Karam v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0247

ROB KARAM

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2015
DATE OF JUDGMENT:	31 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 50
JUDGMENT APPEALED FROM:	The Queen v Karam (Unreported Supreme Court of Victoria, King J, 24 May 2012 (date of conviction), 30 April 2013 (date of sentence))

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CRIMINAL LAW – Conviction – Conspiracy to possess 4.4 tonnes or more than 15 million tablets containing MDMA (ecstasy) imported from Europe in 2007 but seized before the conspirators could take possession of them – Wholesale value of tablets about $122 million – Applicant’s role to facilitate removal of container within which drugs concealed from docks – Interception by AFP of telephone conversation between co-conspirator and third party – Conversation not in furtherance of conspiracy and accordingly not admissible against applicant – Applicant sought to rely upon isolated passages in intercepted communication as supposedly exculpatory – Issue as to whether statements made were in fact exculpatory – Ruling by trial judge that evidence hearsay and inadmissible – Whether trial judge erred – No error established.

CRIMINAL LAW – Conviction – Trial judge permitted Crown to adduce evidence concerning applicant’s daily participation in legal proceedings throughout major part of the alleged conspiracy period – Whether evidence should have been excluded under s 137 of Evidence Act 2008 – Probative value of evidence not outweighed by any unfair prejudice to applicant.

CRIMINAL LAW – Conviction – Whether misdirection as to elements of conspiracy – No error established.

CRIMINAL LAW – Sentence – Applicant sentenced to 19 years’ imprisonment with non-parole period of 15 years – Whether trial judge erred in failing to afford mitigatory weight to applicant’s admissions and contribution to efficient conduct of trial – Whether sentence manifestly excessive – Whether undue disparity between applicant’s sentence and sentence imposed upon co-accused – No error established.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C B Boyce SC with Dr M Fitzgerald	Dr Martine Marich & Associates
For the Crown	Mr B M Young QC	Commonwealth Director of Public Prosecutions

WEINBERG JA
PRIEST JA
BEACH JA:

Conviction, sentence and grounds of appeal

In May 2012, the applicant, who was tried together with John Higgs (‘Higgs’), Salvatore Agresta (‘Agresta’) and Pasquale Sergi (‘Sergi’), was convicted by a jury in the Supreme Court of conspiring with his co-accused, and with Pasquale Barbaro (‘Barbaro’), Saverio Zirilli (‘Zirilli’), Carmelo Falanga (‘Falanga’), Jan Visser (‘Visser’) and others, to possess an unlawfully imported border controlled drug, MDMA, in a commercial quantity.

On 30 April 2013, the applicant was sentenced to be imprisoned for 19 years, upon which a non-parole period of 15 years was fixed.

The applicant sought leave to appeal against both his conviction and sentence.

Ultimately, the applicant agitated three grounds as to conviction,[1] as follows:

1. The learned trial judge erred in law by refusing to admit, in the case of the applicant, evidence of a representation made by the co-accused Higgs to another person, which was admitted as evidence in the prosecution case against Higgs, thereby giving rise to a substantial miscarriage of justice.
2.The learned trial judge erred in admitting evidence of the applicant’s participation in legal proceedings during the conspiracy period, when the prejudicial effect outweighed the probative value of that evidence, thereby giving rise to a substantial miscarriage of justice.
4.The learned trial judge erred in law by directing the jury that one of the elements of the offence charged was that he had agreed ‘to obtain either for himself, or to assist or aid another to obtain’ possession of a border-controlled drug.

[1]Three grounds — grounds 3, 5 and 6 — were abandoned.

With respect to sentence, the applicant relied on three grounds:

1.The learned sentencing judge erred by failing to afford any mitigatory weight to the applicant’s facilitation of the trial by making extensive admissions.
2.The learned sentencing judge erred in her sentencing discretion by imposing a sentence which in all of the circumstances was manifestly excessive, having regard to the applicant’s personal circumstances, and lack of relevant previous convictions.
3.The learned sentencing judge erred in her sentencing discretion by imposing a sentence which in all of the circumstances was manifestly disparate to the sentence imposed upon the co-accused Salvatore Agresta.

For the reasons that follow, we would refuse both applications.

The offending

The applicant and his co-accused were convicted of conspiring to possess 4.4 tonnes of tablets containing a drug generally referred to as MDMA, and popularly known as ‘ecstasy’. The drugs were imported into Melbourne, concealed in a shipment of tinned tomatoes, aboard the ‘MV Monica’. They were discovered by Australian Customs when the shipment was selected for x-ray examination. Over 15 million tablets were seized, which contained more than 1.4 tonnes of pure MDMA, approximately 2900 times the prescribed commercial quantity. The wholesale price of the shipment, based on a sale of each tablet for $7, was estimated to be approximately $122 million.

The circumstances of the offending may be summarised as follows.

On 28 June 2007, the MV Monica arrived in Melbourne. The ship had been loaded in Naples, Italy, in late May 2007. It contained in excess of 3000 large cans labelled ‘Peeled Tomatoes’.

The consignment was addressed to a company named Transglobal Food Brokers (‘Transglobal’). Transglobal, a legitimate company which was not involved in the conspiracy, was unaware of any shipment coming into Australia at that time, and was not in the business of importing tomatoes from Italy. The contact details that had been provided for Transglobal as consignee were false, and entirely unrelated to the company. The bill of lading specified that F.J. Tytherleigh Logistics Australia (‘FJTL’) was the party to be notified upon landing. Prior to the arrival of the container, FJTL contacted Transglobal, who disavowed any involvement in, or knowledge of, the shipment.

The Crown case was that the conspirators planned to intercept and take possession of the shipment prior to it arriving at Transglobal, and without Transglobal ever becoming aware of its existence. The plan was that the container and its contents would be diverted to a person associated with the conspirators, whose contact details had been provided. When safe, the container would be removed from the dock, and its contents unloaded, stored and distributed.

Upon its arrival in Melbourne, the container was, as we have mentioned, selected for examination by Australian Customs. It was transported to a container examination facility in Port Melbourne, whereupon customs officers unpacked the container, and began to x-ray its contents.

Image anomalies within the boxes were first noticed at around 8 pm. A more detailed examination was then conducted by Australian Federal Police (‘AFP’). Two tins from one of the boxes was opened. One of those was found to contain gravel, whereas the other was found to contain a number of white tablets with a ‘kangaroo’ logo impressed upon them. The four remaining tins in the box were then opened. One contained rocks, and the other three contained tablets, this time with a ‘crown’ symbol impressed upon them.[2] Officials proceeded to unpack the remaining contents of the container. Each of the tins containing the MDMA pills were emptied, and their contents replaced with an inert substance. The tins were then re-packed into the container.
[2]The rocks in the tins were said to be an attempt to ensure that the weight of the container was consistent with the weight of supposed goods on the bill of lading.

The number of tablets ultimately seized was 15,193,798. Subsequent testing revealed that they contained a total of 1,468,755.3 grams of pure MDMA, each individual tablet being of approximately 33.2 per cent purity. As we have mentioned, the wholesale value of the drugs, based on a price of $7 per tablet, was approximately $122 million.

The Crown case was that, between 13 June 2007 and 3 October 2007, the applicant and his co-accused engaged in various activities in furtherance of a conspiracy to obtain possession of the contents of the shipment. The evidence led at trial in relation to these activities was detailed and complex. The key events, however, may be broadly summarised as follows.

On 26 June 2007, two days prior to the arrival of the MV Monica, Barbaro and his first cousin, Zirilli, came to Melbourne from their home town, Griffith. Falanga arrived in Melbourne that same day from Adelaide, and Higgs flew in from Sydney. The applicant resided in Melbourne at all relevant times.

During July 2007, Sergi, together with some other members of the conspiracy, stayed at the Pacific International Suites (‘the Pacific International’), a hotel located in the Melbourne CBD. Whilst staying there, they met on numerous occasions with Barbaro, Zirilli, Falanga and Visser.

Communications between the conspirators, including text messages and phone calls, were intercepted and recorded by the AFP. From at least 2 July 2007, the AFP also had access to listening devices which had been installed in the suite occupied by the applicant’s co-conspirators. The intercepted communications revealed that the conspirators were aware that a shipment was due to arrive, and were presuming that the container and its contents would be available for collection in due course. The recordings of the communications were played to the jury at trial. They were also shown the relevant text messages.

The Crown case was that the applicant’s role was to provide essential information to the other conspirators, via Higgs, regarding the passage of the shipment through the docks. The applicant had previously worked in customs clearance and freight forwarding. His role in the conspiracy was described by the Crown as being akin to that of a ‘consultant’. That is, utilising his contacts and expertise in the freight industry, the applicant was to provide information to his co-conspirators which would enable them to track the passage of the shipment through the docks, and ultimately obtain possession of it.

Throughout much of June and early July 2007, a pivotal period in the conspiracy, the applicant was standing trial in the County Court at Melbourne on unrelated charges concerning the importation of 1.2 tonnes of MDMA. He was acquitted of those charges on 10 July 2007.

The applicant had been granted bail in respect of the County Court charges. However, during the period of the trial, he was required to personally attend in court between 10.30am to 1.00pm, and between 2.15pm to 4.15pm, Monday to Friday.

The County Court is located a short distance from the Pacific International. The prosecution argued that this was one of the reasons the applicant’s co-conspirators chose to stay at that hotel. In other words, the hotel was chosen so as to enable meetings and discussions to take place with the applicant during the breaks between his court commitments. Although not many meetings of that nature occurred, there were some meetings with the applicant and Higgs at a restaurant near the court. Falanga also attended one such lunchtime meeting.

A number of text messages and phone calls intercepted by the AFP contained references to the applicant’s appearance in ‘court’. The prosecution relied on these references as demonstrating that the applicant was, indeed, the person being discussed in those communications. The prosecution also relied on the evidence in relation to the applicant’s court commitments as explanatory of his absence during a number of the discussions and meetings which took place between the conspirators during that period.

In early July 2007, arrangements were made for persons associated with the conspirators to pick up the container from the docks, and deliver it to another place. Those persons were said by the prosecution to be a Mr Frank Agostino and his son, who were linked to the conspirators through Agresta.

At this point, the conspirators were optimistic that they would be able to successfully take possession of the drugs. They remained optimistic until about 4 July 2007, when a meeting took place between the applicant, Barbaro, Zirilli, Falanga, and Higgs. By the time of that meeting, it was clear that several of the conspirators had come to the view that the container may have been seized by police. It was accepted by Barbaro that if the container had been seized, he and Falanga had to cover the loss that had been incurred (which was thought to be around €6 million, or approximately AUD10 million). Zirilli had also said at the meeting that they were all better off losing the drugs, rather than trying to go through with the plan, only to end up in gaol.

Notwithstanding the views expressed at the 4 July meeting, in the following days, attempts continued to be made to obtain possession of the shipment. Several further meetings between the conspirators took place in that period.

On 11 July 2007, the applicant attended a meeting with Barbaro at a café. After leaving the meeting, Barbaro visited Agresta at his home. He then immediately sent a text message to Falanga which read ‘You there. I just finished and they tell me that she died yesterday’. This was accepted by the trial judge as meaning that the conspirators had discovered that the container had been seized by the authorities, or had in some other way become dangerous, and was no longer capable of being safely removed from the docks. This information was then generally made known to those involved in the conspiracy.

On 5 September 2007, the applicant drove with Barbaro, Zirilli and a Mr Graham Potter to Newmarket. Two calls were made from that location to FJTL (the freight forwarding company specified on the bill of lading) seeking information in relation to the shipment.

The conspirators were subsequently arrested by police.

Conviction ground 1 — Refusal of trial judge to permit reliance upon representation made on 25 June 2007 by Higgs to Burns

At 9.46am, on 25 June 2007, the accused Higgs was telephoned by William Burns, an associate of Falanga, and their conversation was recorded (‘the Higgs–Burns conversation’). The discussion took place two days before the container arrived in Melbourne on board the MV Monica, and was originally sought to be relied upon by the Crown as evidence in furtherance of the conspiracy alleged. Ultimately, as will be seen, that course was abandoned. Nonetheless, the evidence went in as background proof of the conspiracy itself, and also as direct evidence, by way of admission, against Higgs. The issue raised by this ground is whether, on the assumption that what Higgs said to Burns might conceivably be thought to be exculpatory of the applicant, the trial judge erred in preventing the applicant’s counsel from placing such reliance upon that evidence.

The transcript of the telephone conversation runs for five pages. It begins innocuously enough, with a discussion regarding Higgs’ sexual prowess. At page 2, Burns informs Higgs that he is telephoning from Adelaide, and proposing to ‘pop over’ to Melbourne and catch up with Higgs the following night. The transcript then reads as follows:

Higgs:Oh well he he [sic] needs an answer he needs an answer desperately

Burns:           Oh righto well well [sic] um what was the re-result
Higgs:            Well I don’t know he needs an answer mate I’ve got no idea
Burns:Well what you were sort of offered sort of two and I didn’t know whether
Higgs:They said no fucking see you later forget about it
Burns:Well what what [sic] did they finally come up to
Higgs:I don’t know no no no they just stuck fucking fast to what they said
Burns:Really
Higgs:Yeah yep they said no fuck it anyway I can’t can’t [sic] speak like this

The conversation continued for several minutes. Ultimately, the discussion returned to the matter set out above, and the transcript reads as follows:

Higgs:Right so yeah well that’s what they said no no fuck that they said no we can’t we can’t do it
Burns:That’s what they’re holding they’re holding their line on that one
Higgs:Well that’s what they said mate that’s what they said
Burns:Okay well I’ll just have to I’ll get back to ya
Higgs:Okay get back to me let me know

This conversation, between Higgs, who was closely associated with the applicant, and Burns, who was said to be a co-conspirator, but was never ultimately prosecuted, and who has since died, was the subject of considerable debate during the course of the trial.

The applicant’s counsel understood full well that the Crown sought to rely upon the Higgs–Burns conversation (to which, of course, his client was not a party) as evidence against the applicant under the co-conspirators rule.[3] Plainly, in his mind, Higgs’ statement to Burns that the person to whom he referred as ‘he’ needing ‘an answer’ was a reference to Barbaro. In other words, it was Barbaro who, on that analysis, needed an answer from the applicant. On the other hand, the applicant’s counsel understood Higgs’ subsequent comment to Burns ‘[t]hey said no fucking see you later forget about it’ to be a reference to what the applicant (and a man named Michel Baini, who also featured in the alleged conspiracy as a ‘back-up’ to the applicant) had supposedly told Higgs.
[3]Under this rule, the statements of one co-conspirator are admissible in evidence against another provided that there is other reasonable evidence of the participation in the conspiracy of the latter. This is an exception to the general rule that the statements of one accused, made in the absence of another, cannot be admitted against that other. See generally Ahern v The Queen (1988) 165 CLR 87.

On that interpretation, the Higgs–Burns conversation supported the applicant’s defence that he at all times considered the plan to be hopeless because the container could never be removed from the wharf without the appropriate documentation.

It followed that the applicant never, at any stage, proffered any advice to Barbaro as to how what he knew to be impossible could be achieved. He always made it clear that what the central figures in the conspiracy were seeking to do could not be done.

It is plain from the applicant’s counsel’s cross-examination of Federal Agent David Herman that this was indeed his understanding of the Higgs–Burns conversation. He cross-examined Mr Herman at some length regarding this conversation, and its significance. The transcript reads as follows:

Counsel: … May I take you to p.51?
Herman: Yes.
Counsel:This is Mr Burns ringing Mr Higgs and in the middle of the page Mr Burns says, ‘Well what you were sort of offered sort of two and I didn’t know whether’ and Mr Higgs says, ‘They said no fucking see you later forget about it’. Do you know to whom ‘they’ refer?
Herman:I don’t know, no.
Counsel:I want to suggest to you that Mr Barbaro and Mr Zirilli, and for that matter presumably Mr Falanga and Mr Zirilli, were told that it could not be done. That’s my suggestion —
Judge:[Counsel], what does that mean?
Counsel:I’m just putting —
Judge:No, you can’t put something if we don’t know what it means, [Counsel]. What are you talking about?
Counsel:I want to suggest to you that [the applicant] told Barbaro, and others, that what his proposition was could not be achieved. That’s what I want to put to you. Is there anything in these materials, and I’m using this only as an example at the moment, where that advice could be gainsaid, that is —

Judge:No, you can’t ask him that, that’s your argument for the jury. That’s not a question you can ask him.
Counsel:Mr Higgs said, ‘No fucking see you later forget about it’. Do you know to what that refers?
Herman:I can make an inference but I don’t know what it refers to.
Counsel:Can I ask you to go in the same conversation over to 53. Same conversation between Burns and Higgs on the 25th, quarter to 10 in the morning, and Mr Higgs says, ‘Right so yeah well that’s what they said no no fuck that they said no we can’t we can’t do it’. And Mr Burns says, ‘That’s what they’re holding they’re holding their line on that one’. Mr Higgs replies, ‘Well that’s what they said mate that’s what they said’. Do you know to what that refers?
Herman:No, I don’t.[4]

[4]Transcript of Proceedings, R v Karam (Supreme Court of Victoria, King J, 27 February 2012 –1 June 2012) 1337–38 (‘Trial Transcript’).

Clearly, this cross-examination achieved precisely nothing in terms of elucidating the meaning to be attributed to the Higgs–Burns conversation. The trial judge interjected, correctly, that Mr Herman could hardly be asked to express an opinion as to what meaning should be accorded to these words. That ultimately was a matter for submission, and determination by the jury. The applicant’s counsel accepted her Honour’s admonition, observing that the jury was going to be asked to ‘come to an interpretation.’ He then moved to another topic.

What the applicant’s counsel plainly did not appreciate, at the time, was that the Crown had a completely different, and far more sinister, explanation for this conversation. That alternative explanation only emerged with any clarity during the course of oral argument before this Court. The learned prosecutor, who had also appeared at the trial, submitted that, when viewed in context, the references by Higgs to ‘he’ needing ‘an answer’ were not to Barbaro, as the applicant’s counsel contended, but to the applicant himself. In effect, what Higgs was saying was that the applicant had conveyed to him that he wanted to know precisely how much he would receive for his part in the conspiracy.

In the same way, the prosecutor submitted that Higgs’ later reference to what ‘they’ had said should be understood as directed to the main protagonists in the conspiracy, Barbaro, Zirili, and Falanga. According to the prosecutor, what Higgs was saying was that he had been told that these men were not prepared to meet the applicant’s price. The reference to ‘sort of two’ was either a reference to $2 million, or 2 million tablets (which, of course, would be worth many times that amount), and was part of an ongoing negotiation between the applicant, Barbaro, and the others.

Upon a moment’s reflection, the Crown’s analysis can be seen to have been far more plausible than that proffered by the defence. That analysis was one which, had it been pressed by the prosecutor, may well have led her Honour to permit the Higgs–Burns conversation to have gone forward as evidence of the applicant’s participation in the conspiracy. In other words, viewed from the Crown’s perspective, the conversation (to which the applicant was not a party) could nonetheless have been admissible against him because it was, in truth, a conversation in furtherance of the conspiracy.[5]
[5]Ahern v The Queen (1988) 165 CLR 87.

Self-evidently, the Crown’s interpretation of the Higgs–Burns conversation casts a very different light upon the way in which this ground of appeal should be viewed. If, as the Crown submitted, the true interpretation of what was being said was that the applicant was engaged in negotiations for his fee for services to be rendered, there was nothing even remotely exculpatory, so far as he was concerned, in what Higgs said to Burns.

The difficulty in advancing that argument, from the Crown’s point of view, was that her Honour had already ruled, at an earlier stage, that the Higgs–Burns conversation was not in furtherance of the conspiracy, and could not therefore be used against the applicant. She did so, in part, on the basis that it was too vague and uncertain in scope and, having occurred on 25 June 2007, several days before the arrival of the MV Monica, could not be regarded as sufficiently temporally linked to the actual conspiracy charged to activate the co-conspirators rule. It should be emphasised in that regard that her Honour’s ruling to that effect was made at the behest of the defence.

It was against this background that the issue giving rise to ground 1 crystallised during the course of the applicant’s counsel’s closing address to the jury. Having expressly conceded throughout the trial, and in his closing address, that Barbaro, Zirilli and Falanga had engaged in a conspiracy to take possession of the drugs within the container, he posed what he described as the ‘central question’ for the jury’s consideration, so far as the applicant was concerned. That was, had the applicant joined in that conspiracy with these men?

The applicant’s counsel reminded the jury that, right from the very outset of the trial, he had submitted to them that their task would involve the interpretation of the intercept material upon which the entire Crown case was based.

The transcript of the relevant part of the applicant’s counsel’s closing address reads as follows:

A central proposition in the case, in the defence case, our case, the one I’m putting to you now, is that [the applicant] told these idiots that what they proposed could not be done and never joined to play some role as a look-out.
Before we look at the evidence, you will recall that I asked Mr Herman if there was any evidence to the contrary to that proposition, namely that he told them that it could not be done. And he said, ‘No, the only evidence is the interpretation or what can be inferred from the whole of the evidence’. And he’s right. But we do know, and you don’t have to look for it, that there's no direct evidence contrary to the evidence that he told them that it couldn’t be done.
Again, before we have a look at the evidence, we should look at three things as to him telling these idiots that it couldn’t be done. One, we have got to look at the parties, [the applicant]. Two, the other side of the party, the idiots, and three, what was their proposal to him, the subject matter of him joining them.[6]

[6]Trial Transcript 2273.

Subsequently, the applicant’s counsel turned his attention to the evidence regarding the Higgs–Burns conversation. The transcript of this part of the address reads as follows:

Now then it starts on 25 June. That’s pretty early. But the Crown has spoken to you about how no questions are asked in all of these communications, there is an understanding between everybody, and that’s described as a substratum, something that has been established beforehand and everybody has an understanding of the substratum. Now we say the substratum in reality can be spelt out at a very early stage when substratums are being spelt out, on 25 June.
The Crown told you not to worry about this section, as if it were not relevant, ‘Don’t worry about it’. Is it any wonder they didn’t want you to look at it, at this part, because the advice, the advice that we submit to you comes from [the applicant] is given loud and clear and through the most eloquent expression by Mr Higgs.
This section was said by the Crown to be ambiguous, difficult to divine — lovely word. Don’t look at it, other than for relationship. Focus on the 27th. On the 25th of the 6th Burns — lovely chap — rings and asks if there’s any information. Now Burns wanted information. I wonder what that’s about? Mr Higgs says to him, ‘No, fuckin’ see you later’. That’s ambiguous. ‘Forget about it’, that’s ambiguous. ‘Just stuck, fuckin’ fast, no fuck it anyway’. Mr Burns says, ‘They’re holding their line’. ‘Holding their line’, that is a line has been established and it’s being held, Not varying from our line’.
Ask the Crown question for [the applicant]: ‘Can you tell us if we can get safe possession of these drugs? No, fuckin’ see you later, forget about it’. That’s ambiguous. Subtle. Can there be any doubt about the advice? Does it permit of ambiguity? … That’s the start of it on the 25th of the 6th.[7]

[7]Ibid 2309–10.

Plainly, the applicant’s counsel was inviting the jury to use these snippets of the conversation between Higgs and Burns as exculpatory of his client, on the basis that the references to ‘they’ were to the applicant and Baini. Moreover, he was suggesting to the jury that the Crown had sought to have them ignore what had been said in the course of that conversation because, inconveniently, it was inconsistent with the Crown theory.

It must be said that, put that way, this was a somewhat disingenuous submission. The prosecutor had sought, from the very outset of the trial, to use the Higgs–Burns conversation as evidence in furtherance of the conspiracy, and therefore as evidence directly admissible against the applicant. The trial judge had acceded to a defence submission that the Crown not be permitted to do so. She had specifically limited the use to which that evidence could be put. She had, effectively, truncated that use such that it could only illuminate the relationships between various parties, and, as far as Higgs was concerned, be treated as an admission in his trial. It was hardly fair, in those circumstances, for the applicant’s counsel to suggest to the jury that the Crown was seeking to mislead them by inviting them to ignore what was said to be potent evidence in favour of the applicant.

On the following morning, before the jury were brought into court, the prosecutor justifiably complained of the manner in which the applicant’s counsel had addressed upon this particular conversation. He pointed out that he had been prevented from relying upon what Higgs and Burns had said to each other, so far as the applicant was concerned.

The prosecutor pointed out that the applicant’s counsel had stood by, silently, when her Honour ruled that the contents of the Higgs–Burns discussion were admissible only against Higgs, and could not be used against any other accused. He submitted that it was wrong to suggest that he had invited the jury to ignore that conversation when considering the applicant’s guilt. Nor had he suggested that it was irrelevant. It was mischievous to argue that he had done so because he was well aware of its exculpatory character so far as the applicant was concerned. The prosecutor further submitted that the interpretation that the applicant’s counsel sought to place upon the conversation involved taking matters out of context, and was incorrect. He also submitted that anything said by Higgs to Burns regarding what the applicant might, theoretically, have told Higgs as to the feasibility of the scheme would be hearsay and inadmissible.

The prosecutor’s submission regarding that last aspect of what the applicant’s counsel was seeking to achieve was, with respect, plainly correct. Inadmissible hearsay remains inadmissible even if, on one view, it might be regarded as exculpatory.[8] So much was determined in Bannon v The Queen,[9] where the High Court reiterated long-established doctrine to the effect that a confession by a third party, which may be viewed as exculpatory, is not admissible as an exception to the hearsay rule.
[8]See R v Hennessey (1978) 68 Cr App R 419, 425, where Lawton LJ said ‘witnesses, whether for the prosecution or the defence, are required to testify what they saw, heard … and not to what they know because of what they have been told.’ See also Sparks v The Queen [1964] AC 964, where an assertion made by a child not competent to be called by a witness, and which was exculpatory of the accused, was excluded.
[9](1995) 185 CLR 1.

The trial judge agreed with the prosecutor, reminding the applicant’s counsel that she had ruled against the Crown’s proposed use of this material as evidence in furtherance of the conspiracy. She admonished counsel, pointing out that, given her ruling, it was quite unfair to attribute to the prosecutor an unwillingness to confront the content of the Higgs–Burns discussion.

The jury were brought back into court. The applicant’s counsel resumed his address. He went immediately to the Higgs–Burns conversation, and told the jury that he was about to take them through it, ‘because this is what we submit to you is the substratum that goes underneath the understanding that follows [the applicant] …’

Obviously annoyed by what she perceived to be a complete disregard of what she had only moments before ruled upon, her Honour, at once, sent the jury out. The transcript then reads as follows:

Judge:[Counsel], I thought we had a discussion about the fact these aren’t acts and declarations in furtherance of the conspiracy. They are not admissible in respect of your client. They are not admissible to be used to determine his participation or otherwise in the conspiracy. That was my ruling about all of the conversations prior —
Counsel:I don’t understand that I argued that.

Judge: To the 27th.
Counsel:Your Honour, I say with respect this is absolutely fundamental.
Judge:I have done a ruling about this. You didn’t say one word about it. You didn’t argue against it. I said to the Crown, because it was argued that all of this were not acts and declarations in furtherance of the conspiracy. I indicated to the Crown that I thought they were straining it and I would exercise my discretion to exclude that as being acts and declarations and the Crown said, ‘Very well, we won’t rely upon it, we won’t go to it’ and that is what I determined.

Counsel: But it is evidence in the case, Your Honour.
Judge:It is evidence in the case but it is not evidence relating to your participation because it is not an act or utterance in furtherance of the conspiracy.
Counsel:But with respect, Your Honour, it reflects upon the very foundation of why we’re not in the conspiracy.
Judge:But you are relying on what some [sic] else says. That you can’t do as to your participation. Unless it is an act or utterance in furtherance of the conspiracy and I have — this is the complaint this morning, did you not understand that, [Counsel]?
Counsel:Your Honour is saying this is hearsay to my client?
Judge:Yes, yes. That was the first point made this morning, that your criticism of the Crown for not addressing, you haven’t heard anything about the 25th, they have abandoned — now that was the complaint this morning, they were abiding by the direction I gave, the ruling that — I didn’t get to the stage of having to make the ruling specifically because I indicated what my view was in light of the submissions made and the Crown said, ‘Very well, we’ll retract and we’ll abide by Your Honour’s indication’. Now, you didn’t argue against that, [Counsel], so I think we all assumed you were in agreement with it.
Counsel:I must say, with respect, Your Honour, I was not a party to any of that, Your Honour will appreciate, that I —
Judge:You were, you were in court.
Counsel:I made no submissions in relation to that, Your Honour, and —
Judge:But if you didn’t agree with it you needed to make submissions against it.
Counsel:Yes, I understand, Your Honour.
Judge:The problem is everyone is taken by surprise. That’s the problem we have now. The Crown have abided by what I said —
Counsel:I am not going to criticise the Crown, Your Honour.
Judge:No, but you already have about that. The problem is it can’t be — I have indicated that yes, in the exercise of my discretion I would have excluded this because I thought it was too tenuous, so the Crown have not been allowed to rely upon it. It can’t be relied upon in reverse is the problem, not for the issue of participation. Do you want to address me about it, do you want to make some submissions?
Counsel:No, no, no.
Judge:[Counsel], I do not wish to ruin what it is you have planned in your final address.
Counsel:It is the underpinning fundamental of the final address, Your Honour.
Judge:[Counsel], it really is important that this is done.
Counsel:If I can draw Your Honour to the words that I was concerned about and they appear —
Judge:Volume 1.
Counsel:At 51, yes, of jury book 1. It starts the page before, Your Honour. The third entry for Mr Higgs says: ‘Well I don’t know he needs an answer mate, I’ve got no idea’. Mr Burns responds: ‘Well, what you sort of offered sort of two, and I didn’t know whether’ and Higgs says: ‘They said no, fucking see you later forget about it. Well what what, did they finally come up to?’ Higgs: ‘I don’t know, no, no, no, no, they just stuck fucking fast to what they said. Really’. Higgs: ‘Yeah, yep, they said no, fuck it, I can’t speak like this’ and that’s a reference to his inability to speak on the phone. There is then a whole lot of attempted confusion at phone and then goes over to 53, the middle of the page, Burns says: ‘Yeah, all right, so, yeah, sweet’ and Burns says: ‘Yeah’. Higgs says: ‘Yeah, well, that’s what they said. No, no, fuck that, they said no, we can’t, we can’t do it’. Burns says: ‘That’s what they’re holding, they’re holding their line on that one. Well that’s what they said, mate, that’s what they said’. We say, with respect, Your Honour, that reflects the very centre of the substratum of the defence case where the advice has already been given, that is, ‘Don’t do it’.
Prosecutor:‘Don’t do it for two.’
Judge:I don’t follow that.
Prosecutor:‘They were sort of offered sort of two’ and Higgs said: ‘No, forget about it’.
Judge:This is the problem, the Crown have not been able to comment upon this at all. This is the point I am making. I directed the Crown not to, they obliged. So I don’t know what we do to cure it, [Counsel].
Counsel:Your Honour, I can prevail upon my learned friend to put it into his case and I can move on, Your Honour.
Judge:But you can’t rely upon it then and this is what you are doing it [sic], you are relying upon it as the underpinning of your case. Now, that’s the problem.
Counsel:If I can go then, Your Honour, to the 29th.[10]

[10]Trial Transcript 2329–32.

Thereafter, Higgs’ counsel indicated to her Honour that he wished to put submissions as to the proper interpretation of the Higgs–Burns conversation in support of what he argued was an exculpatory interpretation of that discussion, so far as his client was concerned. Her Honour made it plain that such an argument was perfectly open to Higgs, given that it was he who had been speaking. She added that she had not ruled against the Crown, when it sought to invoke the co-conspirators rule, as a ‘flight of my own fantasy’, but in response to submissions put on behalf of all accused. Plainly exasperated, she added ‘I just don’t quite understand how we have got to this point’.

That prompted yet another attempt, on the part of the applicant’s counsel, to reopen the matter of the use to which the Higgs–Burns conversation could be put, so far as the applicant was concerned. He reminded her Honour of his cross-examination of Mr Herman, to which we have earlier referred. Self-evidently, that did not advance the position. He then argued that whatever Higgs had said to Burns regarding what the applicant may have told Higgs was not being tendered as proof of the truth of anything thereby asserted, and did not, on that basis, constitute hearsay.

Of course, the distinction between evidence tendered to prove the truth of that which was asserted, and evidence tendered as original evidence, relevant simply because the words were used, is well established.[11] However, that distinction is not always easy to apply, in practice.[12]
[11]At first blush, s 66A of the Evidence Act 2008, which provides that the hearsay rule does not apply to evidence of a previous representation made by a person if that representation was contemporaneous, and concerned, inter alia, his or her state of mind, does away with large swathes of the hearsay rule. However, the section has not been interpreted in that way. It is still necessary, if the section is to be invoked, to establish that the state of mind to which it alludes is itself directly relevant to a fact in issue, and not merely inferentially so. See Papakosmos v The Queen (1999) 196 CLR 297, [58] and R v Hannes (2000) 158 FLR 359, [480].
[12]Subramaniam v Public Prosecutor [1956] 1 WLR 965, 969.

The rule against hearsay applies to all kinds of assertions, whether made orally, in writing, or by conduct.

In this case, the only probative value of assertions such as those that, on one view, Higgs was attributing to the applicant, lay in the truth of those assertions, not in the fact that they were made. Plainly, if he did not hold the belief that the entire scheme was hopeless he would have had no defence. And if, contrary to the Crown’s preferred interpretation of the Higgs–Burns conversation, the assertion in question could, in fact, be attributed to him, his words would be of no utility unless those words could be received as evidence of the truth of that which was asserted. Put another way, the only legitimate use that could be made of the assertions attributed to him by the defence was a testimonial use, namely that the applicant not only believed that the scheme was hopeless, but was also intent upon conveying that assessment to those to whom it mattered. In other words, he was telling Barbaro and the others that the container could not be removed from the docks, and telling them that for that reason, he would not participate in the scheme.

On one view, the assertion attributed by the applicant’s counsel to his client, based upon a particular (and somewhat strained) interpretation of what Higgs said to Burns, might be viewed as an ‘implied’ or ‘unintended’ assertion. That was because the applicant was not saying, in terms, that there was no way that the container could be removed. Rather, that was an implication to be drawn from the words that he actually used, whatever they may have been. At common law, an assertion of that kind would probably have been regarded as falling within the hearsay rule. There was, for a very long time, controversy as to whether the hearsay rule did, in fact, extend to non-assertive statements and conduct of that kind.[13] There is a substantial body of authority, and much scholarly writing dealing with that vexed issue.[14]
[13]See generally Walton v The Queen (1989) 166 CLR 283.
[14]See for example Rupert Cross, ‘The Scope of the Rule against Hearsay’ (1956) 72 Law Quarterly Review 91; Mark Weinberg, ‘Implied Assertions and Scope of the Hearsay Rule’ (1973) 9 Melbourne University Law Review 268; C R Williams, ‘Issues at the Penumbra of Hearsay’ (1987) 11 Adel Law Review 113. The author of Cross on Evidence, J D Heydon, concluded that, at common law, statements not intended to be assertive were, nonetheless to be regarded as hearsay, if tendered to prove the truth of that which was impliedly asserted within them, whereas the hearsay rule did not extend to non-assertive conduct: J D Heydon, Cross on Evidence, (10^th Aust ed, 2014).

None of this matters greatly now. In R v Hannes[15] the New South Wales Court of Criminal Appeal seemingly endorsed the view that under the Evidence Act 1995 (NSW), the scope of the hearsay rule extended to implied, as well as express, assertions. We would, of course, ordinarily follow that decision as a matter of comity. However, without finally deciding the point, we should indicate that the language of s 59(1) of the Evidence Act 2008 (‘Evidence Act’), in its current form, lends support to the view that the hearsay rule does extend to at least some non-assertive statements.[16]
[15](2000) 158 FLR 359, 417–20 (Spiegelman CJ).
[16]This view is the product of the expression ‘it can reasonably be supposed that the person intended to assert’ in s 59(1), which carries with it the prospect that intention may properly be inferred objectively, thereby expanding the scope of the hearsay rule into the realm of implied assertions.

Her Honour’s description of the applicant’s counsel as seeking to place ‘testimonial reliance’ upon an exculpatory interpretation of what the applicant was said to have conveyed to Higgs was, in our view, correct.

In that respect, the applicant’s assertion, assuming it was to be understood as his counsel had intended, differs from evidence of an act of identification. Words of that kind are not relied upon as evidence of the truth of that which was asserted, but simply as original evidence, relevant by virtue of the fact that the words themselves were spoken.[17]
[17]See Alexander v The Queen (1981) 145 CLR 395.

The trial judge rejected the submission that what the applicant may have said to Higgs was not being relied upon testimonially by pointing out that what counsel was seeking to have the jury infer was that the applicant had told Higgs that he had no interest whatever in participating in the scheme because it was hopeless. In her Honour’s view, this was, in effect, a form of ‘testimonial reliance’. It was not a usage of the kind generally spoken of as original evidence.

However, it is fair to say the trial judge did not base her ultimate ruling upon the characterisation of this evidence. She focussed instead upon the fact that the applicant’s counsel had objected, from the outset, to the Higgs–Burns conversation being used in any way against his client. She reminded counsel that he had succeeded in his submissions in that regard. The prosecutor, who had by this stage already addressed the jury, and who had been directed not to rely upon that discussion in the case against the applicant, would be denied the opportunity to meet the new case, now being advanced for the first time, that what Higgs told Burns was in some way exculpatory of the applicant.

Undaunted, the applicant’s counsel responded by saying that he had made it plain that he would rely upon the conversation as exculpatory of his client through his cross-examination of Mr Herman. The trial judge, correctly, rejected that submission. She pointed out that the cross-examination had been stopped, and that the applicant’s counsel had conceded, at the time, that what he was seeking to elicit from the witness was inadmissible.

At the same time, the applicant’s counsel fairly acknowledged that his client was in no way precluded from mounting his defence by her Honour’s ruling as regards the Higgs–Burns conversation. He accepted that there were other examples, of similar discussions, all of which were in furtherance of the conspiracy upon which he could draw in support of the applicant’s contention that he never joined the conspiracy.

Perhaps as a ‘last throw of the dice’, the applicant’s counsel submitted that even if what Higgs and Burns had been discussing was, so far as the applicant was concerned, hearsay, it was admissible as an exception to the hearsay rule. He sought to invoke the common law res gesta doctrine.[18] It seems to have escaped his attention that this doctrine has no application under the Evidence Act.[19]
[18]Res gesta, at common law, was sometimes viewed as an exception to the hearsay rule, and sometimes as a species of original evidence. It required strict contemporaneity between a statement and a relevant transaction such that the statement could be said to be part of that transaction. Anything that may have been said by the applicant to Higgs regarding the possibility that the container could be moved from the wharf could hardly be viewed as a statement accompanying and explaining a relevant act. See generally, Ratten v The Queen [1972] AC 378, 389 (Lord Wilberforce).
[19]The doctrine of res gesta has been replaced by the statutory exception under s 66(2)(b) of the Evidence Act (Cf Evidence Act s 9). There is authority for the proposition that, notwithstanding the greater flexibility available under that sub-section, and also sub-section (2)(a), the defence may only take advantage of this provision by adducing exculpatory statements made by the accused, out of court, where the defendant is to testify. See R v Crislogo (1998) 99 A Crim R 178; R v Dyers (unreported, New South Wales Court of Criminal Appeal, Grove, Newman, Hidden JJ, 24 October 1997). That would obviously not avail the applicant in this case.

On the following day, her Honour ruled, in brief terms, that the res gesta doctrine could not be invoked. She further ruled that the use sought to be made of the Higgs–Burns conversation, as potentially exculpatory of the applicant, was impermissible, having regard to the way in which the matter had previously been conducted.

The applicant’s counsel was still undeterred. He then sought to invoke s 60 of the Evidence Act, arguing that once the evidence was before the jury, it was in for ‘all purposes’.

The trial judge dealt with that submission summarily. She pointed out that s 60 did not operate to render evidence that was admissible in the trial of one co-accused admissible for all purposes in the trial of another. If that were so, the admissions made by a particular accused, once tendered against that accused, would be admissible against all other accused. Section 60 plainly did not operate in that fashion. It was intended simply to ensure that juries were no longer confused by directions as to the limited use that could be made of evidence such as prior consistent, or prior inconsistent, statements. As a result of the section, evidence of that kind, once received, is now evidence as well of the truth of its contents.

The jury were then again brought back into court. They were told that they could not use the Higgs–Burns conversation in the way that counsel for the applicant had suggested, such evidence being neither admissible against the applicant nor admissible for him. She made it plain that whatever meaning they gave to the transcript of that conversation, it could not be relevant to the issue of the applicant’s participation in the conspiracy.

This then is the background to ground 1.

In our opinion, this ground must be rejected. Our reasons are as follows.

First, it is perfectly clear that the applicant’s position, through his counsel, was that anything said by Higgs to Burns on 25 June 2007 could not be used against him. His submission was that, not having been a party to that conversation, he could not be adversely effected by what was, in effect, hearsay. That was why it was put that the conversation was not in furtherance of the conspiracy.

Secondly, the cross-examination of Mr Herman took the matter no further.

Thirdly, the applicant’s counsel did not, by engaging in that cross-examination, preserve any right to argue that the evidence in question could be invoked in his client’s favour.

Fourthly, the prosecutor abided by her Honour’s ruling, and did not seek to argue the more compelling case that the Crown’s preferred interpretation of the transcript should be accepted. Had the prosecutor been permitted to do so, the result would almost certainly have been devastating, so far as the applicant was concerned. In our view, the transcript reads, to all intents and purposes, as though the applicant was negotiating for a substantial fee for his role in the securing of the container. It would have been surprising had the jury not arrived at the same conclusion.

Fifthly, the trial judge was correct in treating the proposed exculpatory use of the Higgs–Burns conversation as a form of hearsay, at the very least, an implied assertion tendered to prove the truth of that which was impliedly asserted.

Sixthly, no relevant exception to the hearsay rule was, or could be, invoked in favour of the proposed exculpatory use. In particular, neither the doctrine of res gesta, nor s 60(3) of the Evidence Act would suffice to render this evidence admissible for the applicant in answer to the case against him.

Seventhly, even if her Honour erred in stopping the applicant’s counsel from advancing this particular submission, it did not make any difference to the outcome of the jury’s deliberations. The meaning sought to be attributed to Higgs’ comments to Burns was so vague, and tenuous, that the jury would have given little or no weight to that submission. Accordingly, no miscarriage of justice was occasioned by the refusal to permit this evidence to be relied upon in the way sought.

We should note, in relation to the last of these propositions, that this is not an invocation by the Court of what was formerly termed ‘the proviso’. We are not, at this point, saying that the evidence, in its entirety, was so strong that a conviction was inevitable, and therefore that any error on the part of the trial judge would have made no difference to the outcome of this case. We are rather saying that any error on the part of her Honour, in this regard, would have been entirely inconsequential in the overall context of the trial. The applicant was in no way prevented from, or even impeded in, putting forward his defence, as his counsel rightly accepted. Accordingly, even an error on her Honour’s part, in this regard, could not have given rise to a substantial miscarriage of justice.

Conviction ground 2 — Trial judge’s ruling admitting evidence of applicant’s participation in legal proceedings during conspiracy period

The evidence in question concerned the applicant’s involvement as an accused in a trial conducted in the County Court at Melbourne throughout much of June and early July 2007. That trial concluded with a verdict of not guilty on the morning of 10 July 2007. It involved the applicant’s daily personal attendance in court between 10.30am and 1.00pm, and between 2.15pm and 4.15pm, Monday to Friday during that period.

There were a number of telephone calls, SMS messages, and surveillance device transcript involving the applicant and his co-conspirators (many of which occurred inside a hotel room located in reasonably close proximity to where the applicant was standing trial) upon which the Crown sought to rely, and in which there were references to his attendance at ‘court’.

The prosecution submitted that the word ‘court’ was necessary for a number of reasons.

First, it had some explanatory force in relation to why the conspirators had chosen the particular hotel that they stayed at throughout the relevant period.

Secondly, the fact that the applicant had to be at court, during the relevant hours, explained why the co-accused, and his fellow co-conspirators, had so little direct contact with him in the pivotal period of the conspiracy. The telephone call and surveillance device transcripts made it clear that he was in court, and that they were waiting for him to become available, and able to be contacted. That supported the Crown case as to his participation in the conspiracy, and the centrality of his role. It also rebutted an anticipated line of defence to the effect that he might argue that the lack of contact between himself and the others meant that he never, at any stage, joined the conspiracy alleged.

Thirdly, the fact that once the applicant was acquitted, extensive contact commenced during weekday daylight hours stood in stark contrast with the position that had prevailed previously.

Fourthly, the evidence in question explained why, throughout the earlier period, Higgs had adopted the role of a messenger between the applicant and the central figures Barbaro and Falanga. Once the trial had concluded, Higgs’ role fell away, and the applicant became involved in direct communications.

Fifthly, it was necessary to include references to the applicant having been at court to establish conclusively that the discussions in question were about him, and not someone else. In other words, the evidence went to identity.

Sixthly, and finally, to remove the references to the applicant having been in court at the relevant time from the transcript and/or tapes would be extraordinarily difficult. There were so many such references that excision of the word ‘court’ would result in incoherence, and would be practically impossible to achieve.

On behalf of the applicant, it was submitted that there was no need for the jury to be made aware of the fact that he was involved in legal proceedings throughout the relevant period. They could simply be told that he was tied up on business, and not readily available throughout that period.

In support of that submission, the defence made it clear that there would be no issue as to identity. In other words, the references to ‘court’ were unnecessary to establish that the person about whom the discussion was taking place was the applicant. For that reason, the prejudicial effect of having the jury possibly speculate about what the court proceeding was all about should be avoided, and the relevant information presented in a more anodyne fashion.

The defence submitted that the proposed notice to admit was deficient, and that it should be replaced by a request that the applicant admit merely that he was ‘otherwise engaged in pressing business’ or that he had ‘obligations’ between 10.00am and 1.00pm and 2.00pm and 4.00pm, five days a week. Those ‘obligations’ came to an end on the morning of 10 July 2007.

The trial judge ruled that the word ‘court’ should not be excluded from the notice to admit. However, reference to the legal proceedings involving the applicant’s ‘daily personal attendance’ was unnecessary and should be omitted. She stated that any risk that the jury might speculate as to what the court case was about could be dealt with by standard jury directions.

In the light of that ruling, the applicant declined to admit the facts contained within the proposed notice to admit, even as amended. Her Honour then ruled that the prosecution could proceed on the basis that the applicant admitted everything save for the fact that he had been at court, and evidence of that matter could be provided through the testimony of various witnesses. The prosecution indicated that it would lead evidence from federal agent Herman to establish the facts set out in the proposed notice to admit.

On that basis, the prosecutor proposed to lead the following evidence from Mr Herman:

Is it the case that [the applicant] was involved in continuing legal proceedings being conducted in Melbourne in June 2007 into July 2007, including shortly prior to 11am on Tuesday 10 July?
From your information and belief, is it the case that [the applicant’s] participation in these legal proceedings involved his daily personal attendance in court between 10.30am and 1pm, and between 2.15pm and 4.15pm Monday to Friday during the aforementioned period?[20]

[20]Trial Transcript 188.

These proposed questions were approved by her Honour, notwithstanding her previous indication that the reference to the applicant’s ‘daily personal attendance’ in court was unnecessary.

Despite that ruling, the applicant’s counsel sought to renew his application that the jury not be told anything about ‘legal proceedings’ involving daily personal attendance. He submitted that, framed in that way, the jury would readily apprehend that the applicant was involved in court, and would speculate that he was on trial for a criminal offence. The trial judge disagreed, and rejected the renewed application.

When Federal Agent Herman ultimately gave evidence, he was asked questions very similar to those posited above.[21]
[21]See above [98].

The transcript reads as follows:

Prosecutor:Is it the case that [the applicant] was involved in continuing legal proceedings being conducted in Melbourne in June 2007 into July 2007?
Herman:Yes
Prosecutor:Did those legal proceedings finally conclude shortly prior to 11 am on Tuesday 10 July 2007?
Herman:Yes.
Prosecutor:Did [the applicant’s] participation in those legal proceedings involve his daily personal attendance in court generally between 10.30 am and 1 pm and then between 2.15 pm and 4.15 pm Monday to Friday?
Herman:In general terms, I would say the - the attendance normally - the – she quoted [sic] to be in attendance normally around ten o’clock rather than 10.30 from my inspection of the records available to me.[22]

[22]Trial Transcript 495.

The reference made by Mr Herman, in his last answer, to ‘records available to me’ needs to be considered with some care. It was submitted, on behalf of the applicant, that this expression would have been understood by the jury to mean records available to the Australian Federal Police, and would have suggested that the applicant was standing trial for a matter that concerned them. One could conjecture that they might even have concluded that the trial involved an importation of drugs.

The next thing to note about this ground is the way in which the applicant’s counsel ultimately dealt with this issue. Rather than leave the matter in a state of uncertainty, he ‘bit the bullet’, and in his closing address, had this to say:

Throughout the time that this case begins, up to 10 July, and that’s the critical period, from the arrival of the boat, 27th, 28th, up to about 10 July, he is engaged in a trial in this very courthouse, the corner of William and Lonsdale. He comes in, in the mornings, and goes to lunch, then back in the afternoon, finishing at 4.15 Monday to Friday, just like you have done in this case. You know the routine, you know the pressure, you know the concentration and that build up towards the decision. You know that, you are experiencing it right now. You know the surrounds of this court, the presence of lawyers, the local eating places. This is what [the applicant] was engaged in at the same time as these idiots were trying to speak to him and so he’s got something else in his life going on, pretty significant.
The Crown says that he meets these men at night, as if that’s something terrible, in restaurants. What was he supposed to do, ask the judge if the matter could be just stood down for a moment so he could pop out and speak to these blokes in office hours? It doesn’t work like that.
He speaks of, and Higgs tells these people, that he has family obligations and he is with his children. When he can get away from court or family it’s at the behest of these men that float in and out of town without any reference to or respect for him or for his family or for his convenience of conducting a trial.[23]

[23]Ibid 2275–6.

Later, in the course of his address, the applicant’s counsel referred to his client having been occupied ‘in court’, and unable to respond to communications that may have been made to him. Having noted that the container was ultimately opened, and inspected by the Australian Federal Police on 10 July, he went on to say:

Also on the 10th [the applicant] was successful in his court case and no longer had to attend this courthouse. You will see that [the applicant] is virtually off the air save for people congratulating him and arranging for celebration dinners that Mr Higgs eventually attended. It was down at Waterfront, or he was down late, and you can see that throughout this period of time each day he’s been involved — there are a couple of half days and you know how the half days occur — he’s been involved in a court case. He’s won his court case. He celebrates. Can you imagine his interest in these people’s arrangements?[24]

[24]Ibid 2304.

Thereafter, the applicant’s counsel referred to the events of 2 and 3 July, and various attempts made by the central figures in the conspiracy to contact the applicant. The transcript is as follows:

Now, these men are convinced that [the applicant] knows what he has to do and are anxious for him to do it and tell them. It’s something they don’t know. It’s something to do with the container obviously and they are pinning their hopes on [the applicant]. As far as they are concerned he seems to hold the key, being the answer. They want to get an answer from him and that’s why they’re waiting the long night. That’s why they’re going to get him in the morning on the way to court.
But what are the facts as far as [the applicant] is concerned, whose case you are considering as far as I’m concerned? He is engaged in this court case. He is having dinner on Monday night apparently with his lawyers.[25]

[25]Ibid 2357.

All of this is being said, by counsel for the applicant, against the background of the applicant’s defence which, as we have said, was that he never at any stage considered this scheme of trying to get a container–load of drugs through customs, and the shipping company, without being the named consignee, as anything other than ‘mad’. In his submission, the applicant would never have taken seriously the suggestion that the container could be obtained in this way. It would follow that he never joined the conspiracy alleged.

The closing address went on to make repeated reference to the applicant having had ‘business in court’.[26] Towards the conclusion of the address, the applicant’s counsel said this:

The 9th is the last day of [the applicant’s] court matter. The evidence does not disclose whether it’s a civil or criminal case. It does not matter. But it’s been going on throughout the whole period we have been considering. You will have noticed how in some communications Mr Higgs has inquired as to the progress of his case.
Just going back to that metaphor, just imagine the contemplation Mr Pendlebury would give to joining Griffith during the Grand Final week, let alone having a child with a chronic gluten condition requiring hospital tests on the previous Saturday. Whatever the position, he must have been transfixed on his case on this last day, and is it any wonder he says in his text, ‘Nowhere to go’.
He returns to court for the decision on the 10th, which comes about at around eleven o’clock. Whatever it is, he is successful. Imagine the relief after at least five weeks, that this case covers at least, just imagine the build-up and what sort of relief there must have been. Again, what interest would Pendlebury have in joining Griffith? He had just won the Grand Final? He goes to celebrate at the Waterfront.
So it’s not just what these men want of [the applicant]. The applicant’s got a life going on completely separate to this. Genuine distractions. And the proposition is he joined them, despite the fact he does nothing, and he joined them as an intelligent man, knowledgeable in this particular area, against his advice.
Falanga is still in dreamland, playing the big fella, saying ‘my boys’, ‘your boys’, ‘waiting for numbers’ and walking up and trying physically [sic]. I suggest to you, you’ll find that Falanga is a fraud. Barbaro says to him, ‘I think we are fighting a losing battle’ and to go to Sydney.
[The applicant] goes out and celebrates long and hard. Who should ring the following day or shortly after his success? Mr Baini, saying, ‘All the best and congratulations’.[27]

[26]See, eg, Trial Transcript 2359–60, 2363, 2374, 2385, 2394.

[27]Ibid 2379–80.

It can be seen that the applicant’s counsel did, on repeated occasions, raise with the jury the fact that the applicant was involved in his own court case throughout much of the relevant period. Presumably, he sought to gain from that fact a finding that the applicant would have had other things on his mind, apart from participation in what he would have known from the outset was a ‘mad’ scheme, incapable of ever being implemented. This involved a forensic choice by the applicant’s counsel. The matter could have been dealt with far more briefly, and dismissively. Had that course been adopted, the trial judge might well have directed the jury not to speculate about the matter, and to use the evidence only in the very limited ways that had been foreshadowed. Instead, it was elevated, by the applicant’s counsel, to a matter that in his address assumed some significance.

It should be noted that the prosecutor said very little about this evidence in the course of his lengthy closing submissions. Insofar as he did address the matter, he tended to focus upon its probative value in establishing that the person about whom the main players were speaking was the applicant. In other words, he concentrated upon the reference to being in ‘court’ as establishing that the person being discussed was, in fact, the applicant.[28]
[28]See Trial Transcript 1933, 1934, 1974, 2027, 2040, 2054, 2055, 2164, 2170, 2246.

At one point, the prosecutor did take the matter a little further. He referred to what the Crown considered to be one of the most important conversations in furtherance of the conspiracy, which took place at about 3.50pm on 4 July 2007. The participants were Higgs and Zirilli, and the discussion occurred in room 609 of the Pacific International. The prosecutor said:

Just to go into that particular conversation that you’ve now heard for a second time, when he arrives at room 609 Mr Higgs explains that he’s been unable to obtain any further news and he doesn’t say where from, but says that he’s received a text last might [sic] in terms of ‘delivery successful’. You might think that when that term is repeated several times Mr Zirilli seems to be — it sounds like a clapping of hands, there is certainly a noise. There is some obvious excitement and Mr Zirilli remarks ‘beautiful’.
Interestingly, when Mr Zirilli is then trying to recall that message later on into the conversation he reveals, you might think, his understanding of the meaning of the message received when he says that what was said was ‘movement okay’. Higgs reminds him that the exact words weren’t ‘movement okay’ but were rather ‘delivery successful’. Zirilli says that’s fair enough.
So Zirilli’s revealed understanding that [the applicant] had finally sent a message indicating ‘movement okay’ is entirely consistent, we say, with the reason underpinning [the applicant’s] role within the conspiracy, namely that [the applicant] would hopefully be able to provide a green light if it was safe to take steps to obtain possession of the container.
What then happens is responsive to that message. You’ve got Mr Zirilli saying that a truck would need to be organised and speaks about the timeframe. Mr Higgs speaks in terms of its unloading. Zirilli encourages Higgs to meet [reference to applicant’s first name], who clearly is [the applicant] having regard to the other identification detail that surrounds this conversation, earlier than 5 p.m. and Higgs says that that would be impossible because court didn’t finish until just after four, again confirming, as we say, who is being spoken about here.
Higgs did say that nevertheless he was proposing to walk around to the court at about ten to four. Once again, we say that the conversations about a man who is not in the room, [the applicant], clearly confirm his relevant mutually understood role as to what was believed to be the most crucial moment within the conspiracy, namely being able to get the go ahead.
This was the type of message that had been awaited from [the applicant] for some time, or it was thought that it was, that in fact a green light was being given by a person who it would be hoped would be able to do if he could.[29]

[29]Ibid 2039–41.

This was perhaps the only time, in the prosecutor’s closing address, that he sought to invoke the references to the applicant being in ‘court’ as part of the evidence in furtherance of the conspiracy. It is fair to say, however, that the major thrust of the prosecutor’s submissions regarding this particular conversation related to its use in the case against Higgs.

The trial judge dealt with these references to the applicant being in court in a summary manner. Sensibly, she said nothing to the jury about that matter, other than to remind them of what the prosecutor had submitted in his closing address, and what the applicant’s counsel had submitted in reply. She gave no special direction regarding the significance, if any, of the fact that the applicant had been in court throughout much of the relevant period, and did not in any way highlight that matter.

Importantly, no exception was taken to her Honour’s charge in that regard. Not surprisingly, the applicant’s counsel did not ask for any particular direction or warning, but was content to have the jury consider the competing contentions on their merits. It is necessary to remember that it was his own decision, no doubt on instructions, to deal with the issue by confronting it head on, and adding to the evidence as it stood the particular gloss that he sought to place upon it.

That leaves for consideration the actual ground, which complains of her Honour’s failure to exclude reference to the applicant’s participation in ‘legal proceedings’ during much of June and early July 2007. The short point put forward on behalf of the applicant is that the probative value of this evidence was slight, and was significantly outweighed by its potentially prejudicial consequences. As such, the applicant submits that the evidence should have been excluded pursuant to s 137 of the Evidence Act.

The trial judge, having heard extensive argument on this point, was not persuaded that a more anodyne explanation for the applicant’s general unavailability during the hours in question would be sufficient. She saw significant probative value in terms of confirming not merely the applicant’s identity through this means, but also negating his defence that he never at any stage considered the proposed scheme as anything other than hopeless.

The onus of establishing that s 137 should be invoked in favour of the applicant rested upon him. He had to persuade the court that the probative value of this evidence was outweighed by the danger of unfair prejudice. If he did so, the word ‘must’ in s 137 would mandate exclusion.

It has been clearly determined that the exercise of the power under s 137 does not entail the exercise of a discretion.[30] The correct approach is to perform the weighing process mandated. Nonetheless, it is also clear that the onus to have evidence excluded under this section lies on the defence.[31]
[30]R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61, [19]–[20] (Sheller JA). See also R v GK (2001) 53 NSWLR 317, [74] (Sully J).
[31]Gilmour v EPA [2002] NSWCCA 399, [46]; R v DG [2010] VSCA 173, [54].

In our view, the trial judge correctly recognised that there were a number of different reasons why the jury should be made aware of the inability of the central players in the conspiracy to contact the applicant directly during the relevant periods that he was tied up in court throughout June and early July 2007. Otherwise, without a full appreciation of why the applicant could not be contacted at a time when frantic efforts were being made to organise for the container to be removed from the port during that period, the jury might well have been misled as to the significance of that fact, and as to the applicant’s central role in the plan.

Of course, as we have noted, the evidence could have been presented in a different fashion. It might have been said that he had business commitments that he simply could not avoid during that period, and could not be contacted. That explanation would no doubt have seemed extremely strange to a modern jury, well attuned to the use of mobile phones, emails and texting. To get the full flavour, by way of explanation for the applicant’s being incommunicado during that period, it was necessary to say something more.

It was submitted, on behalf of the Crown, during oral argument before this Court, that there was no prejudice to the applicant in having the jury told that he was involved in legal proceedings during the relevant period. That is because they might have inferred that he was merely serving on a jury. In our opinion, that submission was far-fetched and wholly untenable. Plainly, this evidence had the potential to be prejudicial so far as the applicant was concerned.

Nonetheless, s 137 does not mandate the exclusion of any evidence that, in and of itself, might carry some risk of prejudice. There are times when evidence which has that character is nonetheless highly probative, and should be received. The test is whether the probative value is outweighed by any likely prejudicial consequences, not whether there is any risk of prejudice at all.

Having given this matter anxious consideration we consider that the risk of improper prejudice flowing to the applicant from the manner in which the evidence was led (as distinct from the manner in which his counsel chose to address it) was not such as to give rise to any miscarriage of justice.

Ground 2 must be rejected.

Conviction ground 4 — Claimed misdirection on the elements of the offence

In our opinion, ground 4 — which contends that the trial judge misdirected the jury that an element of the offence was that the applicant agreed ‘to obtain either for himself, or to assist or aid another to obtain’ a border controlled drug — is without substance.

As we understood the applicant’s arguments, under cover of this ground there were two principal criticisms levelled at the judge’s directions.

First, it was submitted that pursuant to s 11.5 of the Criminal Code (Cth), conspiracy requires an intention that the offence the subject of the conspiracy be committed;[32] and, as a matter of law, it is impossible to aid and abet a statutory offence of conspiracy.[33] It was submitted that the trial judge misdirected the jury by instructing them that one of the elements of the offence charged was that the applicant had agreed ‘to obtain either for himself, or to assist or aid another to obtain’ possession of a border-controlled drug. Thus, in effect, the judge had invited the jury to convict the applicant on a basis that simply was not open. Counsel submitted that the ‘gravamen’ of the complaint made under cover of ground 4 is that the judge’s directions had the potential to leave the applicant liable to conviction on the basis of conduct ‘anterior to the agreement’. It was contended that ‘agreement’ is the actus reus of conspiracy, yet the judge expanded the actus reus to include ‘aiding’ and ‘assisting’.
[32] R v LK; R v RK (2010) 241 CLR 177, 228 [117], 232 [133] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), 343–5 [141] (Heydon J); Ansari v The Queen (2010) 241 CLR 299, 317 [58]–[61] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[33]R v Kenning & Ors [2009] QB 221, 226–8 [16]–[22] (Lord Phillips of Worth Matravers CJ, Dobbs and Underhill JJ).

Secondly, the applicant submitted that in Rolls, Harper JA distinguished between an expressed common or mutual acceptance that a particular outcome was desirable, or would be an end product of a sequence of events, and an agreement that two or more persons would bring that end about by jointly participating in action to that end.[34] It was contended that the directions given by the trial judge, however, erroneously equated ‘an acceptance that a particular outcome was desirable’ with an agreement that a course of conduct should be pursued which would involve the commission of an offence. The directions wrongly confused an acceptance that a particular outcome was desirable with an agreement that a course of conduct should be pursued which would involve the commission of an offence.[35]
[34] Rolls v The Queen; Sleiman v The Queen (2011) 34 VR 80, 93–4 [58]–[61] (Harper JA) (‘Rolls’); R v Moran and Mokbel [1999] 2 VR 87, 95–6 [28] (‘Moran’).
[35]On the hearing in this Court, a third submission in the applicant’s written case — that the judge’s directions ‘erroneously equated recklessness with an intention that the offence the subject of the agreement be committed’ — was not maintained.

In our opinion, however, an examination of the trial judge’s thorough directions to the jury — oral and written — reveals that the applicant’s criticisms are devoid of merit. The directions did not — and were not apt to — merge conspiracy and aiding and abetting; and did not confuse an acceptance that a particular outcome was desirable with an agreement that a course of conduct should be pursued which would involve the commission of an offence. Before turning to an examination of the judge’s directions, however, it is necessary briefly to set out the elements of the offence.

By virtue of s 307.5 of the Criminal Code (Cth), a person who possesses an unlawfully imported border controlled drug in a commercial quantity commits an offence; and s 11.5 of the Code provides that a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence. Section 11.5(2) makes clear that, for a person to be guilty of conspiracy to commit an offence, the person ‘must have entered into an agreement with one or more other persons’; the person ‘and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement’; and the person ‘or at least one other party to the agreement must have committed an overt act pursuant to the agreement’.

[41]R v Doff (2005) 54 ACSR 200 (‘Doff’).

[42]Wood CJ at CL, Adams and Bell JJ.

[43]Doff (2005) 54 ACSR 200, [58(c)].

This passage in Doff was referred to with approval in Christov.[44] In Christov, Rothman J (with whom Giles JA and McCallum J agreed) said:

If the utilitarian value of the manner in which a trial is conducted were a mandatory factor to be considered in sentencing, then a failure to take such factor into account would be an error of law. But the [Crimes (SentencingProcedure) Act1999 (NSW)] does not so provide. The factor to which this Court referred in Doff … is a factor that may be taken into account by a sentencing judge. But there is no requirement to take it into account. There may be circumstances where the failure to take such a factor into account would be an error that should, and would, be corrected on appeal. But this is not such a case.[45]

[44]Christov v R [2009] NSWCCA 168 (‘Christov’).

[45]Ibid [71].

In New South Wales, Doff has been followed many times. In some cases a sentencing discount has been given for co-operation at trial; in other cases the benefit of co-operation has not been regarded as sufficiently significant to give rise to any mitigation of sentence.[46]
[46]See, eg, R v Choi [2007] NSWCCA 150, [143], [149]–[152]; R v Fodera (2007) 65 ACSR 100, [28]–[29]; R v Podesta [2008] NSWSC 1204, [36]; R v Nguyen [2011] NSWSC 562, [44]; R v Jin [2011] NSWSC 169, [30]; R v Iskandar [2012] NSWSC 1324, [60]; R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764, [61]–[63].

In Queensland, the issue of whether a sentencing discount should be given for the utilitarian benefit of an accused’s admissions at trial was first dealt with authoritatively in Oprea.[47] In Oprea, McMurdo P dealt with the issue in the following terms:

Unfortunately, the learned sentencing judge was not asked to consider this factor as a mitigating feature. As this was not canvassed at first instance, it is not clear how much court time and public resources were saved through Oprea’s admissions at trial. They obviously resulted in some savings to the community. Those charged with criminal offences should be encouraged to admit non-contentious matters at trial, thereby saving the prosecuting authorities the trouble and expense of proving them. This can be achieved by giving an appropriate discount, if convicted, at sentence. Any discount will depend on the extent of the resulting savings to the authorities and the community. The judge’s omission to do so in this case is plainly because his Honour was not asked to do so, but it is a matter deserving of some specific, modest mitigating benefit in the sentence subsequently imposed.[48]

[47]R v Oprea [2009] QCA 184 (‘Oprea’).

[48]Ibid [21].

In Oprea, McMurdo P was in dissent on the result of the appeal. On the issue of the utilitarian benefit of admissions made by an accused at trial, Keane JA (with whom Chesterman JA agreed) said:

As to whether the learned sentencing judge could be said to have erred in failing to recognise the applicant’s ‘limited cooperation in making sensible admissions at trial’, I am respectfully of the view that the sentencing judge was not obliged to take that matter into account in the circumstances of this case. It is certainly not open to this Court to conclude that his Honour erred in failing to do so.
There was no submission made to the learned sentencing judge that the admissions made by the applicant at trial should have been taken into account by way of reduction of his sentence. Indeed, no submission was made to this Court that there was some real utilitarian value in these admissions which should have been, but was not, reflected in the sentence imposed on him.
It is certainly not apparent from the record that the witnesses necessary to give the evidence the subject of the admissions had not been marshalled prior to trial so as to be available to give evidence. One cannot gauge the real nature and extent of the utilitarian value of the submissions, but the fact that no-one thought to suggest to the learned sentencing judge that the making of the admissions was deserving of recognition by way of moderation of his sentence tends to suggest that the admissions may not have been of any substantial utilitarian value to the administration of justice.
In these circumstances, this Court cannot regard the absence of a ‘credit’ for the applicant’s admissions at trial as an error which warrants the fresh exercise of the sentencing discretion.[49]

[49]Oprea [2009] QCA 184, [25]–[28].

What was said by the Queensland Court of Appeal in Oprea about the mitigatory effect on sentence of the utilitarian benefit of admissions made at trial was considered again by that court in Maya,[50] in which Dalton J (with whom Muir JA and Peter Lyons J agreed) said:
[50]R v Maya & Kennedy [2012] QCA 123 (‘Maya’).

Thirty separate admissions were made. When regard is had to the substance of what was admitted, most, if not all, admissions are of matters which the Crown could have proved independently in any event. Having said that, it can also be seen that some of the matters would have been time-consuming and expensive to prove: e.g., the packages containing drugs were posted from Buenos Aires and intercepted in Germany, and the prosecutor acknowledged on the sentence that without the admissions it would have been necessary for some German witnesses to give evidence at the trial … The case was originally listed for two weeks but, after admissions were made, was re-listed for five days. The prosecutor acknowledged those matters on sentence, but pointed out that the admissions were made relatively late before trial ...
Oprea did not give any information about the network he was involved in or his part in that network, and the Court of Appeal noted that in those circumstances it could not give him the benefit of mitigation given to offenders, for example like Tran. Nonetheless, the President in her dissenting judgment did note that Oprea did co-operate with the authorities in the way the trial was conducted by admitting facts. Those facts are set out at [20] of the Court of Appeal judgment. They are less extensive admissions than those made in this case. In Oprea, the President noted that there was nothing before the Court as to how much time and resources had been saved because of the admissions made. However, she stated a general principle that:
’Those charged with criminal offences should be encouraged to admit non-contentious matters at trial, thereby saving the prosecuting authorities the trouble and expense of proving them. This can be achieved by giving an appropriate discount, if convicted, at sentence. Any discount will depend on the extent of the resulting savings to the authorities and the community ... [The making of admissions] is a matter deserving of some specific, modest mitigating benefit in the sentence subsequently imposed.’
…

In Oprea, McMurdo P spoke of the need to make a specific, modest, allowance to defendants who made admissions which shorten trials, see the extract above. Keane JA also acknowledged in that case that co-operation of this type, to the extent that it had a real, useful impact in shortening a trial, was to be taken into account, [25]–[28]. In this case the sentencing judge expressed the view that allowance was made for the effect admissions made by the applicants had on shortening the trial time … although he did not specify what reduction was made.[51]

[51]Ibid [18], [27] [35] (citations omitted).

In Fattal,[52] this Court had to deal with a submission that consideration should be given in sentencing for the co-operation the accused in that case had demonstrated with the Crown during the course of the trial. The submission made to the Court in Fattal was based upon observations said to have been made by Bongiorno J in sentencing in Benbrika.[53] In the judgment of the Court in Fattal, no reference is made to the New South Wales and Queensland authorities to which we have just referred. The Court[54] dealt with the submission made in the following terms:

During the course of the plea, counsel for Aweys relied on the observations of Bongiorno J in sentencing Benbrika to the effect that consideration should be given in sentencing for the co-operation the offenders had demonstrated with the Crown during the course of the trial.[55] It was submitted that Aweys had conducted himself both appropriately and respectfully during the trial with many admissions having been made which had obviated the need for evidence to be called that in turn shortened the trial process. It was also submitted that his behaviour in court was in stark contrast to that of Fattal. Her Honour accepted that Aweys had acted co-operatively during the trial but determined that she would give this no weight in sentencing and the issue was not addressed in her sentencing remarks. Aweys argued that this was an error and that his co-operation should have resulted in a moderation of sentence.
However, in our view, her Honour was entitled not to consider Aweys’ respectful conduct in court as a factor in mitigation of sentence. She was not bound to follow the practice of Bongiorno J. It was open to her Honour to give the issue no weight. Just as she was not obliged to take into account, as an aggravating factor, the disruption caused by Fattal during the trial, she was also not obliged to take into account Aweys’ co-operation during the trial as a mitigating factor.[56]

[52]Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276 (‘Fattal’).

[53]R v Benbrika (2009) 222 FLR 433, 452 [52] (‘Benbrika’).

[54]Buchanan AP, Nettle and Tate JJA.

[55]R v Benbrika (2009) 222 FLR 433, 445 [52]. Whealy J in R v Elomar (2010) 264 ALR 759, 782 [92] also took conduct contributing to the efficiency of the trial into account in fixing a sentence.

[56]Fattal [2013] VSCA 276, [193]–[194].

Further, we note that in Romero,[57] the Court regarded the manner in which the defence at trial was conducted — insofar as it contributed to the facilitation of the course of justice and evidenced remorse — as a mitigatory feature. In that case the applicant was convicted of murder, but had urged the jury to convict him of defensive homicide. Redlich JA (with whom Buchanan and Mandie JJA agreed) observed:[58]

It was submitted that some allowance should have been made for the fact that the applicant had invited the jury to convict him of defensive homicide. Counsel for the applicant accepted that this was entirely different to the circumstance where an accused, who is convicted of a lesser offence, has offered to plead guilty to that offence before the trial commences. The offender is entitled, in that circumstance, to the full discount as though he had pleaded guilty. I agree with the submission made by senior counsel for the Crown that the acknowledgment by the applicant through his counsel during his trial that the jury should return a verdict of guilty to defensive homicide was a relevant mitigatory factor to be taken into account, as it contributed to some degree to the facilitation of the course of justice and because it may have evidenced the applicant’s remorse.

[57]Romero v The Queen (2010) 32 VR 418.

[58]Ibid 488–9 [6].

For the sake of completeness, we should note that in New Zealand the issue is dealt with in s 9(2)(fa) of the Sentencing Act 2002 (NZ). That section provides that in sentencing an offender a court must take into account, as a mitigating factor, ‘that the offender [had] taken steps in the proceedings … to shorten the proceedings or reduce their cost’. [59]
[59]See further the position in Scotland where it has been held that the utilitarian benefit of co-operation may be taken into account on sentence: HM Advocate v McNamara [2012] HCJAC 54; 2013 JC 53, 58 [18] (Appeal Court, High Court of Justiciary, comprising Lord Carloway, Lord Mackay of Drumadoon and Lady Cosgrove).

In our view, the authorities show that the co-operation by the accused with the Crown and the facilitation (shortening) of the conduct of the trial may be a matter taken into account upon sentencing even when remorse has not been shown. The utilitarian value of such conduct, in appropriate circumstances, is a matter that might mitigate a sentence that would otherwise be imposed.[60] That is not to say that there should always be a reduction in sentence. Each case will depend upon its own circumstances. In some cases, where admissions have been made, it might be plain that such admissions were made for good strategic reasons. In such circumstances, it may be that it is illusory to talk about a utilitarian benefit where none really exists because no rational person would have prolonged his or her trial by putting in issue matters that the Crown was plainly in a position to prove.
[60]See Doff (2005) 54 ACSR 200, [58(c)]; Christov [2009] NSWCCA 168, [71]; Oprea [2009] QCA 184, [21], [25]–[28], [35]; Maya [2012] QCA 123, [18], [27], [35]; Benbrika (2009) 222 FLR 433, 445 [52]; Fattal [2013] VSCA 276, [194]; R v Nuttall; ex parte Attorney-General (Qld) (2011) 209 A Crim R 538, 556 [79] (Muir JA, with whom Fraser and Chesterman JJA agreed); R v Cox [2013] QCA 10, [75] (Holmes JA, with whom Gotterson JA and Philippides J agreed); Lee v R [2012] NSWCCA 123, [22], [42] (Hoeben JA, with whom Hidden and Beech-Jones JJ agreed); Gedeon v R (2013) 283 FLR 275, 331 [338], [340] (Bathurst CJ, with whom Beazley P, Hoeben CJ at CL and Blanch and Price JJ agreed); R v Henderson [2014] QCA 12, [101], [102], [132] (Henry J, with whom McMurdo P and Mullins J agreed); Versluys v R [2014] NSWCCA 98, [37] (Hamill J, with whom Simpson and Hidden JJ agreed).

In considering any amelioration of sentence that might be afforded for an accused’s co-operation or admissions made during the course of a trial, care needs to be taken to ensure that other accused who might not have made admissions or who might have more vigorously contested the Crown case are not penalised for exercising their legal rights to defend themselves.[61]
[61]See generally R v Gray [1975] VR 225; R v Marijancevic (1991) 54 A Crim R 431; R v Yam (1991) 55 A Crim R 116; Siganto v The Queen (1998) 194 CLR 656; R v Watkins (2001) 120 A Crim R 565; R v Massey (2001) 125 A Crim R 439.

In the present case, the judge accepted that if the applicant had not made the admissions he made at trial, then this already lengthy trial would have been extended for at least two months (if not more). However, the Crown submits that the admissions made by the applicant were only made formally (although having been foreshadowed) at a very late stage in the trial. Further, the Crown submits that the admissions were made in the face of overwhelming material disclosing that the Crown was well placed to prove all of the matters it sought to prove as part of its case. In the circumstances, the Crown submits, there was in any event no error in the judge failing to take into account a utilitarian benefit occasioned by the applicant’s admissions and conduct of the trial.

We think there is force in these submissions. We are not persuaded that the applicant in this case should receive a discount on sentence for conducting a strategic ‘confess and avoid’ defence. If we are wrong about that, the issue arises as to whether any different sentence should now be passed[62] — a matter about which we will say more below.
[62]Cf Criminal Procedure Act 2009 ss 280(1), 281.

Sentence ground 2 — Claimed manifest excess

In ground 2, complaint is made that the judge imposed a sentence that was manifestly excessive, having regard to the applicant’s personal circumstances and lack of relevant previous convictions.

The judge commenced her examination of the applicant’s personal circumstances by noting that the applicant had previously been dealt with, in 1987, for offences of burglary and destroying property with intent. He was released on a recognisance to be of good behaviour for two years in relation to those offences. As the judge said, these previous offences were of little relevance due their nature and age.[63]
[63]Reasons [46].

Having noted the lack of relevance of the applicant’s prior offending, the judge then set out matters personal to the applicant in some detail. Specifically, the judge noted that the applicant was married with three children — although now separated from his wife; that the applicant was the eldest of five children born of Lebanese migrants who came to Australia in 1974; and that the applicant successfully completed year 12, before enrolling in, and completing, the first year of a university degree in civil engineering. Additionally, the judge described the applicant’s employment history; the fact that the applicant had been declared bankrupt after taking over an organisation; and a matter concerning the health of one of the applicant’s children.[64]
[64]Reasons [47]–[50].

Next, the judge turned to the question of delay[65] and the applicant’s counsel’s submission as to the applicant’s knowledge of, and participation in, the conspiracy of which he had been convicted.[66]
[65]Ibid [51].
[66]Ibid [52].

It is not submitted on behalf of the applicant that the judge misstated the applicant’s history or personal circumstances. Rather, it was submitted that the sentence imposed by the judge disclosed that inadequate weight had been given by her Honour to these matters.

We reject these submissions. The maximum term of imprisonment for the offence for which the applicant was convicted is life imprisonment. As the judge said (correctly in our view), ‘the circumstances relating to this charge are such that establish the offence as being at the highest level of offending for offences of this nature’.[67] Further, while the applicant was not at the apex of the conspiracy, he was next below the three of his co-offenders who the judge found were ‘at the head of the organisation’.[68] As the judge put it, the applicant held a very important position within the planning group of the conspiracy in that his advice was sought and his views accepted and acted upon in relation to such matters as customs clearance and other matters of logistics over the period of the attempt to gain possession of the drugs.[69]
[67]Ibid [35].
[68]Ibid [16].
[69]Ibid [16]–[17].

Having regard to the extremely serious nature of the applicant’s offending, we see no basis for contending that her Honour failed to give adequate weight to the applicant’s personal circumstances and his lack of relevant prior convictions.[70] The sentence imposed by the judge was one that was well open. In our view it is not reasonably arguable to contend (as the applicant must, in order to succeed on a manifest excess ground) that the sentence was wholly outside the permissible range of sentences open in all the circumstances.
[70]Cf the terms of ground 2 in the applicant’s application for leave to appeal against sentence.

Sentence ground 3 — Parity with the co-conspirator Agresta

The judge sentenced Agresta to a term of imprisonment of 12 years, with a non-parole period of 8 years and 6 months. The judge found that the positions occupied by the various persons involved in the conspiracy were as follows:

·Barbaro, at the apex of the conspiracy, the financier and main organiser together with,
·Falanga, who is equal in terms of criminality with Barbaro, although in terms of the organisational structure may be considered not as overtly involved.
·Zirilli who was in a very similar but slightly lower position than Falanga, being the right hand man of Barbaro and able to substitute for him when he was unavailable, but it would appear acting upon his instructions.

·[The applicant], who was below those three people at the head of the organisation, but still held a very important position within the planning group, in that his advice was sought and his views accepted and acted upon.
·Higgs, who was in an inferior position to [the applicant], and was considered by some of the group to be reckless and foolish in his behaviour, but still considered by all to be an important participant, with his knowledge, experience and contacts.
·Agresta and Sergi appear to be the foot soldiers of the conspiracy, in that they do not appear to have a decision making or decision influencing role, even allowing for the call urging Barbaro and Zirilli to return to Melbourne that was made by Agresta. The crown have submitted that Agresta has a significantly higher role than that of Sergi, and whilst I am satisfied that he had a more influential role than Sergi, I am of the view that it is below the role of Higgs and slightly more important than the role of Sergi, that is the role of Agresta falls somewhere between the role of Higgs and Sergi, but not as high as the crown submitted.[71]

[71]Reasons [16].

The applicant makes no complaint about the judge’s findings as to his level of involvement in the conspiracy. In argument, the applicant conceded that the judge was correct to conclude that the applicant had relevant and significant expertise in international freight forwarding — a matter of considerable importance in the conspiracy.

However, the applicant contended that the judge undervalued Agresta’s contribution and position in the hierarchy. The applicant contended that there was, on the evidence, not much to differentiate his position from Agresta’s position.

We reject these submissions. First, it is to be noted that Agresta’s participation in the conspiracy was for a significantly shorter period of time (a week or so in July 2007) than that of the applicant (June 2007 to September 2007). Secondly, while Agresta’s area of expertise might loosely be described as being in the same field as the applicant’s, the evidence disclosed that the applicant’s level of experience and involvement in international freight forwarding was significantly greater than Agresta’s.

Ultimately, we are not persuaded that her Honour erred in her findings as to the relative positions of the applicant and Agresta. On her Honour’s findings, we see no parity issue in relation to the sentences imposed on the applicant and Agresta.

Disposition of the application for leave to appeal against sentence

In order to succeed in overturning the sentence imposed by the judge, the applicant must demonstrate error and that a different sentence should now be passed. We are not persuaded that any error was made by the judge when she sentenced the applicant. That said, even if error had been shown, we do not think any different sentence should now be passed: this was, as we have said before, an extremely serious example of a very serious crime. It was offending at the highest end of the scale.

The application for leave to appeal against sentence must be refused.

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[2015] VSCA 50

31 March 2015