Fattal v Regina

[2006] NSWCCA 359

CITATION:	Fattal v Regina [2006] NSWCCA 359
HEARING DATE(S):	24 October 2006
JUDGMENT DATE:	17 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Sully J at 2; Hislop J at 51
DECISION:	Appeal against conviction dismissed
LEGISLATION CITED:	Evidence Act 1995 (NSW)
CASES CITED:	Tripodi v The Queen (1961) 104 CLR 1 Ahern v The Queen (1988) 165 CLR 87 M v The Queen (2002) 213 CLR 606 MFA v The Queen (2002) 213 CLR 606
PARTIES:	Toufic Fattal Regina
FILE NUMBER(S):	CCA 2006/1524
COUNSEL:	J. R. Dwyer - Crown A. Francis - Appellant
SOLICITORS:	S. Kavanagh - Crown K. Kyriacou - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0292
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ

2006/1524

McCLELLAN CJ at CL
SULLY J
HISLOP J

17 November 2006

Toufic FATTAL v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Sully J.

2 SULLY J:

Introduction

3 In April 2005 the appellant, Mr. Fattal, stood trial in the District Court at Sydney before her Honour Judge Morgan and a jury. He was so tried upon an indictment framed as follows:

“For that he, on 10 August 2003 at Rockdale in the State of New South Wales did supply an amount of a prohibited drug, that is 3.4 methylenedioxymethalamphetamine being a quantity not less than a large commercial quantity of that drug.”

4 The jury found the appellant guilty of that charge. He was thereupon convicted and sentenced to a substantial term of imprisonment. He now appeals against his conviction. He does not seek leave to appeal against his sentence. Three grounds of appeal were argued. They will be dealt with later herein.

An Overview of the Facts

5 The Crown’s written summary of the trial contains an overview which it is convenient to reproduce:

“In August 2002, police investigating the interstate supply of prohibited drugs learnt from (lawfully) intercepted telephone calls that Brad Forrest, acting on behalf of Jim Nabhan and Chris Kostopoulos, was travelling from Coolangatta to Sydney on 10 August 2002 to obtain ecstasy from Michael Elabed and others. In particular, that a price of $18 per tablet had been agreed upon and that Forrest would be carrying $66,000 in cash.
On 10 August 2002, Forrest arrived at Sydney Airport and was met by Elabed and driven to a house in Rockdale. At the house, Forrest and Elabed met up with Dirani and another man, Goran Nikolovski. Nikolovski produced an ecstasy tablet and the men tested it. Forrest then handed over $66,000 to Nikolovski, who shortly afterwards left the premises. The appellant then arrived.
About one hour later, Nikolovski returned with a large quantity of ecstasy (approximately 3 kilograms or 9,000 tablets) in plastic bags. Forrest took possession of the tablets and was driven by Elabed to the Airport Hilton. There, Forrest took a room for the night. He was joined in his room a short time later by the appellant.
The money Forrest provided to Nikolovski ($66,000) was part-payment for the tablets. The parties agreed that the balance of the money would be collected from Nabhan and Kostopoulos by the appellant and Forrest. Nabhan and Kostopoulos resided in Queensland.
Whilst at the hotel, the appellant obtained approximately 150 tablets from Forrest, telling him that Elabed had directed that he be given these tablets.
On the morning of 11 August 2002, Forrest and the appellant went to the airport and separately purchased tickets to Queensland. They were arrested before boarding the plane. Police located 8,877 tablets in Forrest’s luggage and 156 tablets in the appellant’s luggage. (On analysis, the tablets were found to contain ecstasy.)
Forrest later pleaded guilty to supplying a large commercial quantity of ecstasy and gave evidence against the appellant.
The Crown case relied chiefly on the evidence of Forrest, his account of events and explanation of the intercepted calls, as well as evidence of physical surveillance by police to prove that the appellant was a participant in a joint criminal enterprise to supply the ecstasy tablets from Elabed and his associates in NSW to Nabhan and Kostopoulos in Queensland. In particular, the Crown contended that the appellant acted in concert with Elabed, Dirani and Nikolovski to supply the drugs to Forrest for delivery to Nabhan and Kostopoulos in that:
- he was present when the drugs were handed to Forrest;
- he was at the hotel and staying the night and knew what was in the bag because Elabed had told him to get 150 tablets out;
- he was accompanying Forrest back to Queensland to obtain the money for the tablets which were given on credit, and
- there was evidence of mobile phone calls made and received on his two mobile phones and address book data extracted from those phones also demonstrated his association with Elabed and Dirani as well as with Forrest and Nabhan.
The appellant did not give evidence and relied on evidence adduced in cross-examination of Crown witnesses. Through his counsel, he contended that there was insufficient evidence to establish that he participated in the joint criminal enterprise. Rather, he submitted that he was only involved in a later separate criminal enterprise, one with Elabed, concerning the 156 tablets that he had obtained from Forrest whilst at the hotel. In particular, the appellant presented a case relying upon Forrest’s evidence of what he saw and did on 10 August 2002. He contended this evidence:
- showed that he lacked any control over the drugs found on Forrest;
- indicated the limited extent of what he saw at Rockdale, that is, he did not actually see the drugs or the payment of monies; and
- demonstrated the limited extent of any assistance he gave to Forrest or to those within the NSW syndicate, that is, he did not take part in the conversations intercepted or in certain activities immediately preparatory to the drugs being handed to Forrest such as testing a sample of the drug or the backroom discussions amongst Nikolovski, Elabed and Dirani.
Counsel for the appellant also contended that the content of the intercepted conversations was too vague and unreliable to implicate the appellant in the alleged supply.”

Appeal Ground 1

6 The ground is:

“The trial Judge erred in the manner in which she summed up to the jury on the nature of the alleged joint criminal enterprise.
(a) Her Honour erroneously extended the alleged joint enterprise to include the appellant’s conduct after the actual supply to Forrest was complete.
(b) Her Honour left a different case of supply than that alleged by the Crown.
(c) The directions gave rise to a latent duplicity.”

7 The paragraphs (a), (b) and (c) are, essentially, particulars of the general proposition that the jury was misdirected as to the scope of the alleged joint criminal enterprise upon which the Crown case rested. The appellant’s submissions in that contention are summarised conveniently in the following passages taken from the appellant’s written submissions:

“2.25 It is clear from the Crown opening, and as her Honour subsequently made clear to the jury that the Crown was not relying upon the extended definition of supply but rather its case was that the appellant had supplied the tablets as a participant in a joint criminal enterprise. That supply being to Mr. Forrest.
2.26 Whilst it is conceded that the evidence of the appellant’s involvement after the supply to Forrest was admissible in support of the Crown case that the appellant had relevant knowledge of, and participation in, the transaction when present at the premises in Rockdale, the evidence of his subsequent involvement did not form part of the actus reus of the Crown case of supply. This conduct was perhaps capable of constituting a different supply to the Queensland syndicate based on the extended definition of supply however this was not how the Crown put its case.
2.27 It is submitted that the trial Judge erred in her directions to the jury by acknowledging the Crown case alleged the actual supply to Forrest and then extending the parameters of the joint criminal enterprise from one constituted by the actual supply to Forrest to include the appellant’s intended assistance in taking the drugs to Queensland for dissemination. If the jury were simply satisfied that the appellant was travelling to Queensland for dissemination. If the jury were simply satisfied that the appellant was travelling to Queensland for the purposes of extracting a debt for the drugs supplied in New South Wales (this supply having been complete) whilst he may have been liable for another offence this was not capable of establishing his participation in the supply to Forrest. It is submitted that the summing up left two different cases of supply resulting in a latent duplicity and giving rise to a miscarriage of justice.”

8 When the Crown Prosecutor opened the Crown case to the jury, he outlined, broadly speaking along the lines of the overview quoted previously herein, the basic facts and circumstances upon which the Crown case would rely. The Crown Prosecutor summarised, in the concluding segment of the opening address and as follows, the essentials of the Crown case that the Crown was undertaking to prove beyond reasonable doubt:

“Here, the allegation against the accused is that he supplied, as I say, over six times the large commercial quantity and the total weight of the tablets exceeded three kilos.
The Crown case is that the accused, along with various other persons, was involved in a joint criminal enterprise. Now a joint criminal enterprise occurs where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. That understanding or arrangement need not be expressed, and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime was committed.
I again anticipate that in due course her Honour will be giving directions in relation to that legal concept also.
As I say, the Crown case is that this accused was involved in a joint criminal enterprise with various other people, obviously Dirani, Nikolovski, Elabed, Forrest himself and others.”

9 Counsel then appearing for the appellant, (not being counsel who appeared for the appellant in this Court), took no objection to those parts of the Crown opening and did not himself make an opening statement to the jury at the conclusion of the Crown address.

10 On the fifth day of the trial, and following immediately upon the conclusion of Mr. Forrest’s evidence, counsel for the appellant applied for the discharge of the jury upon the basis that “……… at the conclusion of the evidence of Mr. Forrest there is irrelevant and highly prejudicial material which has been placed before the jury and in respect of which there is no evidence”.

11 The point of the objection was that the Crown had led evidence of telephone conversations to none of which the appellant was a party; that the conversations could be understood to be discussing a prospective supply of ecstasy tablets; that the discussion mentioned variously stamped or coloured tablets; and that none of those descriptions matched the description of the tablets actually supplied to Mr. Forrest at the Rockdale meeting. Her Honour, in attempting to pin down the actual basis of the application, expressed as follows her then understanding of the Crown case:

“HER HONOUR: The Crown case is that Mr. Forrest was a courier for Mr. Nabhan and Mr. Kostopoulos to come down and pick up some ecstasy tablets from the people in Sydney, one of whom happened to be Mr. Fattal who was involved. That is what the Crown’s case is. It’s not the Crown case that they had to pick up a particular type. The Crown case is that all of this conversation preceding this goes back to a few days before they go down. It is obvious the content is relating to ecstasy, whatever sort of tablets they were, they were all ecstasy tablets. That is what the Crown case is as I understand it.” [T 204]

12 This gave rise to further submissions and discussion including this:

“[COUNSEL] …….That, in my submission, is the very nub of the Crown case that the similarity as between the tablets with Mr. Forrest and the tablets with Mr. Fattal provides the basis for taking the quantity together. In my submission those references that I’ve referred your Honour to are not probative in a situation where Mr. Fattal is not party to those conversations and ---
HER HONOUR: He doesn’t have to be party to those conversations.
COUNSEL: I understand that your Honour but it is something which is nonetheless relevant when the court considers the exercise of its fact finding.” [T 205]

13 The Crown Prosecutor, when invited to respond to the application, said:

“CROWN PROSECUTOR: I oppose the application. I think - …(counsel) … - may be under a misconception. The Crown case is not that Fattal had possession of 9,000 tablets. The Crown case is that Fattal, along with other persons acting in a joint criminal enterprise, supplied 9,000 tablets. There’s talk in telephone calls to ecstasy, using various names for it, small ones, little ones, yellow, blue hearts. It’s all entirely relevant and probative as to the supply that ultimately took place on 10th and 11th in which the Crown case is this man was involved.” [T 207]

14 The discharge application was refused.

15 On the following day, the sixth day of the trial, counsel then appearing for the appellant raised again the nature of the supply upon which the Crown case was based. The transcript, as it stands, contains episodes of cross-talking and it is, I think, best to quote the material rather than to attempt a paraphrase of it:

“COUNSEL: There are two other matters your Honour. The first is if I just could inquire of the Crown through your Honour, does the Crown rely on the definition of supply in the Drug Misuse and Trafficking Act in terms of this charge?
HER HONOUR: As I understood it’s an actual supply, isn’t it? I don’t know, it’s a matter that the Crown can indicate.
CROWN PROSECUTOR: The Crown case is that a supply took place of 9,000 odd tablets, that is the tablets ---
HER HONOUR: Actual supply.
CROWN PROSECUTOR: In the possession of ultimately of Forrest and of the accused and that supply was carried out by a number of persons acting jointly together, in a joint criminal enterprise. One of those persons was the accused. So there was an actual supply to supply in effect a syndicate or a group of persons in Sydney including the accused to ---
HER HONOUR: You’re not relying on an extended meaning of the word, supply?
CROWN PROSECUTOR: Well not in the sense that’s just raised here, I opened on the extent of – the full definition.
HER HONOUR: I know you gave a full definition, I wasn’t sure why you did that.
CROWN PROSECUTOR: It relies upon – the Crown case is that the supply was by various persons, essentially to persons in Queensland and Forrest was an agent in effect of the Queensland people.
HER HONOUR: Yes, this man was part of the joint criminal enterprise to supply the drug and the drug was supplied.
CROWN PROSECUTOR: It was supplied and the case against the accused is the accused was part of the group, a person in Sydney carrying out that supply to Nabhan and others.
HER HONOUR: That’s what I understood the case to be, but as I say I was not sure why you opened on the extended supply when it seemed from the evidence to be an actual supply.
CROWN PROSECUTOR: Yes.
HER HONOUR: We’re not talking about deeming provisions or anything of that nature at all.
CROWN PROSECUTOR: It’s not based on possession by this accused of a particular amount -
HER HONOUR: It’s simply based on an actual supply ---
CROWN PROSECUTOR: And that this accused was ---
HER HONOUR: --- and that the ---
CROWN PROSECUTOR: --- part of a joint criminal enterprise to actually supply ---
HER HONOUR: It was a joint criminal enterprise, yes I understand.
CROWN PROSECUTOR: --- 9,033 tablets.
HER HONOUR: So the jury really have to be satisfied beyond reasonable doubt that this man was part of the enterprise.
CROWN PROSECUTOR: Yes, on the deposition of a joint criminal enterprise as in Tangy’s case the way it’s set out there which I briefly opened on. I take that to be a fair statement of the law as to joint criminal enterprise.
HER HONOUR: Yes, yes.
CROWN PROSECUTOR: The Crown will be saying that this man was essentially, on the evidence of the telephone intercepts, was accompanying Forrest back up to Brisbane or that was the intention because some of the drugs were on credit and that he’d be bringing back the balance of the money owing. It’s not suggested that he ---
HER HONOUR: Some of the drugs were on credit well that comes …. (not transcribable) ….. clear.
CROWN PROSECUTOR: And the interpretation of the phone calls which it’s open to the jury to make is that 9,033 tablets were supplied, that’s the reference to nine. Five, 5,000 said to be on credit. Some moneys were paid by Forrest, other moneys were outstanding and the jury would be open to infer from all the evidence of the phone calls and everything else that this man was not one of the organisers, the evidence would point to Elabed and/or Dirani being the main players, but this man was to accompany Forrest and the drugs back up to Brisbane, bring back the balance of the money owing and they could also infer of course that the 156 tablets that he took was a payment for that. That’s open to ---
HER HONOUR: In any event ---
CROWN PROSECUTOR: But there’s an actual supply.
HER HONOUR: --- the main question is that there was an actual supply and you allege that the ---
CROWN PROSECUTOR: This accused was a party to ---
HER HONOUR: --- accused was part of a drug criminal enterprise in that supply.
CROWN PROSECUTOR: Yes.
HER HONOUR: Very well.
CROWN PROSECUTOR: That’s in essence the Crown case.” [T 270 - 272]

16 Her Honour then asked defence counsel whether that exposition answered his query, and counsel replied, simply, that it did.

17 There ensued some further exchanges between her Honour and defence counsel about the desirability of her Honour’s giving the jury, in advance of the closing addresses, some precise direction that the Crown case was one of actual, and not deemed, supply. Her Honour took the view that appropriate directions in the summing up would do what was fairly required. Nothing more need be said now upon that topic.

18 That discussion led, however, into a further defence application. The relevant record reads as follows:

“COUNSEL: Yes there is one other matter your Honour. That is, and I might I have better luck with this one, the other matter is the Crown alleges a joint criminal enterprise. Could I enquire of the Crown through your Honour who is in the joint criminal enterprise?
CROWN PROSECUTOR: There were a number of persons, this man, Elabed, Dirani, Nicolovski, I suppose Forrest could be said to be a part of it and also I suppose Nabhan and Kostopoulos, I think that would about cover it.
COUNSEL: That is Elabed, Dirani, Nicolovski, Forrest, Nabhan and Kostopoulos ---
HER HONOUR: And your client.
COUNSEL: Yes and Mr. Fattal. I thank the Crown. Seven people.” [T 275-276]

19 On the following day, and immediately before the Crown’s final address, defence counsel asked again for some pre-address directions about the need for the jury to be aware that the only Crown case was one of actual supply. The ensuing discussion did not add anything of substance to the previous discussions about that topic. There was no further application in connection with the topic of the joint criminal enterprise that was fundamental to the Crown case.

20 The Crown’s final address was then made. At several points during its course the learned Crown Prosecutor explained to the jury the nature and the scope of the alleged joint criminal enterprise upon which the Crown case rested. The following submissions, made during the opening sections of the address, are a representative example:

“The Crown case is that there was a joint criminal enterprise involving a number of people, including the accused, to supply what turned out to be a total of 9,033 tablets, weighing in excess of three kilograms, which contained MDMA. Now I anticipate her Honour will give you directions about what a joint criminal enterprise is but in brief I will say something about that.”

21 The Crown Prosecutor developed those submissions so as to propound for the jury’s consideration that Forrest was, in essence, a courier between the selling principals in Sydney and the buying principals in Queensland; that the cash which Forrest handed over in Sydney was sufficient to pay for some part only of the total consignment of 9,000-odd tablets; and that the jury might find:

“…………… that the accused has clearly been, or the intention is the accused is to accompany Forrest back to Queensland. He’s booked the flight that night, on the 10th. He’s at the airport about to board the plane the next morning when arrested. The intention is that he’s to accompany Forrest back to Queensland. Forrest with the 9,000 odd tablets. And the accused is to bring back the money outstanding back to the main players Elabed and Dirani and you may well draw an inference that the 150 or 156 tablets which the accused took from the main lot in the hotel room that night, may well have been a payment of some sort by Elabed to Forrest for his part in this enterprise. We know that these tablets are worth you might think, from the evidence. There’s talk of them being worth $17 or $18 each in bulk and Forrest told you that at the point of sale they’re apparently worth some, according to him, some $40 each. So obviously 156 of those tablets has some considerable value.”

22 The closing defence address was then presented. Its basic thrust was that the evidence disclosed the existence of at least two discrete joint criminal enterprises. One involved the supply of the 9,000-odd tablets to Forrest at Rockdale; and there ought to be a reasonable doubt about any culpable involvement of the appellant in that enterprise. The other involved the taking of possession by the appellant of 150-odd tablets in the airport hotel room; and that enterprise was no part of the enterprise forming the offence now charged against the appellant.

23 The learned presiding Judge then summed up. The summing up commenced late on a particular afternoon, and there is no present controversy about as much of the summing up as was given prior to the normal daily adjournment.

24 On the following morning the appellant’s then counsel handed her Honour a document which he described as “……. some brief facts which, in my submission, constitute the defence case that I would be asking your Honour to put to the jury”. This touched off some exchanges between her Honour and counsel. The following excerpts are now relevant:

“COUNSEL: In my submission, your Honour, the issue of possession is a crucial aspect of the case.
HER HONOUR: Possession is not the – the Crown is not relying on possession for the basis of supply. The Crown is relying on supply as in actual supply, actually handing over the tablets. And that was as a consequence of an enterprise that they were all involved in to do just that so it could be taken up to Brisbane and disseminated in Queensland.
COUNSEL; Your Honour, I ---
HER HONOUR: It is not a matter of possession whether he had any control over any part of it. It’s irrelevant, on the way in which the Crown puts its case.
WEBB: I fully understand what your Honour is saying, nonetheless possession is very important in relation to the defence case, because the defence case is that when the jury come to consider as to whether or not there is a separate criminal enterprise, not being the criminal enterprise in respect of which the accused is charged in this trial, that they would take into account the fact that a smaller batch is sheared away by way of possession from Mr. Forrest who has the bigger batch. Secondly, the issue as to the importance or otherwise of possession is nevertheless an important part of the Crown case, if only because the 9,033 tablets are the tablets in total in the possession of Mr. Forrest and Mr. Fattal on 11 August 2002.
HER HONOUR: They’re not in joint possession. There’s no suggestion of joint possession.
COUNSEL: So in my submission the issue of Mr. Forrest being divested deliberately by way of the counting out in relation to the 150 is an important part of the defence case, because it goes to the inference which is crucial to the defence that the joint criminal enterprise in relation to which the accused is guilty was a joint criminal enterprise in respect of 156 pills.” [SU 14-15]

25 Almost as soon as the summing up had resumed, her Honour gave the jury these directions:

“In this case, what the Crown must prove beyond reasonable doubt is this, that first, the first element, that on 10 August 2002 at Rockdale, secondly that the accused, third supplied, fourth a prohibited drug, being the 3,4 methylenedioxymethylamphetamine, and fifth in a quantity not less than the large commercial quantity. Those are the elements which must be proved and proved beyond reasonable doubt.
In this case, the Crown does not allege that the accused himself physically handed over the drugs. The Crown relies on what is called the doctrine of joint criminal enterprise, and I will come to that shortly, what that means.
But I just want to deal with the elements which go to make up this charge which must be proved beyond reasonable doubt. That is, that on that date at Rockdale, the accused supplied a prohibited drug, being this drug that is set out in the indictment. And that was in a quantity not less than the large commercial quantity.” [SU 17-18

26 Mere paragraphs later her Honour directed the jury:

“As to the date and place, there does not seem to be any challenge either, that a supply of that particular drug in that particular amount was handed over at the house at Rockdale on that evening of 10 August 2002. But what the Crown must prove beyond reasonable doubt is that the accused supplied that substance.” [SU 19]

27 Shortly thereafter her Honour gave the jury directions upon the legal doctrine of joint common enterprise. The general directions thus given are not now controversial. During the course of these directions her Honour directed the jury:

“Here the Crown says there was a joint criminal enterprise involving the accused, the witness Brad Forrest and the other people that you’ve heard mentioned, that is the man Elabed, the man Dirani, the man Goran, Jim Nabhan in Queensland, and the man Chris Kostopolous also in Queensland. And the joint criminal enterprise which the Crown alleges is the supply of prohibited drugs in Sydney to Forrest so that he could courier those drugs back to Queensland for dissemination in Queensland. And the Crown says that the accused was part and parcel of this joint criminal enterprise. [SU 21]

28 And shortly thereafter:

“And the Crown says, taking that into account, the evidence being given by Forrest, and taking into account the evidence that you would have regard to as to the telephone intercepts, you would be satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise, that is to supply the Queensland people with these drugs. They were to be handed to the man Forrest who was to courier them to Queensland. And he was to accompany Mr. Forrest.
The Crown says that the only inference that could be drawn, the reason why he was accompanying Forrest was to obtain more money because a number, 4,000 to 5,000, of these tablets had been provided, supplied on credit, And the reason he was accompanying this man was not only as a participant in this enterprise, but also to make sure that the money was obtained and brought back to Sydney to what has been referred to, I think, by counsel as the Sydney syndicate.” [SU 23-24]

29 And almost immediately thereafter:

“A lot has been said about possession and joint possession of drugs. What the issue is here, ladies and gentlemen, is actual supply. Supply at law in drug matters has an extended meaning, and I think the Crown referred in his opening to what it can mean. Well you should put that out of your mind because what is the supply here? It is actual physical handing over of those tablets. It is not having it simply in the possession for the purposes of supplying it to someone. And as I said, there has been some reference in the address to you by …..[counsel]…..about possessing drugs.
The Crown case is not that. The Crown case is that Mr. Forrest was physically supplied with these tablets, that it was a joint criminal enterprise for that to be done, so that the drugs could be sent to Queensland, and that some of those tablets were provided on credit, that Mr. Fattal, the accused, not only was present at the time that the tablets were handed over, I think I might have said he was there at the time that the money was handed over. I think I may be wrong about that, but I will go to the evidence shortly. But I just want you to be quite clear that that is what the Crown case is. And if you are not satisfied beyond reasonable doubt that the accused was part of this criminal enterprise to supply Mr. Forrest with the 9,000 odd tablets you obviously cannot convict him. Because that is what the Crown relies on.” [SU 24-25]

30 Shortly thereafter her Honour took a brief adjournment, and in the absence of the jury the appellant’s then counsel made a number of submissions. The following exchanges, in particular, are now relevant:

“COUNSEL: The other matter your Honour is that your Honour has indicated to the jury that the possession is not important in a way that in my submission the issue of the drugs being separated out from a big batch into a little batch concerning the accused is very much belittled.
HER HONOUR: I have said that it’s not the Crown case that they were in possession or even in joint possession, to which you’ve referred. The Crown case that this was an actual supply and it was handed over, actually handed over. It’s not a matter of big batches or little batches. That’s not the Crown case. It might be yours, it’s not the Crown case. I’m referring to the Crown case. Goodness me. Go on.
COUNSEL: In my submission your Honour the big batch was never handed over to Mr. Fattal.
HER HONOUR: It doesn’t have to be handed over ---
COUNSEL: I understand.
HER HONOUR: Don’t you understand that? The Crown case is that he was involved in a joint criminal enterprise. He doesn’t have to touch it. He doesn’t have to even be present as long as he’s involved in a way in which the Crown can point to.
COUNSEL: I understand that your Honour. ……………” [SU 41-42]

31 And a little later:

“However the Crown says that the Crown case is that the accused was a participant in the joint criminal enterprise to supply this drug. That it was to be supplied to the Queensland people and that it was to be passed to Mr. Forrest by the men in Sydney for transportation and courier up to Queensland. The Crown says that the accused was part of that joint criminal enterprise. He may have played a lesser role than the men Goran, Elabed and Dirani, but he was involved and he knew what was going on. He was present at the time in the house when the bag was handed over, when Dirani told Forrest that there were nine there, and Forrest saying, he understood that to mean 9,000 tablets. Elabed had said to him that the accused will be travelling with him to Queensland the following day; that he would be coming to the hotel room. He was taken to that hotel by Elabed, who also told him not to tell the number of that room to anyone else. The accused arrived not very long after that at the hotel and came in and he stayed the night. He said shortly after he arrived, “Ken told me to take 150 of those”. With that Mr. Forrest went to the bag, took out the plastic bag and one of the bags containing a number of these tablets. You have, of course, the photos of how those bags looked. The accused proceeded to count out the number, which turned out to be 156 of these tablets.
The Crown says that it is quite apparent that the accused’s knowledge – he knew of the drug, he knew it had been supplied, and he knew what was contained therein. The Crown says that the inference could be open to you that it was payment for the accused going to Queensland. That is a matter entirely for you, but the Crown says it is quite apparent on the evidence – if you have regard to the intercepted telephone calls that an amount of four or five thousand of these tablets have been given on credit and that only a certain amount of money had been handed over by Forrest, some $67,000 which did not cover the cost of these 9,000 odd tablets at $18 a pop and that the accused was accompanying Mr. Forrest to Queensland to obtain that money.” [SU 52-53]

32 The written submissions of the appellant refer to various of the excerpts which I have quoted from the summing up, and make the following particular submissions:

“3.11 The above directions changed the nature of the joint enterprise to one of either, assisting Forrest in the supply to the Brisbane people, or intending or agreeing to supply the Brisbane syndicate with the drugs for dissemination. That was not the joint enterprise alleged nor the joint enterprise originally put by her Honour. These directions were not benign as there was ample evidence that the appellant was accompanying Forrest to Queensland and that he had taken some pills from the stash of drugs, perhaps on credit for further payment, however this was not the joint enterprise alleged against him and in leaving at least two different “supplies” to the jury the directions have given rise to a latent duplicity which has resulted in an unfairness in this case. The directions confused liability for “an actual supply” with liability for conduct after the supply.
No doubt it was the intention of all involved that after the supply to Forrest was complete the drugs would be couriered to Brisbane. However the supply repeatedly characterised by the Crown was an actual one and it was complete at the time the 9,033 tablets were handed to Forrest. If it was the Crown case that the appellant was criminally liable for his conduct after the handing over of the drugs to Forrest this was a different case than that alleged by the Crown.”

33 In my opinion a fair reading of the whole of the foregoing material does not support Ground 1 as framed. It is, I think, important to keep in mind that there is a distinction between the proposition that a Crown case, not flawed by the “latent duplicity” of which Ground 1 speaks, was transformed by misconceived directions to the jury into a Crown case that was thus flawed; and the propositions that the Crown case was always flawed by “latent duplicity”, and that the directions to the jury correctly summarised the Crown case in fact, but as a matter of law ought never to have left that case to the jury.

34 The focus of appeal Ground 3 is, more or less, to the latter effect; although it might be observed that there never was an application for a directed verdict upon the basis that as a matter of law the whole of the evidence at trial, taken at its highest in favour of the Crown, could not support in law a finding of guilt as precisely charged.

35 The focus of Ground 1 is, when one thinks it through carefully, very narrow. The ground seems to me to be propounding that if one sets side by side, so to speak, the Crown case as actually presented by the Crown to the jury, and the Crown case as actually left to the jury by her Honour, then the latter case alters the cast of the former case, and does so in a fashion that manifests error of law.

36 In my opinion there is no such contrast or contradiction apparent from a fair reading overall of what was actually said, both by the Crown Prosecutor and by her Honour. I am strengthened in that view by the absence of any objection or application by the appellant’s trial counsel, being an objection or application appropriate to such an apparent contrast or contradiction as is now suggested.

37 I would not uphold Ground 1.

Appeal Ground 2

38 The ground is:

“The trial Judge erred in admitting the evidence of representations of others as proof of the appellant’s involvement in the joint criminal enterprise.”

39 The submissions put for the appellant concentrate upon section 87(1)(c) of the Evidence Act 1995 (NSW), and upon the decision of the High Court of Australia in Tripodi v The Queen (1961) 104 CLR 1, and Ahern v The Queen (1988) 165 CLR 87. Tripodi dealt with a charge of a substantive offence. Ahern dealt with a charge of conspiracy.

40 I prefer to concentrate on two practical questions which must have been obvious to any reasonably attentive juror: first, what was the appellant doing at the Rockdale address when the 9,000-odd tablets were handed over to Forrest in his presence?; and secondly, what explained the appellant’s having linked up on that very night with Forrest for the express purpose of accompanying Forrest to Queensland?

41 The Crown was entitled to raise those questions; and was entitled to essay answers to the questions by adducing evidence: that beyond peradventure there was afoot at all material times a joint criminal enterprise to supply 9,000-odd ecstasy tablets, the selling principals being based in Sydney and the buying principals being based in Queensland; that negotiations between the two groups of principals had resulted in an arrangement that as part of the joint criminal enterprise Forrest would travel to Sydney; that he would be supplied there by the selling principals with the 9,000-odd tablets; that he would be so supplied as courier/agent of the Queensland buying principals to whom he would duly deliver the tablets; that he would pay a substantial part, but not the whole, of the agreed purchase price; and that the appellant, as representative of the Sydney selling principals would accompany Forrest back to Queensland, would there collect the balance of the purchase price, and would bring that balance safely back to Sydney and there hand it over to the selling principals.

42 Evidence of the telephone conversations to which Ground 2 relates was, in my opinion, significantly probative of just such arrangements. It is, of course, the fact that the appellant was not a party to any of the conversations. There was, however, undisputed evidence in the Crown case that put the appellant at the actual handing over of the tablets to Forrest; and that put the appellant, very shortly thereafter, in a hotel room as a joint occupant overnight with Forrest of the room in anticipation of their joint flying to Queensland on the following day. Had the appellant not been present at Rockdale at the time of the supply to Forrest as agent for the Queensland buyers; and had there been no subsequent attempt at joint travel by him with Forrest to Queensland, then, absent any other evidence of things actually said or done by the appellant himself, the evidence of the contents of the conversations would have been admissible, in my opinion, in order to prove the relevant joint criminal enterprise, and in order to prove that the principals in the enterprise, who were conversing, were intending to make use of the appellant. Without more, the contents of the conversations could not have established that in fact the appellant participated to the intended extent in the particular joint criminal enterprise. That potential gap was filled, - or more precisely it was in my opinion open to the jury to find that it had been filled, - by the evidence, essentially undisputed, of relevant prior associations; of relevant presence; and of relevant subsequent conduct; all of which were consistent, to say the least, with participation as alleged in the supply charged. It is important to keep in mind in that connection that the supply charged was never presented as a supply to Forrest as a principal acting only on his own account. The supply charged was consistently presented as having been a supply to Forrest as courier/agent for the Queensland principals.

43 The correctly principled adjudication of Ground 2 does not depend, in my opinion, upon artificial technicalities. It depends upon the drawing of common sense inferences of fact in the answering of the two practical questions hereinbefore suggested.

44 I would not uphold Ground 2.

Appeal Ground 3

45 The Ground is”

“The verdict is unreasonable.”

46 The relevant question is not in doubt. It is whether upon the whole of the evidence at trial it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty as charged: M v The Queen (1994) 181 CLR 487; recently reaffirmed in MFA v The Queen (2002) 213 CLR 606.

47 I can see no convincing argument for the proposition that it was not so open to the jury. A clear understanding of what was afoot between the Sydney sellers and the Queensland buyers provides, in my opinion, a context in which the presence of the appellant at the handing over of the drugs to Forrest, and the appellant’s subsequent acts in conjunction with Forrest, are not reasonably explicable as having been either unfortunate coincidences; or facts and circumstances unconnected with the supply actually charged.

48 In my opinion the Crown case, reasonably assessed overall was a convincing one.

49 I would not uphold Ground 3.

Conclusion

50 In my opinion the appeal against conviction should be dismissed.

51 HISLOP J: I agree with Sully J.

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