Appeal Rules.

154 Because of the fundamental nature of the requirement that a trial judge put the defence case in a summing-up, I also consider that it would be inappropriate to apply the proviso to s 6(1) of the Criminal Appeal Act. A substantial miscarriage of justice occurred.

155 In Weiss v The Queen (2005) 224 CLR 300, where the High Court considered the application of the proviso in the corresponding statutory provision in Victoria, the High Court said at 317 [45] that there could be cases “where there has been a significant denial of procedural fairness at trial” such that it would be inappropriate to apply the proviso, even if the appellate court was persuaded to the requisite degree of the appellant’s guilt.

156 In Taleb v The Queen [2006] NSWCCA 119, a case in which the trial judge in the summing-up had repeatedly commented unfavourably on the case of the appellant and the evidence of the appellant and his witnesses, a majority of the Court of Criminal Appeal (Grove J and Howie J) held that the undermining of the appellant’s case in the summing-up amounted to such a denial of procedural fairness that the proviso should not be applied. In my opinion, in the present case there was a denial of procedural fairness such that the proviso should not be applied.

Conclusion

157 In my opinion, leave under r 4 of the Criminal Appeal Rules should be granted to argue grounds of appeal 2 and 3, ground 2 should be upheld, the appeal against conviction should be allowed and a new trial should be ordered. In the circumstances it is unnecessary to deal with the application for leave to appeal against sentence.

158 SIMPSON J: I agree with James J.

**********

Citations

El-Jalkh v R [2009] NSWCCA 139

Most Recent Citation

Cases Citing This Decision

6

FH v Regina [2014] NSWCCA 231

Haile v R [2022] NSWCCA 71

Gorge v The Queen [2021] NSWCCA 206

Cases Cited

19

Statutory Material Cited

5

Butera v Director of Public Prosecutions (Vic) [1987] HCA 58

Robinson v The Queen [1991] HCA 38

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CITATION:	El-Jalkh, Antoine v R [2009] NSWCCA 139
HEARING DATE(S):	5 May 2009
JUDGMENT DATE:	25 June 2009
JUDGMENT OF:	Spigelman CJ at 1; James J at 2; Simpson J at 158
DECISION:	1. Leave under r 4 of the Criminal Appeal Rules granted to argue grounds of appeal 2 and 3. 2. Ground 2 upheld. 3. The appeal against conviction allowed. 4. New trial ordered.
CATCHWORDS:	CRIMINAL LAW — character of the accused — summing-up — putting the defence case — proviso to s 6(1) Criminal Appeal Act
LEGISLATION CITED:	Crimes Act Criminal Appeal Act Criminal Code Act 1995 (Cth) Criminal Procedure Act Customs Act
CASES CITED:	Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180 Cleland v The Queen (1982) 151 CLR 1 Melbourne v The Queen (1998-1999) 198 CLR 1 R v Coleman (1990) 19 NSWLR 467 R v Condon (1995) 83 A Crim R 335 R v Fuller (1994) 34 NSWLR 233 R v Gutierrez [2004] NSWCCA 22 R v Lawrence (1982) AC 510-519 R v Meher [2004] NSWCCA 355 R v Piazza (1997) 94 A Crim R 459 R v Tillott (1991) 53 A Crim R 46 R v Zorad (1990) 19 NSWLR 91 Robinson v The Queen (1991) 180 CLR 531 Simic v The Queen (1980) 144 CLR 319 Taleb v The Queen [2006] NSWCCA 119 Weiss v The Queen (2005) 224 CLR 300
PARTIES:	EL-JALKH, Antoine Regina
FILE NUMBER(S):	CCA 2007/3230
COUNSEL:	P D Lange (Appellant) R F Sutherland SC (Respondent)
SOLICITORS:	Nyman Gibson Stewart Commonwealth Director of Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0965
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	16 February 2006