Obian v The King
[2023] VSCA 18
•16 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0164 |
| SAER OBIAN | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | PRIEST, NIALL and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2022 |
| DATE OF JUDGMENT: | 16 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 18 |
| JUDGMENT APPEALED FROM: | [2020] VCC 915 (Judge Trapnell) |
---
CRIMINAL LAW – Appeal – Conviction – Applicant convicted of three charges of trafficking in a drug of dependence, 1,4-butanediol (‘1,4-BD’) – Applicant gave evidence in his defence – Prosecution permitted to re-open case and introduce rebuttal evidence before cross-examination of the applicant completed – Admission of rebuttal evidence did not amount to a miscarriage of justice – Prosecution could not have reasonably foreseen evidence given by applicant – Extension of time in which to apply for leave to appeal granted, but leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Trial judge refused defence counsel leave to confer with applicant during cross-examination – Whether refusal was an irregularity in the trial resulting in a substantial miscarriage of justice – Extension of time in which to apply for leave to appeal granted, but leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Three charges of trafficking in a drug of dependence in not less than a commercial quantity – Quantities of 1,4-BD between 400 and 8,000 times commercial quantity threshold – Maximum penalty 25 years’ imprisonment – Applicant directing mind of sophisticated operation with sole motivation for financial gain – Total effective sentence 17 years and 10 months’ imprisonment with non-parole period of 12 years and 10 months – Whether sentence manifestly excessive – Mitigating factors of youth, no prior convictions, delay and COVID-19 burden of imprisonment – Totality – Co-offender who played less substantial role and had benefit of other mitigatory factors sentenced to 8 years’ imprisonment – Total effective sentence not wholly outside range open to trial judge – Sentence did not breach principle of parity – Extension of time in which to apply for leave to appeal sentence refused.
Criminal Procedure Act 2009, s 233; Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565; Lawrence v The Queen (1981) 38 ALR 1; R v Chin (1985) 157 CLR 671; Alfarsi (a pseudonym) v The Queen [2021] VSCA 283, considered.
---
| Counsel | |||
| Applicant: | Mr CT Carr SC with Ms CA Boston | ||
| Respondent: | Mr CB Boyce KC with Mr GB Buchhorn | ||
Solicitors | |||
| Applicant: | Milides Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA:
Introduction
After a trial of almost five weeks’ duration, on 24 September 2019 a jury in the County Court found the applicant guilty of three charges of trafficking in a drug of dependence, 1,4-butanediol (‘1,4-BD’), in not less than a commercial quantity.[1] He was subsequently imprisoned.[2]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is 25 years’ imprisonment.
[2]Following a plea in mitigation, on 26 June 2020 the judge sentenced the applicant to five years’ imprisonment on charge 1; 15 years and 10 months’ imprisonment on charge 2; and eight years imprisonment on charge 3. One year of the sentences on each of charges 1 and 3 was ordered to be served cumulatively with the sentence on charge 3, the base sentence. The total effective sentence was thus 17 years and 10 months’ imprisonment, upon which the sentencing judge fixed a non-parole period of 12 years and 10 months.
On charge 3, the prosecution case against the applicant was that, on 14 June 2016, he possessed a large quantity of 1,4-BD for sale,[3] or was complicit with others in the movement of that drug to the ultimate consumer in accordance with the common law concept of trafficking.[4] In particular, the prosecution alleged that, in the early hours of 14 June 2016, the applicant rented a white Toyota HiAce van (‘HiAce’) from a vehicle rental business, Mini Koala Car Rentals (‘Koala’), located in Bell Street, Preston, which was then used by him and co-offenders to transport the drugs between different premises.
[3]See the definition of traffick in s 70(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]See, e.g., R v Holman [1982] VR 471, 475–6; R v Giretti (1986) 24 A Crim R 112, 125–6.
A remarkable feature of the trial, around which the principal issue touching conviction in this Court revolves, is that, against the background of the applicant having given particular evidence-in-chief concerning charge 3, the judge permitted the prosecution to re-open its case — after the prosecutor had already embarked upon her cross-examination of the applicant — so as to introduce ‘rebuttal’ evidence from two police surveillance witnesses.
In this Court, the applicant sought an extension of time within which to seek leave to appeal against both conviction and sentence, and leave to appeal against both.
Ultimately, the applicant relied on three grounds with respect to conviction. Renumbered for the sake of convenience, the grounds are as follows:
1 The learned trial Judge erred in granting leave to the prosecutor to call evidence in reply on the basis that the accused had given evidence that could not reasonably have been foreseen by the prosecution.
2 There was an irregularity in the trial, which resulted in a substantial miscarriage of justice, by reason of:
(a) The prosecutor relying upon the following propositions as to the course of the proceedings in support of the application, each of which was incorrect:
(i) it was always disputed that the applicant was the person who hired the van from Mini Koala Car Rentals;
(ii) the applicant’s evidence-in-chief was the first time that the prosecution had heard that the applicant now said he did hire the van;
(b) Defence counsel failing to correct those incorrect statements;
(c) The learned trial Judge determining the application on the basis of the incorrect propositions identified above.
3 The learned trial Judge preventing the applicant and his counsel communicating in relation to the Crown’s application to re-open the Crown case amounted to a fundamental irregularity in the trial, and thus gave rise to a substantial miscarriage of justice.
As I have indicated, the principal issue raised by the grounds is whether a substantial miscarriage of justice was occasioned by the judge permitting the prosecution to call evidence in reply after the applicant had given evidence. That issue turns on whether the applicant had given evidence which could not reasonably have been foreseen by the prosecution; and in particular, whether the applicant’s evidence-in-chief was the first time that the prosecution had been apprised of the fact that the applicant agreed that he was the person who had hired the HiAce from Koala. It will also be necessary to examine the trial judge’s direction forbidding defence counsel from communicating with the applicant.
For the reasons that follow, I consider that the grounds 1 and 2 must succeed, and that the applicant’s convictions cannot be permitted to stand. I would therefore grant the extension of time; grant leave to appeal against conviction; allow the appeal; set aside the applicant’s convictions; and order a new trial.
The prosecution evidence
Overview
So as to understand the issues raised by the grounds, it is necessary to summarise the main features of the evidence at trial. In so doing, I note the unhappy fact that the trial that resulted in the applicant’s conviction was the fifth trial that he had faced, juries in the previous four trials having been discharged without verdict. For present purposes, it is sufficient to observe that the first and second, and the fifth, of the applicant’s trials were conducted before different judges by different prosecutors.
Each of the three charges on which the applicant was convicted arose out of an investigation, codenamed ‘Operation Merlin’, conducted by the Victoria Police Drug Taskforce, which culminated in the arrest of a number of people and the seizure of over 3,800 kilograms of 1,4-BD on 14 June 2016. The prosecution case at trial was that the applicant imported 1,4-BD into Australia from China on two occasions in 2015 using a company, SAA Cleaning Services Pty Ltd (‘SAA’), of which he was the sole director, secretary, and shareholder. Earlier, the applicant had taken steps to register SAA as an importer of industrial chemicals with the Department of Health.
Charge 1
Evidence in the trial revealed that, on 11 May 2015, SAA placed an order with Tai’an Health Chemical Company Ltd (‘Tai’an’) located in Tai’an, China, for one pallet of
1,4-BD for USD $1,400 (or AUD $1,812.01). Tai’an packaged the order of 1,4-BD into four 200 litre drums. The shipment arrived in Australia on 13 July 2015.
The evidence showed that the applicant enlisted the services of Austorient Freight Services (‘Austorient’) to deal with the logistics involved in importing the drums into Australia. Correspondence from the applicant to Austorient reveals that he enquired about the shipment’s progress in late June 2015, and was told it had been delayed. An Austorient tax invoice confirms a shipment of ‘1,4 Butanediol’ supplied by Tai’an was billed to SAA at an address in Glenora Avenue, Coburg (‘the Coburg address’), the family home where the applicant resided. Payment of $1,480.90 was required. That amount was paid in cash amounts of $900 on 9 July 2015 and $581 on 10 July 2015.
A tax invoice for $806.76 from Famous Pacific Shipping Vic Pty Ltd dated 2 July 2015 was also issued to SAA.
As I have said, the shipment arrived in Australia on 13 July 2015. It was intercepted by Australian Border Force officers, who determined the consignment weighed
888 kilograms (including the barrels).
The shipment was picked up from Australian Container Freight Services at 7.06 am in the morning of 13 July 2015, and transported on a truck directly to the Coburg address, where the driver assisted in unloading four silver-coloured barrels from the rear of the truck into a garage at the premises. An Austorient Delivery Docket shows that the goods were received by SAA at the Coburg address on 13 July 2015, and that the applicant signed for them.
Charge 2
On 29 September 2015, SAA ordered 16 metric tonnes of 1,4-BD from Tai’an. Bank records showed that $15,000 cash was deposited into the SAA bank account that day, and $20,000 was deposited into the applicant’s personal bank account. The evidence showed that the applicant then authorised the transfer of AUD $37,229 to Tai’an.
According to Tai’an, the 1,4-BD cost USD $1,629 per metric tonne, with a total price of USD $26,064. Based on the applicable exchange rate, the total price was the equivalent of approximately AUD $37,229.
An Austorient tax invoice in the amount of $5,659.17, billed to SAA, confirms a shipment of 1,4-BD was expected to arrive on 22 November 2015. An invoice for $5,700 was paid in cash on 23 November 2015. The total weight of the consignment was 17,760 kilograms, including barrels. There were 80 drums of 1,4-BD in the shipment, made up of 20 pallets each containing four drums.
On 27 November 2015, the consignment arrived in Australia. The applicant was then required to pay $5,659.17 in additional charges before the goods could be released. This charge was billed to SAA and paid in cash on 23 November 2015.
Consistently with the applicant’s instructions, the consignment was delivered to Neutral Warehouse that same day, 27 November 2015. It was then collected by the applicant in four separate lots. The first collection was on 27 November 2015, and the other three collections were on 30 November 2015.
On 30 November 2015, the applicant also ordered 5,712 one litre bottles, together with 6,000 caps, from FPC Food Plastics. The order was placed in the name of ‘Sam’ and a mobile telephone number registered to the applicant was provided. On 2 December 2015, the applicant and another man collected the order. The applicant made a cash payment of $2,519.40, and four pallets containing the bottles were loaded onto a truck.
A few days later, on 8 December 2015, the applicant enquired about ordering 2,000 boxes from Australia Corrugated Packaging (‘ACP’), which he said were to be used to carry bottles. He gave specific dimensions and told the ACP manager the boxes were required to hold six bottles each. On 11 December 2015, the applicant attended ACP and ordered 2,030 cardboard boxes. He then collected 1,000 boxes at a cost of $638, which he paid in cash. The applicant returned to ACP on 15 December 2015, and collected the remaining 1,030 boxes, for which he paid $643 in cash.
At trial, the prosecution alleged the boxes and bottles were used to hold and store 1,4-BD which police later seized from various locations including: a storage area in a florist’s premises, ‘John’s Flower Box’, at 170–176 Lygon Street, Brunswick East, rented by Khaled Moustafa (‘Moustafa’); premises, ‘Adams Fruit and Vegetable, occupied by Munir Omer (‘Omer’), situated at 296 Racecourse Road, Flemington; a public self-storage facility, ‘Public Self Storage’, at 7 Ashley Street, Braybrook, also leased by Moustafa; and the HiAce, which was being used by Moustafa.
The prosecution case on charges 1 and 2 was that the applicant trafficked in a commercial quantity of a drug of dependence, 1,4-BD, that trafficking being constituted either by possession for sale or according to common law principles. Hence, the prosecution alleged that the applicant participated in the progress of the illicit goods from source to consumer in a commercial setting, with contact between the applicant and at least one other person.
Charge 3
With respect to charge 3, the prosecution case was that, in the early hours of 14 June 2016, the applicant was involved (with others) in the movement of boxes and drums containing 1,4-BD to various locations round Melbourne. In part, that movement of the substance was accomplished using the white HiAce rented from Koala in Bell Street, Preston. Police seized 1160 kilograms of 1,4-BD from the HiAce (and more than 3000 kilograms from elsewhere). The applicant denied any involvement in the acts of possession involved in the movement of the drums and boxes.
Khaled Moustafa
In essence, the applicant’s ‘defence’ was that SAA was a legitimate industrial cleaning company, and that he had imported and possessed the relevant 1,4-BD for lawful use as a cleaning product.
The principal prosecution witness refuting the applicant’s defence was Moustafa, who had met the applicant in or about 2014. He gave evidence that he knew the applicant as ‘Sam’. Moustafa said he saw some drums at the Coburg premises in November 2015. The applicant told him it was a cleaning product, but he was not going to use it for that purpose. According to Moustafa, the applicant told him that SAA was a front permitting the importation of 1,4-BD which, when swallowed, has the same effect as the drug ‘GHB’. The applicant told him that he was going to sell it by the bottle. Moustafa said he had seen the applicant melting down the substance so it could be put in bottles.
Moustafa’s evidence was that he had organised a storage unit in Braybrook. When the applicant found out about it, he asked to move some drums and boxes there. Moustafa permitted this to occur on the basis that the applicant pay half the rent. The applicant then filled the unit with 1,4-BD. Further, in February 2016, the applicant negotiated the rental of storage space at a florist shop. Moustafa said he helped the applicant move boxes of 1,4-BD to the storage space in the shop.
On 13 June 2016, Moustafa had a physical ‘scrap’ with an individual at the florist shop (referred to in evidence as a ‘kidnapping’). Subsequently, when he and the applicant drove past the shop, it was apparent that police had been contacted. He and the applicant decided to move the boxes and drums from Braybrook, because a receipt left at the florist shop could link Moustafa to the Braybrook premises.
According to Moustafa, the applicant and Omar Bchinnati (‘Bchinnati’) picked him up from Lygon Street, Carlton, later that evening in a silver Toyota Corolla. Moustafa said that they were trying to work out where to store the 1,4-BD. That was when he telephoned Munir Omer (‘Omer’). His evidence was:
[We] were trying to work out where to store the 1,4 BD, that’s when I came up with meeting with [Omer]. I rang him. I rang him a few times. I rang him a heap of times. He eventually answered, and I said I need to move some stuff into his backyard, and it will only be for a night. That’s when [the applicant] rang the van to hire.
I pause to note that in an intercepted telephone conversation between Moustafa and Bilal Allouche (‘Allouche’) at 11.21 pm on 13 June 2016, Moustafa asked Allouche whether he could assist in urgently hiring a van or a truck. He and the applicant then went to Allouche’s premises, but Allouche could not assist. It appears that Moustafa then drove the applicant to the Coburg premises, from which the applicant left to hire a van.
Moustafa’s evidence was that they moved boxes and drums. He said that the applicant and Bchinnati were in the Toyota Corolla, and he and Omer were in a van hired by the applicant. They collected boxes from the storage unit in Braybrook (and from another storage unit), and transported them to Omer’s fruit shop in Racecourse Road, Flemington. Upon returning to the Braybrook unit a second time, Moustafa said, police arrested him and Omer (and two helpers, Patrick Formosa and Ahmed Inusah) inside the unit. The applicant and Bchinnati remained outside in the Corolla keeping an eye out for the police. In CCTV recordings shown to him by the prosecutor, Moustafa identified himself as the driver of the HiAce that the applicant had rented. He also gave evidence that certain footage showed the applicant and him moving backwards and forwards to the van, and that other footage showed the applicant opening the rear door of the van and jumping in.
I need not refer to Moustafa’s cross-examination by defence counsel in detail, save to say that counsel challenged Moustafa on the overwhelming bulk of his evidence-in-chief, and put to him that he was a drug dealer who had thrown the applicant ‘under a bus’ to get a sentencing discount. The cross-examination concluded with the following ‘puttage’:
[DEFENCE COUNSEL]: … Now, to be clear, Mr Moustafa, I suggest to you that Mr Obian was not present at any of the establishments, [the Braybrook storage unit] or anywhere else you went on the evening of 13, 14th June 2016. What do you say to that?---That’s not true because he was present.
He did not assist, he was not present and did not assist you or anyone else in the moving of materials on the evening of 13th, 14th June of 2016. What do you say to that?---That’s not true. He assisted and he was there present. There was footage of it as well, um, the other day.
So you say?---There was footage, we’ve seen it.
And finally, Mr Moustafa, you agreed that you were not present at the time the [HiAce] was hired?---That’s correct.
The van hire
Wei Wei Wang, a Koala employee, gave evidence in the first trial. A recording of her evidence — which had been led from her by another prosecutor — was played to the jury. Ms Wang’s evidence was that, ‘just after midnight’ on 14 June 2016, a ‘very fat’ man urgently wanted to rent a ‘car’ because he wanted to move boxes. He left because he did not have cash for the necessary bond, but then returned with money about a half hour later. The man produced a South Australian driver’s licence in the name ‘Saer Pbian’,[5] and produced what he said was his brother’s bank card. He paid an $800 cash bond, and provided a mobile telephone number.[6] Ms Wang debited $30 from the bankcard. After the paperwork was completed,[7] the man got into the driver’s seat of the vehicle he had hired — a white Toyota HiAce van — and drove away.
[5]The printed name on the licence is ‘Saer Pbian’, but the handwritten signature of the licence holder appears to be ‘Saer Obian’. In his evidence, the applicant explained that ‘Pbian’ was a ‘misprint’.
[6]This number was connected to a Vodafone account registered to ‘Saer Obian, Glenora Avenue, Coburg’.
[7]The relevant Agreement To Rent records the customer as being ‘Saer Pbian’.
Under cross-examination by the applicant’s counsel, Ms Wang said that she compared the photograph on the driver’s licence with the man, and it was a ‘match’.[8] Significantly, having elicited this evidence, counsel for the applicant did not seek to traverse it through further cross-examination. Thus, for example, counsel did not suggest to Ms Wang that she might have been mistaken.
[8]Given the manner in which the evidence was adduced, s 114 of the Evidence Act 2008 had no application.
I note that, a few hours after the van was hired, at 4.45 am on 14 June 2016, surveillance police observed the hired van outside Omer’s premises where a quantity of 1,4-BD was subsequently located. Cardboard boxes were being unloaded from it and placed in a shed. Moreover, when police intercepted the HiAce in Albion at 5.30 am — Moustafa was driving and Omer was a passenger — they located a large number of plastic bottles and containers containing 1,4-BD.
The applicant’s evidence
Evidence-in-chief
As I have mentioned, the applicant gave evidence. He said that when a student studying civil engineering at Swinburne University in 2013, he started a cleaning company, SAA, with two friends. At the time he was living at the Coburg premises with his parents and his brother and sister.
The applicant said that one of his contractors, John Speziale, who got him cleaning jobs and trained and guided him, told him he could save a lot of money if he imported his own chemicals and supplied his cleaners with them. As a result, he searched the internet, and found ‘a whole range of cleaning products’, including 1,4-BD. As a ‘test run’, he purchased 800 kilograms — ‘the minimum order’ — from a Chinese exporter. For the purposes of importing the chemical, the applicant said, he registered with the National Industrial Chemicals Notification and Assessment Scheme (‘NICNAS’), and organised freight importers and customs agents. The 800 kilograms was subsequently delivered to the Coburg premises.
According to the applicant, the exporter told him to dilute the 1,4-BD with water (or alcohol for use on glass). He later ‘obtained some packaging to package the chemical into bottles’, the chemical contained in drums being ‘half solid, half watery’. The applicant said he was instructed by the exporter that he needed to heat it up so he could pour it out of the drums. To do so he purchased a heating element and an electric fluid pump. He then transferred the chemical into one litre plastic bottles, and packed them six per box into cardboard boxes. The cartons were then delivered to his workers.
The applicant said the first shipment of 1,4-BD was stored at the Coburg premises, but the second was stored at Braybrook. He imported 16 tonnes in the second shipment because ‘when you purchase in bulk it’s a lot cheaper’, and he thereby saved thousands of dollars in shipping costs. Pallets containing the chemical were delivered to the Braybrook storage facility rented by Moustafa — where the applicant was to pay half the rent — and the applicant unloaded them using a forklift.
In his evidence, the applicant denied being at the florist shop on 13 June 2016 with Moustafa; being involved in a kidnapping; or going to Lygon Street. He said he took his parents to the airport in the evening then went home. Later that evening he went out for ‘about an hour, give or take’. The applicant explained that Allouche had asked to borrow his van, but he told Allouche that he needed it for work. Allouche then asked the applicant to hire a van for him. The applicant said that Allouche could not do so because he only had a probationary driver’s licence, and one needed to have a full licence in order to hire a van. The applicant said that he caught a taxi to the rental premises and was told that the rental fee was $140 per day, and a bond of $800 was required. As a result, he took a taxi to Allouche’s premises, before returning to the rental premises with a driver’s licence — which had the misprint ‘Pbian’ — a debit card, the $800 bond and $200 hiring fee. Moustafa’s evidence that he had dropped the applicant at home was ‘impossible’, because he ‘never saw’ Moustafa that night. The applicant rented the van and ‘left it’ with Allouche. He assumed that Allouche had returned it when he was finished with it.
Apart from some minor matters, the applicant’s evidence-in-chief effectively concluded as follows:
[DEFENCE COUNSEL]: Now, globally, what do you say about the evidence of Mr Moustafa concerning the allegations against you?---He’s a liar.
Cross-examination
After the applicant’s evidence-in-chief concluded, the prosecutor did not immediately make the application to re-open the prosecution case, central to the case in this Court.
Indeed, rather than immediately making the application, the prosecutor instead had the applicant confirm his evidence that he had rented the van because Allouche had called and asked him to do so. The prosecutor also had the applicant confirm that he had initially attended the vehicle hire business, and had returned to Allouche’s premises before once more attending the vehicle hire premises. He had then rented the van and left in it. Having had the applicant confirm this evidence, the prosecutor elicited the following: first, the applicant would have gone to Allouche’s premises sometime before 12.30 am in order to obtain the bond and money for the rental; secondly, the applicant agreed that after he returned to Koala by taxi, and $30 was debited to his credit card at 12.42 am; and, thirdly, after the paperwork was completed, the applicant drove the HiAce to Allouche’s house, arriving at approximately 12.55 am.
It was only then that the prosecutor made the application to re-open the prosecution case.
The application to re-open the prosecution case
Having cross-examined the applicant to elicit the evidence referred to above, the prosecutor made ‘an application to call rebuttal evidence’, on the basis that it was ‘was always disputed’ that the applicant was the person who hired the HiAce from Koala. The applicant, the prosecutor contended, had always denied that he ‘was there’ at Koala. Ms Wang ‘was cross-examined in that vein trying to ascertain what she could recall of the man’. The proposed rebuttal evidence was relevant to the applicant’s ‘credibility’, in that the evidence of police surveillance operatives contradicts the applicant’s evidence — first given under cross-examination — as to ‘timelines’.
The prosecutor submitted that the applicant’s evidence-in-chief was ‘the first time that we’ve heard that Mr Obian now says he did hire this van’. It ‘has always been maintained through the various trials that have gone before, that he denies being at Mini Koala Car Rentals’. The prosecution had no notice that he had agreed that he hired the van, the prosecutor contended, and submitted: ‘In fact, quite the opposite. It’s [said] in the defence response that in fact he didn’t hire [the van] at all’. Further, the prosecutor agreed with the judge’s observations that ‘the Crown could not reasonably have expected to have to meet this defence’, and ‘in fact, it’s actually contradicted by the defence response, and there’s been no leave sought to vary from it’.
Sadly, the prosecutor’s submissions were wrong in material respects, since, in the course of the applicant’s second trial, defence counsel had informed the trial judge that the defence did not challenge the evidence that the applicant had hired the HiAce from Koala. Moreover, email correspondence from the applicant’s solicitor to the prosecution’s solicitor unmistakably admitted that he had hired the van. It is a lamentable fact, however, that — for reasons that have not been explained (either to the trial judge or this Court) — the applicant’s counsel did nothing to correct the misapprehension shared by the prosecutor and judge.
As I will discuss in greater detail when considering the third ground, immediately after the prosecutor had completed her submissions in support of the application to re-open the prosecution case, defence counsel sought, and was refused, leave to speak to the applicant. In discussion, the judge told counsel that he needed ‘to indicate … where there’s anything prior to the close of the Crown case that would put the Crown on notice that this was going to be part of the defence’. Regrettably, however, counsel did not refer that judge to the concession made in the second trial or his instructing solicitor’s email. Counsel eventually submitted that the judge should exclude the proposed evidence under s 137 of the Evidence Act 2008, on the basis that any probative value that it possessed was outweighed by the risk of unfair prejudice.
In reply, the prosecutor submitted that the applicant’s evidence concerning the van’s hiring ‘is fundamental to Charge 3 and could contaminate Charges 1 and 2 if the jury accept that Mr Obian, without challenge hired the van’. She submitted that ‘it goes to a fundamental fact that is in issue’, in circumstances in which ‘the Crown has not had any notice that this was the way it was going to go’. The prosecutor said: ‘I could have called surveillance operatives if I thought that it was going this way’.
The judge’s ruling
At the completion of counsel’s submissions, the judge ruled on the application to re-open the prosecution case and call rebuttal evidence forthwith. It is convenient to set out the ruling (which was in two parts) in full:[9]
[9]Emphasis added.
Yes, well I will grant leave pursuant to s 233(2) of the [Criminal Procedure Act 2009], for the Crown to reopen its case and lead evidence from Surveillance Operative 116 and 26. Insofar as 26 is concerned, I will grant leave to lead evidence of the general background and then the observations made at
81 Harding Street, Coburg, the home of Mr Bilal Allouche between 12.12 am and 1.26 am. And in the case of Surveillance Operative 116, general background, only so much as necessary for the jury to understand the evidence. And the observations of that operative at 81 Harding Street, Coburg from 0003 to 0126.
I am satisfied that the accused gave evidence which could not reasonably have been foreseen by the prosecution having regard to the response of the accused to the summary of the prosecution opening and the response of the accused to the notice of pre-trial admissions. There was no response to the notice of pre-trial admissions, was there? No. As served on the prosecution and filed in court. And so I will allow the Crown to lead that evidence in reply.
I note that s 233(2) of the [CPA] does not provide any guidance on how that discretion is to be exercised other than that it can only obviously be exercised where the evidence in the defence case could not reasonably have been foreseen by the prosecution. And I note that the Bench Notes in the Criminal Procedure manual say this:
‘The prosecution may reopen its case if the accused gives evidence that could not reasonably have been foreseen by the prosecution having regard to the defence response to the summary of the prosecution opening and the defence response to the notice of pre-trial admissions. At common law the prosecution could only reopen its case in special or exceptional circumstances and not if the need for the evidence ought reasonably to have been foreseen.’
And it quotes Chin,[[10]] Lawrence[[11]] and Killick.[[12]] And then this is the comment by the author of the Bench Notes:
‘It appears that s 233(2) of the CPA 2009 lowered the threshold for a judge to allow the prosecution to reopen its case.’
However, in my view this case falls into that exceptional situation where the evidence that is central to the Crown’s case on Charge 3 had absolutely no reasonable foresight of this evidence being led and it has available to it credible evidence which would allow a jury to find that the defence evidence was contradicted by the Crown evidence that is sought to be led in reply.
And, consequently, had I been required to exercise the discretion at common law I would have done so, and I would have done so for the reasons which will become apparent from my discussion with counsel in the course of this application which I incorporate into these reasons.
…
In the circumstances I will allow the Crown to reopen its case for this restricted purpose between the end of the cross-examination of Mr Obian and the re-examination of Mr Obian. That is a rather unusual way to go about it, but it seems to me that a trial judge has a very broad discretion to ensure the accused receives a fair trial and that power extends to the timing of allowing the Crown to reopen its case and the timing of the Crown closing its case and where that fits in with the defence case.
And so on that basis it is my view that in order to minimise the prejudice that will inevitably flow to the defence, I will require that Crown case to be opened and closed following the cross-examination of Mr Obian and before the re-examination of Mr Obian.
[10]R v Chin (1985) 157 CLR 671 (‘Chin’).
[11]Lawrence v The Queen (1981) 38 ALR 1 (‘Lawrence’).
[12]Killick v The Queen (1981) 147 CLR 565 (‘Killick’).
After the judge delivered the ruling, there was the following exchange with counsel:[13]
[DEFENCE COUNSEL]: Your Honour, I will need to explain this … to Mr Obian and I would seek leave - - -
HIS HONOUR: Yes. Yes, look, I will give you leave to explain what’s happened. You are not to go into what evidence he might give about all this.
[DEFENCE COUNSEL]: I understand, yes.
HIS HONOUR: And I would ask that that occur in the presence of your instructing solicitor.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: And I'll give you leave to simply explain to him the ruling I’ve given and what the consequences of that ruling are and how matters will proceed, but you are not to go into any question in relation to his evidence or instructions in relation to all that.
[DEFENCE COUNSEL]: Thank you, Your Honour.
HIS HONOUR: Yes. And it must occur in the presence of an instructing solicitor. …
[13]Emphasis added.
The applicant’s further cross-examination
When the prosecutor resumed her cross-examination of the applicant the next morning, among other things she questioned him about his use of the South Australian licence when hiring the HiAce; his business activities; and his relationship with Moustafa and John Speziale. The tenor of much of the cross-examination may be gleaned from the following:
[PROSECUTOR]: No, what I’m putting to you is, to use this, your business was so small and was not lucrative at all from 2013 to 2015, and then from 2015, you had this idea that you would import 1,4-Butanediol under that originally legitimate business in order to hide this drug in plain sight and get it into the country?---I disagree with that.
…
You see what I’m trying to establish here is that you in fact imported what comes to over 17,000 litres of 1,4-Butanediol for human consumption and not for as a cleaning product. You disagree?---Yes. I disagree.
And knew that you could make over $17 million if you had sold it for simply $1,000 a litre, so you knew it was extremely lucrative when you imported it, you disagree?---I disagree with that.
Defence counsel seeks to have ruling set aside
After the applicant’s cross-examination had concluded, counsel for the applicant unsuccessfully sought to ‘renew’ his application that the ‘Crown should not be allowed to re-open or in the alternative should not be allowed to lead the evidence of the surveillance operatives’. He relied on eight factors as follows:
So it’s firstly submitted that the evidence intended to be led by the surveillance operatives is not true rebuttal evidence. Two, the evidence is not very special or exceptional and is marginal. Three, the evidence does not disprove or rebut the evidence of Mr Obian. Four, there is still a relevant time frame in which
Mr Obian could have delivered the van to Allouche, as indeed he says he did. … Five, allowing the Crown to reopen draws attention to the issue and gives it an importance it does not warrant. As a result it suffers undue prejudice by that fact. Six, if the evidence that has now been sought to be led had have been given during the trial it would not have been fatal to the evidence of Mr Obian. There would only merely have been a cross-examination as to the obvious hiatus in time which in fact can’t be challenged. There is no other surveillance operative available to rebut the observations or the evidence of Mr Obian and that’s not fatal. … Seven, now it could be fatal to the interests of the accused, given an undue significance that is not warranted and that has respect to the reopening aspects. … And finally with respect to the reopening aspect clearly the prejudicial affect outweighs any probative value of the evidence for the purposes of reopening.
Evidence of surveillance operatives
After defence counsel’s unsuccessful attempt to have the trial judge revoke his ruling, the prosecutor applied in the presence of the jury ‘to reopen the Crown case to call Surveillance Operative 116’. The judge granted that application ‘for the reasons … previously announced’.
Surveillance Operative 116 then gave evidence. He told the jury that he was attached to the Victoria Police State Surveillance Unit, and was on duty on 13 June 2016 into the morning of 14 June 2016. At 12.03 am on 14 June 2014, he said, police checked the vicinity of Allouche’s address at 81 Harding Street, Coburg. It was noted: ‘Nil known vehicles or persons sighted’. Later, at 12.23 am, Allouche was seen in the front yard of those premises talking on a mobile telephone. At around 12.26 am, Allouche entered a car in Harding Street that travelled to a ‘7-Eleven’ store at the corner of Bell and Elizabeth Streets, Coburg, arriving at 12.27 am. Allouche then got out of the car and spoke on a mobile phone.
At 12.36 am, the operative said, Allouche was observed to enter the driver’s seat of the car and drive off alone, arriving at ‘Uncle Joe’s Kebabs’, 995 Sydney Road, Coburg, at 12.38 am, where he approached the counter. A few minutes later, at 12.44 am, Allouche was observed to enter the driver’s seat of the car located in the carpark of Uncle Joe’s Kebabs and drive off alone. The car arrived at 81 Harding Street at 12.45 am. Allouche then exited the vehicle and approached the front door. Surveillance ceased at 1.26 am.
Self-evidently, the evidence of the surveillance operative tended to cast considerable doubt on the applicant’s evidence, given in cross-examination, that he went to Allouche’s premises sometime before 12.30 am in order to obtain the bond and money for the rental; that he returned to Koala where his credit card was debited at 12.42 am; and that he drove the HiAce to Allouche’s house, arriving at approximately 12.55 am.
The applicant’s re-examination
After some brief (and somewhat ineffective) cross-examination of the surveillance operative, the applicant was recalled and re-examined by his counsel.
Among other things, the applicant said that it was only after he received the hand-up brief of evidence that he realised that Moustafa must have ‘stolen’ the 1,4-BD from the Braybrook storage unit. Referring to a debit transaction receipt, he gave evidence that at 12.42 am he was at Koala. The re-examination concluded as follows:
[DEFENCE COUNSEL]:So then – when you were being cross-examined?---Yes.
My learned friend asked you to – in fact a number of occasions, to press upon you in the timing?---Yes.
Of when you got back to – or when you say you left those premises and arrived and your contact with Mr Bilal Allouche - - - ?---I just gave an estimate based on the distance from my house to the Koala Car Rentals and I added it to the receipt. Just an estimation.
All right. And do you – and you maintain your evidence with respect to the circumstances of the hiring of that van on behalf of Mr Allouche?---Of course I do.
Grounds 1 and 2: Permitting the prosecution to re-open its case
In my opinion, the re-opening of the prosecution case and the adduction of the surveillance evidence would, in the jury’s eyes, have been devastating to the applicant’s credit, in circumstances in which — as counsel put it in argument in this Court — the defence case ‘rested entirely upon his believability in a practical sense’. I consider that the jury would likely have reasoned that the applicant had been telling lies in his evidence; that he had been caught out; and that the prosecution was being permitted to lead evidence to demonstrate that he had lied.
The application to re-open the prosecution case to call ‘rebuttal’ evidence was governed by s 233 of the Criminal Procedure Act 2009 (‘CPA’), which provides:
233 Introduction of evidence not previously disclosed
…
(2) If, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution having regard to —
(a) the response of the accused to the summary of the prosecution opening; and
(b) the response of the accused to the notice of pre-trial admissions—
as served on the prosecution and filed in court, the trial judge may allow the prosecutor to call evidence in reply.
(3) Nothing in this section limits any other power of the trial judge to allow the prosecutor to call evidence after the prosecutor has closed the prosecution case.
Plainly, s 233(2) confers a discretion on a trial judge to allow the prosecutor to call evidence ‘in reply’. No matter what else might be said of its parameters, it is clear that the discretion may only be exercised in a manner adverse to the accused if he or she gives evidence which could not reasonably have been foreseen having regard to, first, the accused’s response to the summary of the prosecution opening; and, secondly, the response of the accused to the notice of pre-trial admissions.
The need for the accused to provide the relevant responses arises from the provisions of ss 182 and 183 of the CPA. Section 182(1) requires the DPP, at least 28 days before the listed trial date, to serve on the accused and file in court a summary of the prosecution opening and a notice of pre-trial admissions. Sub-section (2) requires the summary of prosecution opening to outline the manner in which the prosecution will put the case against the accused, and the acts, facts, matters and circumstances being relied on to support a finding of guilt. By sub-section (3), the notice of pre-trial admissions must identify the statements of the witnesses whose evidence, in the opinion of the DPP, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters
In turn, s 183(1) requires the accused to serve on the prosecution both a copy of the response of the accused to the summary of the prosecution opening and a copy of the response of the accused to the notice of pre-trial admissions. By sub-section (2), the response of the accused to the summary of the prosecution opening ‘must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’; and sub-section (3) provides that the response of the accused to the notice of pre‑trial admissions must indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken. Further, the effect of s 184 is that, if the accused ‘intends to depart substantially at trial’ from the filed and served responses, he or she must so inform the court and the prosecution ‘in advance of the trial’; and ‘if the court so orders, must inform the court and the other party of the details of the proposed departure’.
Of central importance to the resolution of the present case, by the time that the applicant gave evidence in the present trial — the fifth trial — his counsel had, in the course of the second trial, announced in open court that the applicant did not challenge the fact that he had rented the HiAce from Koala. Thus, in a break in the cross-examination of Moustafa by the applicant’s counsel in the trial on 19 November 2018 — as I have indicated, the trial was conducted by a different prosecutor before a different judge — there was the following exchange:[14]
[14]Emphasis added.
HER HONOUR: Just before we move from you to [co-accused’s counsel], I just want to be sure that I’m clear about what’s been put with regard to this man.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: Because it’s not been put to this witness that your client did not rent that van.
MR BILLINGS: Well he wouldn’t know.
[PROSECUTOR]: He has said several times he did.
HER HONOUR: Well he said that he asked Sam to rent a van and Sam turned up in a van, and when the woman from Ms Wang from Mini Koala Rentals gave evidence, you elicited from her in cross examination that she compared the photo on the licence to the photo to the person renting the van and in her opinion they were the same and that wasn’t challenged. So I just want to be clear, is it being challenged that your client rented the van?
[DEFENCE COUNSEL]: Rented the van, no.
HER HONOUR: Okay, thank you. I just wanted to make that clear. And that’s the van that was being used on the night [of 14 June 2016]?
[DEFENCE COUNSEL]: Yes. Yes.
It is plain from the exchange immediately above that, in an unambiguous response to a direct inquiry by the judge the applicant’s counsel made it abundantly clear that the applicant did not challenge the allegation that he rented the van. That he had done so may have escaped the prosecutor and judge in the instant trial, but the fact remains that counsel had unequivocally declared that the applicant had rented the van used to transport 1,4-BD.
Moreover, it was not disputed in this Court that in the course of the second trial, the applicant’s solicitors had provided a notice of alibi (albeit unsigned), dated
22 November 2022, to the prosecution, which asserted that the applicant ‘at all material times was at [the Coburg premises] on 13–14 June 2016 except for explained absences taking his parents to the airport, attending at a car rental establishment and returning home’. The notice provided to the prosecution instructing solicitor was forwarded by her to the police informant by email on 14 May 2019. Indeed, in an email to the prosecution instructing solicitor, dated 14 May 2019, the applicant’s solicitor had confirmed that the defence would be relying on the notice of alibi (which included his assertion of ‘attending at a car rental establishment’).
Of great significance, it appears that, in correspondence to the prosecution on 24 July 2019, the applicant’s solicitor had explicitly admitted that he had hired the HiAce van from Koala on 14 June 2019. Thus, on 17 June 2019, the prosecution served an amended summary of prosecution opening on the defence (although — whether by oversight or otherwise — it appears that the defence did not serve or file any formal amended defence response). More importantly, on 17 June 2019 the prosecution also served a notice of pre-trial admissions, seeking admissions which included, first, that the applicant hired the HiAce from Koala at 12.40 am on 14 June 2016 (paragraphs 37 to 41 of the notice); and, secondly, that a conversation took place between the applicant and Ms Wang in which the applicant said that he was moving boxes with the van (paragraph 42 of the notice). In an email to the prosecution instructing solicitor on
24 July 2019, the applicant’s solicitor stated unequivocally that all paragraphs of the notice were admitted, save for paragraph 42 (relating to the conversation). Hence, it was made plain that the applicant admitted that he had hired the HiAce from Koala at the time alleged.
As has been seen, however, the judge dealt with the prosecution application under s 223(2) of the CPA labouring under the misapprehension that there had been no response to the notice of pre-trial admissions. But there had been. In particular, the applicant through his solicitor had admitted the very matter about which the prosecutor told the judge the prosecution had not been given notice.
In light of the above, it is clear that the judge exercised the discretion reposing in him under s 223 on an erroneous basis. The prosecutor had made her application to re-open the prosecution case and call ‘rebuttal evidence’ on the basis that it was ‘was always disputed’ that the applicant was the person who hired the HiAce from Koala. Quite simply, that assertion was objectively untrue. The applicant had admitted the very fact which was said to have been ‘always disputed’. And in so far as the judge accepted that it had always been disputed, he was misled.
Although I accept that the prosecutor must have been ignorant of, or simply overlooked, the applicant’s admission that he had hired the HiAce from Koala on 14 June 2016, I do not regard that as being particularly significant. What is crucial is that the judge was misled on the key aspect which provided the springboard for the application to re-open the prosecution case, and that his exercise of discretion — founded, as it was, on a misapprehension as to that key aspect — was thereby irredeemably infected. It is thus plain that the judge’s purported exercise of discretion miscarried.
In my view, had the judge been made aware that the applicant had admitted the very matter which the prosecutor told him the applicant had not, I have no doubt that the judge would have exercised his discretion differently and refused the application to re-open the prosecution case. Thus, notwithstanding the failure of defence counsel to correct the prosecutor’s and judge’s misapprehension — perhaps he too had forgotten or overlooked his client’s admissions — I consider that there has been a substantial miscarriage of justice. As I have said, the evidence led from the surveillance officer would have been devastating to the applicant’s credit, in circumstances in which his credit was crucial to his defence on all three charges. In those circumstances, it is impossible to conclude that, absent the error or irregularity in his trial, the applicant’s conviction was inevitable.
Given that the judge’s discretion under s 223(2) of the CPA miscarried because he exercised it on an objectively false factual basis, there is no need to consider whether the judge’s exercise of discretion also miscarried on the basis that he approached its exercise (as the applicant’s counsel put it) ‘through the prism of the common law’. Indeed, in light of my conclusions as to the manner in which the judge was led to exercise his discretion under the section in error, I consider it to be unnecessary to determine whether the discretion under s 223 is informed by considerations similar to those that apply at common law.
For the foregoing reasons, grounds 1 and 2 have been made out. There has been a substantial miscarriage of justice such that the applicant’s convictions cannot stand.
I would grant leave to appeal against conviction; allow the appeal; set aside the convictions; and order a new trial.
Ground 3: The judge’s refusal to permit defence counsel to speak to the applicant
By his third ground, the applicant contends that the trial judge’s refusal to permit the applicant and his counsel to communicate in relation to the prosecution’s application to re-open its case amounted to a ‘fundamental irregularity’ in the trial, giving rise to a substantial miscarriage of justice.
After the judge ruled that the prosecution would be permitted to re-open its case, the applicant’s counsel indicated that he wished to speak to his client. As the following discussion shows, both defence and the trial judge seem to have thought that counsel required the trial judge’s permission to speak to the applicant, then under cross-examination. Perhaps significantly, as the extracted passage also demonstrates, counsel was reluctant to inform the judge of the nature of the ‘instructions’ he wished to obtain from his client:
[DEFENCE COUNSEL]: The usual rule with respect to speaking to one’s client in the course of cross-examination, this has now arisen, I need to get some instructions.
[PROSECUTOR]: If my friend wants to just — sorry.
HIS HONOUR: No. Well, why do you need instructions, [defence counsel]? We’re dealing with a matter of law. You have your instructions about the factual substratum we’re dealing with. What is it that you need to get instructions about?
[DEFENCE COUNSEL]: Well, - - -
HIS HONOUR: You don’t need to be instructed to resist this application.
[DEFENCE COUNSEL]: Not as a matter of - - -
HIS HONOUR: That’s part of your responsibility as counsel.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: You don’t need instructions from your client as to what the legal position is with regards to this. The facts are already out; we know what they are. Why do you need instructions?
[DEFENCE COUNSEL]: I’m not asking for instructions with respect to the legal submissions, but - - -
HIS HONOUR: What are you wanting to take instructions in regard to?
[DEFENCE COUNSEL]: Well, I don’t want to tell Your Honour.
HIS HONOUR: Well, I’m not going to give you that leave.
[DEFENCE COUNSEL]: All right.
HIS HONOUR: If you’re not going to tell me why you want to have an ability to speak with your client during cross-examination, if you want to keep that powder dry, then you don’t get the leave.
[DEFENCE COUNSEL]: All right. Yes.
I am not sure what counsel meant when he referred to the ‘usual rule’. It is clear, however, that he thought the ‘usual rule’ constrained him to seek the trial judge’s permission to speak to his client. (As will become clear, I do not consider there to be such a rule.) It is also clear that the judge was of the view that he had the power to prevent counsel from doing so. And it is clear, too, that counsel considered himself bound by the judge’s purported refusal of leave, and did not speak to the applicant in the period that intervened until the prosecution interrupted the applicant’s cross-examination by leading further evidence.
Shortly after he forbade defence counsel to speak to his client, the judge delivered the ruling permitting the prosecution to re-open its case. As I have mentioned, having ruled, the judge then purported to give leave to defence counsel to speak to his client to explain the ruling, but insisted that the explanation be given in the presence of counsel’s instructing solicitor. Counsel was forbidden, however, to discuss the evidence, as the passage set out above makes clear.[15]
[15]See [50] above.
I consider what occurred to be somewhat novel. So far as I am aware, there has never been any ethical or substantive rule in this State forbidding counsel from speaking to a client or other witness under cross-examination before cross-examination is complete. In my experience, the practice in this State has been that, on the relatively rare occasions in the course of a criminal trial counsel has perceived the need to confer with or speak to the accused or a witness under cross-examination, he or she would inform the cross-examiner and the judge (in open court) of his or her intention to do so, disclosing (at least in general terms) the reason for the need. It has never been a widely held view, however, that there was any need for counsel to seek the judge’s permission, let alone that the judge could forbid counsel from speaking to his or her client or other witness. Of course, on the infrequent occasions that it occurred, great caution has been exercised by counsel when speaking to the person under cross-examination — principally to avoid any perception that the witness’s evidence had been unfairly or improperly influenced — and counsel’s instructing solicitor was always present.
For the purposes of the current discussion, it is necessary to distinguish two things: first, any ethical rule which guides counsel in situations such as that under consideration; and, secondly, the powers that a trial judge in a criminal trial possesses to forbid an advocate from speaking to his client (or other witness) in the midst of uncompleted cross-examination.
With respect to ethical considerations, prior to the promulgation of codified professional rules for barristers, there was no rule in Victoria which forbade counsel from speaking to a witness under cross-examination (albeit that counsel was required to use discretion and take great care not to influence the witness’s evidence). In his work on the professional conduct of barristers, Sir Gregory Gowans described the position as follows:[16]
[16]Sir Gregory Gowans, The Victorian Bar — Professional Conduct, Practice and Etiquette (Law Book Co, 1979), 75. And see Sheppard, Communications with Witnesses Before and During their Evidence, (1987) 3 Australian Bar Review 28, 36–7.
Speaking to Witness under Cross-Examination
There is no rule which forbids counsel to speak to a witness under cross-examination, but counsel must use his discretion and take great care not to influence the witness’s evidence.[17]
[17]Minutes of Bar Council [16 November 1967].
Subsequently, the situation was formalised by rule 46 of the Victorian Bar Incorporated Practice Rules, which was in the same terms as the present rule 73 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.[18] Rule 73 provides:
A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:
(a) the cross-examiner has consented beforehand to the barrister doing so, or
(b)the barrister:
(i)believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference,
(ii)has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so, and
(iii)otherwise does inform the cross-examiner as soon as possible of the barrister having done so.
[18]The rules are made pursuant to the Legal Profession Uniform Law Application Act 2014.
By its terms, rule 73 permits a barrister to ‘confer’ with his or her client (or a witness called by the barrister) ‘on any matter related to the proceedings’ while the client (or witness) is under cross-examination, if, first, the cross-examiner has consented beforehand to the barrister doing so; or, secondly, the barrister believes ‘on reasonable grounds’ that ‘special circumstances … require such a conference’, and the barrister has informed the cross-examiner beforehand of the barrister’s intention to do so, or informs the cross-examiner as soon as possible of the barrister having done so. Significantly, however, the rule does not contemplate either that the cross-examiner’s antecedent refusal of consent, or, for that matter, a judge’s refusal of permission, imposes a prohibition on counsel from conferring with a client or witness under cross-examination. Rather, the rule sets out the prudent steps that a barrister should follow if doing so. It is plain, therefore, that there was no ethical constraint which would have prevented the applicant’s trial counsel from speaking to him prior to the prosecutor’s cross-examination being completed.
A more difficult question is whether the trial judge had power to forbid the applicant’s counsel from speaking to him. That is an issue upon which there is scant authority.
Turning to such authority as there is, in International Relief and Development Inc v Ladu,[19] Kenny J had before her proceedings for the enforcement of an arbitral award. In the course of the proceedings, counsel for the respondent sought leave to confer with his client after the respondent’s cross-examination by counsel for the applicant. Apparently, counsel wished to speak to his client in relation to several credit matters put in cross-examination, for the purposes of conducting re-examination. It is apparent that Kenny J — and counsel — considered that leave was required. Among other things, Kenny J referred to rule 46 of the Practice Rules of the Victorian Bar, and observed:[20]
Courts in this country have regularly proceeded on the assumption that they have power to grant the leave of the kind sought by counsel for Mr Ladu, whether as an incident of the power to control their own proceedings or otherwise. The approaches of judges to applications for leave to confer have apparently varied over time. Some judges have granted leave almost as a matter of course; others have not done so: see, for example Sheppard [Communications with Witnesses Before and During Their Evidence, (1987) 3 Australian Bar Review 28] at 37–38. What is more, irrespective of the local Bar Rules, the Evidence Act 1995 (Cth) (‘the Evidence Act’) confers power to control the presence and behaviour of others (including barristers) in connection with the questioning of witnesses. Section 26(d) of the Evidence Act specifically provides that a court ‘may make such orders as it considers just in relation to … the presence and behaviour of any person in connection with the questioning of witnesses’. The fact that in the course of the hearing the Court directed Mr Ladu as to his communications whilst under oath underscores the desirability of his counsel’s obtaining leave to confer.
Broadly speaking, in the past, the standard has been the general ‘justice of the case’. Today, s 192 of the Evidence Act provides an organising framework for considering leave issues. …
[19][2013] FCA 1216 (‘Ladu’).
[20]Ibid [15]–[16].
In Abbott,[21] in the course of a trial for sexual offences, it was alleged that, during a break in the cross-examination of a complainant, the Crown’s instructing solicitor said to the complainant’s father: ‘When you go home tonight and when you speak to [the complainant] make sure you tell her to say, “I don’t remember”.’ On appeal, a ground contended that the trial judge had erred in refusing a defence application to discharge the jury on the basis of impermissible communications by the prosecution solicitor with the complainant under cross-examination. In dismissing the appeal on this ground, the Court held that it had been open to the judge to be satisfied that there had been no undue interference with the witness, and therefore refuse to discharge the jury. Basten JA relevantly observed:[22]
There was no consideration in the course of the hearing as to the nature, scope or purpose of the practice whereby witnesses under cross-examination are required not to discuss the case, or their evidence, with any person. With respect to legal representatives, the practice is set out in the Bar rules in most Australian jurisdictions, derived from British practice. The Victorian rules and their precursors were discussed by Kenny J in International Relief and Development Inc v Ladu.[23] That discussion occurred in the context of an application by counsel for the respondent for leave to confer with his client before embarking on re-examination. However, the legal obligation to seek leave appears to have been treated as a matter of professional practice and the source of the court’s power to refuse or restrict leave was not examined. The limitation on the power of a legal representative to speak to a witness who has commenced giving evidence has been presumed to arise only upon the commencement of cross-examination.[24]
The father gave evidence of his brief conversation with the prosecution solicitor and his remarks to [the complainant]. …
However, given the absence of any submission concerning the basis of the ‘rule’, its scope, or its purpose, by reference to its source pursuant, for example, to s 11 or s 23 of the Evidence Act, all that need be asked is whether the communications with the parents (and, through them, [the complainant] herself) caused any practical unfairness to the applicant. There was no basis identified to satisfy the court that they did.
[21]Abbott (a pseudonym) v The Queen [2017] NSWCCA 149 (‘Abbott’) (emphasis added).
[22]Ibid [23]–[25].
[23][2013] FCA 1216.
[24]Potier v R [2015] NSWCCA 130 at [576]–[581] (Ward JA, Simpson and Wilson JJ agreeing).
Potier[25] was a case in which a prosecution witness in a trial for solicitation to murder had commenced to give evidence, and, before her evidence-in-chief had been completed (and prior to cross-examination commencing), had contacted the prosecutor and his instructing solicitor to alert them to some further information that she wished to give in evidence (which led to a further statement being taken from her). On appeal against conviction, the unrepresented appellant complained about what had occurred. Ward JA (with whom Simpson and Wilson JJ agreed) said:[26]
Mr Potier’s complaint reveals his lack of familiarity with the relevant Bar Rules. What is precluded under the Bar Rules is conferring with a witness while the witness is under cross-examination. [The witness’s] cross-examination had not yet commenced at the time that she contacted the Crown prosecutor to advise that she had further information about which she wanted to give evidence.
In International Relief and Development Inc v Ladu [2013] FCA 1216 the practice in this regard in Victoria and other Australian jurisdictions was considered in the context of an application given for leave to confer with a witness before the commencement of re-examination. Kenny J referred to the relevant Victorian Bar Rules which precluded a barrister from conferring with a witness while the witness was under cross-examination, even if the witness is a client or party to the proceedings, unless one of the two exceptions to the rule applied. Her Honour considered that there might be a question as to what extent if at all that rule applied where the cross-examination of the relevant witness had apparently concluded and re-examination was about to commence but did not consider it necessary to say anything further about that subsidiary question.
Her Honour noted that there had been a practice in at least some Commonwealth jurisdictions that Counsel would not speak with his or her own witness while that witness was under oath (or, perhaps, only under cross-examination) at least without leave of the Court or the consent of the opposing party (or perhaps, without informing either the Court or the opposing party), referring to an article by a former Federal Court judge in the 1997 Australian Bar Review (Sheppard ‘Communications With Witnesses Before and During Their Evidence’ (1987)
3 Australian Bar Review 28 at 36-38).
The New South Wales Bar Rule at the relevant time refer to speaking to the witness while the witness is in under cross-examination. This had not occurred by the relevant stage. Mr Potier’s complaint has no substance.
[25]Potier v The Queen [2015] NSWCCA 130 (‘Potier’).
[26]Ibid [578]–[582].
It may be accepted that, as a general rule, a court has the power to control its own process and proceedings according to the demands of justice in a particular case.[27] Assuming, without deciding, that the power is broad enough to permit a court to forbid counsel from speaking to his or her client (or witness) while under cross-examination, I consider that the occasion for the exercise of the power in that manner would be exceedingly rare. As to that, very great trust inheres between the Bench and Bar in this State (as, I am sure, it does in other jurisdictions). Counsel know that their primary duty is to the administration of justice. And courts expect that advocates will maintain high standards of professional conduct, and will act with fairness and diligence. In those circumstances, it would ordinarily be expected that a barrister who speaks to a client or witness whose cross-examination is still underway will do so in a manner that ensures that the interests of justice are not compromised, by avoiding doing or saying anything that might improperly influence or mould evidence yet to be given.
[27]See, e.g., Jago v District Court (NSW) 168 CLR 23, 74 (Gaudron J) (‘Jago’).
The judge gave no reasons for forbidding the applicant’s counsel from speaking to him. And, so far as I can see, there was no good reason. If the judge thought that there was a risk that the integrity of the trial might be compromised by counsel communicating with his client, or thought that there was a risk that the applicant might be coached or his evidence otherwise improperly influenced, the judge did not say so. Moreover, in my view, there was nothing in the prevailing circumstances that might properly have permitted the formation of such views.
Given that there was no basis upon which the judge could in the circumstances have forbidden the applicant’s counsel from speaking to him, there was ‘an error or an irregularity in, or in relation to, the trial’.[28] I am not persuaded, however, that the error or irregularity resulted in a substantial miscarriage of justice. In particular, I reject the contention that the irregularity constituted a serious departure from the prescribed processes of a trial,[29] in that — as it was put by counsel — it denied the applicant ‘the right to participate in his trial’.
[28]CPA, s 276(1)(b).
[29]Baini v The Queen (2012) 246 CLR 469, 481 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (‘Baini’).
For the sake of completeness, I would observe that none of the provisions of the Evidence Act 2008 governed the situation. As to that, s 11 recognises that the power of a court to control the conduct of a proceeding is not affected by the Act (except so far as this Act provides otherwise expressly or by necessary intendment). Moreover, s 26(d) is concerned with the manner in which witnesses are questioned. And s 192 is concerned only with ‘leave, permission or direction’ required by the Act.
Conclusion
With respect to conviction, I would make the orders referred to above.[30]
[30]See [7] and [73] above.
Given my conclusions concerning conviction, it is unnecessary to consider the application for leave to appeal against sentence.
NIALL JA:
I have had the benefit of reading the reasons for judgment of Priest JA and of Macaulay JA. I have come to the same conclusion as Macaulay JA that the applications for leave to appeal against conviction and against sentence must be refused. Subject to one matter concerning the construction of s 233(2) of the CPA which is not material to the result, I agree with the reasons of Macaulay JA. In these reasons, I wish only to address the construction of s 233(2) and make some additional observations in relation to grounds 1 and 2.
Construction of s 233(2)
Section 233(2) provides that, in a criminal trial, the court may allow the prosecutor to call evidence in reply to the evidence of the accused. The power is available where the accused gives evidence that could not reasonably have been foreseen by the prosecutor.
Whether or not the evidence could reasonably have been foreseen is a matter for the judge to determine. The section also provides that the finding, on which the existence of the power depends, is to be made having regard to paras (a) and (b).
A question arises as to whether in arriving at the state of satisfaction or persuasion on this critical question, the judge is confined to those documents. With respect to those who come to a different view, I am unable to agree that the section is so confined.
I reach that conclusion having regard to the text of the provision, the nature of the task, the repository of the power and the incongruous consequence it produces.
First, the provision does not state that the considerations are exhaustive. Further, s 233(3), which provides that nothing in the section limits any other power of the trial judge to allow the prosecutor to call evidence after the prosecutor has closed the prosecution case, does not suggest that the provision is to have a narrowing or limiting operation.
Second, like the corresponding common law rule or practice,[31] the power of a trial judge to permit a prosecutor to call evidence in reply is based on notions of fairness. The starting point for its operation is the requirement that the prosecution bring forward all of its case in proof of the charge and is not permitted to split its case. That rule is informed by fundamental notions of fairness to an accused that arise from the accusatorial system and to avoid the prejudice that would be occasioned if the jury were to unfairly give the last evidence greater weight.
[31]Chin (1985) 157 CLR 671, 684 (Dawson J); [1985] HCA 35.
At common law, this usual sequence may, in exceptional cases,[32] be altered where the accused gives evidence that cannot reasonably be foreseen by the prosecution. In those cases there are countervailing interests of fairness owed to the prosecution that may justify a departure from the usual rule. Section 233(2) provides a statutory foundation for a cognate power to allow the prosecution to call rebuttal evidence.
[32]Killick (1981) 147 CLR 565; [1981] HCA 63; Chin (1985) 157 CLR 671; [1985] HCA 35.
Given the fundamental nature of the power and its importance to the trial process, it is unlikely that the critical condition on which the power rests could be determined on a limited factual basis that may not represent the true position known to the parties.
That is particularly so given the nature of the documents referred to in paras (a) and (b) and the vagaries of a trial. In Alfarsi (a pseudonym) v The Queen[33] this Court considered the nature of the obligation on an accused to respond to a prosecution opening. The Court said:[34]
Section 183(2) of the CPA requires the defence response to identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken. As a matter of ordinary language, to ‘identify’ something is to point it out or to pinpoint it. Again, as a matter of ordinary language, ‘issue is taken’ with an act, fact, matter or circumstance if there is disagreement with it. And the ‘basis’ upon which issue is taken is the reason for disagreement. Thus, s 183(2) requires no more of an accused person than to point out those acts, facts, matters and circumstances in the prosecution opening with which he or she disagrees, and to provide a reason for such disagreement. But the provision does not — expressly or impliedly — require an accused person taking issue with an act, fact, matter or circumstance to make any positive statements of fact in relation to it.
[33][2021] VSCA 283 (‘Alfarsi’).
[34]Ibid [31] (Priest, Kaye JJA and Lasry AJA).
The document filed under s 183 may not be very informative. Further, it is virtually inevitable that, as the prosecution case progresses, likely avenues of defence or attack will emerge. The course of the trial will often provide a much clearer picture of any evidence that the accused might give in the evidence that he or she chooses to give.
The factors that are relevant to a power to permit the prosecution to call reply evidence are manifold. It would be incongruous that the power may be enlivened on the basis that the evidence was not reasonably foreseeable when it may be obvious as to what the accused was likely to say. True it is that this additional information might find its way into the exercise of the discretion but it would be odd for the power to be enlivened on an erroneous or at least meaningless factual premise. I do not think that it would have been intended to confer a power on the court to allow the prosecution to adduce reply evidence in response to evidence of the accused that was in fact reasonably foreseeable. If it were not intended to confer such a power then there would appear to be no reason for that issue to be left as a discretionary factor rather than a qualifying condition. That is particularly so where s 233(2) plainly imposes a qualifying condition based on whether the evidence of the accused was reasonably foreseeable.
Third, it is important that the repository of the power is a court and is conferred to advance the interests of justice and the conduct of a fair trial. Constraints on what a court is entitled to take into account should not be lightly inferred.
It follows that, in order for the s 233(2) power to be available, the court must be satisfied that the evidence of the accused was not reasonably foreseeable. That question must be answered having regard to the defence response and admitted facts and to any other matters that may be relevant to that factual question.
In his reasons Macaulay JA explains why the critical evidence to which the prosecution wished to reply was not reasonably foreseeable. I agree. I would only add the following by way of my own emphasis.
The gravamen of the applicant’s evidence was that he hired the van at the request of Allouche and drove it to Allouche’s house and was unaware of what happened after he dropped the van off. The first part of that narrative — that the applicant hired the van — was largely irrelevant to the application to reopen. In my opinion, there was no misunderstanding on the part of the judge about the nature of the reply evidence that the prosecution sought to adduce and no error in concluding that this evidence was not reasonably foreseeable.
First, it is inconceivable that the prosecution would have been permitted to call rebuttal evidence merely to establish that the applicant hired the van. That fact was a central pillar of the prosecution case on charge 3. The prosecution called Ms Wang of Mini Koala Car Rental to establish the fact.
Second, the proposed reply evidence did not prove that the applicant hired the van. It was not directed to that issue. The evidence was that the van was not seen at Allouche’s house during a certain timeframe and indirectly rebutted the applicant’s evidence about what he did with the van after he had hired it. It is true that the prosecutor originally sought to lead the evidence on the basis that it was relevant to the credit of the applicant but the judge, correctly, understood that the evidence went to a fact in issue.
Third, even if, as I consider to be the case, it was reasonably foreseeable that the applicant would, in his evidence, admit to hiring the van that did not mean that his critical evidence, to which the reply evidence was directed, was foreseeable. In the event that the applicant gave evidence it was reasonably foreseeable that he would admit to hiring the van. The prosecution evidence on this aspect was relatively strong. The applicant’s pre-trial responses had been equivocal and in an earlier trial his counsel had told the judge that hiring the van would not be disputed. In this sense the case bears some similarities with Killick in which foreshadowing an alibi at an earlier trial meant that in the subsequent trial, alibi evidence was reasonably foreseeable.
It was a realistic prospect that the applicant would seek to confess and avoid. But how he would do so was not foreshadowed nor easily foreseen. The evidence that the applicant hired the van for Allouche was entirely new and could not reasonably have been anticipated. It was, in effect, an affirmative defence that had not emerged in any pre-trial exchange, any filed document or from the way the applicant’s case was conducted in any of the trials.
The applicant has failed to persuade me that the judge determined the application on a false basis. Indeed, I am well satisfied that the judge appreciated the importance and the novelty of the Allouche connection, and proceeded on a correct basis. The prosecutor’s submissions raised a false flag but the judge was not distracted from his task, was alive
to the crucial issue to which the reply evidence responded and there was no error or irregularity that affected the ruling made by the judge.
The orders proposed by Macaulay JA should be made.
MACAULAY JA:
Introduction
1,4-BD is a chemical solvent. It has a number of industrial uses. One is that, when diluted with water, it may be used as a domestic or commercial cleaning product. Aside from industrial uses, when flavoured (to disguise its unpleasant taste), it may also be ingested orally in which case the human body will naturally metabolise it to become gamma-hydroxybutyrate, more commonly known as GHB. GHB is colloquially known as ‘the party drug’ or ‘the date rape drug’. When consumed, it can induce euphoria and have a sedating effect. For that reason, 1,4-BD is a drug of dependence within the meaning of the Drugs, Poisons, Controlled Substances Act 1981 (‘DPCSA’) except if and when used for a lawful industrial purpose.[35]
[35]The phrase ‘drug of dependence’ is defined in s 4 of the DPCSA to mean, inter alia, a drug ‘specified in Column 1 of Part 3 of Schedule 11’. That column includes the entry: ‘1,4 Butanediol (also known as 1,4-BD) (except for a lawful industrial purpose and not for human consumption)’.
Between about 2:00 am and 5:00 am on 14 June 2016 a group of men moved boxes and barrels containing 1,4-BD from various storage locations around Melbourne to a different storage location. Police apprehended some of the men and seized approximately 4,283 kg of undiluted 1,4-BD in boxes and steel barrels. No innocent explanation was suggested for the movement of the drug on that morning.
In the previous July and November of 2015, two shipments of 1,4-BD — in total, more than 16,800 litres (16.8 tonnes)[36] — were imported from China to Australia by SAA Cleaning Company Pty Ltd (‘SAA Cleaning’). The 4,283 kg of 1,4-BD seized on 14 June 2016 appeared to be traceable to the 2015 shipments.
[36]It was common ground that 1 litre of 1,4-BD weighs 1 kg with volume and weight used interchangeably in evidence.
Essentially that is because of the flawed nature of Moustafa and apparent holes in his evidence, and the lack of unambiguous evidence of the applicant’s presence at Kennards, Ashley Street or Racecourse Road on 14 June. True it is that the video footage shows a person of apparently large build being involved; that it was highly incriminating that the person who hired the van said it was to required to ‘move a box’, contradicting the applicant’s evidence of having no knowledge of the purpose of hiring the van; and that a cap containing the applicant’s DNA was found near the abandoned Toyota Corolla.
But the only person who positively asserted the applicant was present on 14 June was Moustafa. His overall version of events had some difficulties, and his credit was certainly put under real strain. That does not mean that the jury may not have accepted his evidence on the crucial point of the applicant being present moving the boxes on 14 June, especially since it gained support from other evidence. But, the applicant gave a forceful account before the jury insisting that he purchased the product for legitimate industrial purposes, that he was not present moving the boxes on 14 June despite hiring the van for his friend Allouche, and that it was Moustafa who was the drug dealer who had stolen the product from him and who had implicated him to get a sentencing discount on drug dealing charges including, amongst other drugs, for 3,683 kg of the same 1,4-BD for which the applicant was charged under Charge 3.
It is difficult to say with sufficient confidence that a jury could not have entertained a reasonable doubt as to the applicant’s guilt without the credibility of his account being undermined by the evidence of surveillance at Allouche’s house on 14 June.
For these reasons, had I been persuaded that there had been an error or irregularity of the kind contended under grounds 1, 2 or 3 I would not have shied from finding a substantial miscarriage of justice only because conviction was inevitable in any event.
Conclusion on the conviction appeal
For the various reasons given above, I would refuse leave to appeal on each of the proposed grounds for appealing the convictions.
Application for leave to appeal against sentence
As seen from the table at the commencement of these reasons, for the three charges of trafficking a drug of dependence in not less than a commercial quantity the judge sentenced the applicant to a total effective sentence of 17 years and 10 months’ imprisonment with a non-parole period of 12 years and 10 months.[69] At the time of offending, a commercial quantity of 1,4-BD was 2 kg[70] and the maximum penalty for the offence was 25 years’ imprisonment. There was no designated ‘large commercial quantity’.[71]
[69]DPP v Obian [2020] VCC 915 (Judge Trapnell) (‘Reasons for Sentence’).
[70]DPSCA, Part 2, Schedule 11.
[71]A ‘large commercial quantity’ has since been specified as 20 kg in Part 1, Schedule 11 of the DPCSA.
The proposed grounds of appeal, after the abandonment of proposed ground 1,[72] are as follows:
[72]Proposed ground 1 was a complaint about the judge’s assessment of the applicant’s rehabilitation prospects.
Ground 2:
The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive having regard to all relevant matters, including the applicant’s youth and lack of prior convictions, as well as the delay in the matter being finalised, and the increased burden of imprisonment due to the COVID-19 pandemic; and
Ground 3:
Parity.
After setting out the facts upon which he sentenced the applicant, the judge first made findings on the seriousness of the offences for which the applicant had been convicted. In doing so, the judge had regard to the evidence of Detective Senior Sergeant Kahan as summarised above at [238]. The judge adopted the most conservative notional (wholesale) value for 1,4-BD, namely $700 per litre. Adopting that value, the judge determined that the likely notional value of the 1,4-BD the subject of Charge 1 was a little under $560,000 and the likely notional value of the 16,000 kg the subject of Charge 2 was a little under $11.2 million. Since the judge found that the drugs the subject of Charge 3 were, on the balance of probabilities, part of the shipment of drugs the subject of Charge 2, no additional value was ascribed to those drugs.
The judge took the view that the offences for which the applicant had been convicted were ‘very serious examples’ of ‘the most serious category of offending of this type’.[73] He took that view for reasons that were accurately summarised in the respondent’s written case filed in respect of the application for leave to appeal against sentence, namely:
(a)The quantities of drugs involved were ‘extremely large’, representing the highest known quantity of 1,4-BD trafficked in Victoria or any other Australian jurisdiction. The ‘commercial quantity’ threshold was exceeded: 400 times on Charge 1 (800 kg); an extraordinary 8,000 times on Charge 2 (16,000 kg); and 2,140 times on Charge 3 (4,283 kg).
(b)The applicant was a willing and knowing participant at the wholesale level of an extensive and successful trafficking operation. In relation to Charges 1 and 2, the applicant was the ‘sole instigator’ whose industry knowledge and position enabled him to take possession of the 1,4-BD destined for sale in the community. In relation to Charge 3, the applicant was the ‘principal offender and directing mind’ who actively participated in moving significant stocks of the drugs in an attempt to conceal them from authorities and enable their sale.
(c)The offending was sophisticated and involved considerable planning. In relation to Charges 1 and 2, the applicant used his cleaning business to import 1,4-BD from China so that his possession of the drugs appeared to be for a legitimate purpose. Having organised the importation of the 1,4-BD, the applicant collected and stored the drugs, and acquired materials that could be used for their distribution. In relation to Charge 3, the offending was not spontaneous. It involved a degree of planning including, for example, hiring the Toyota HiAce van later used to move the drugs.
(d)The offending was connected and occurred over 11 months. In effect, Charge 1 operated as a ‘dry run’ to Charge 2, and Charge 3 involved the movement of drugs which were the subject of Charge 2. As such, the offending was protracted.
(e)The applicant’s sole motivation was financial gain. As outlined above, the conservative notional value of the drugs was $560,000 on Charge 1 and $11,200,000 on Charge 2. There was no evidence of drug addiction or financial pressures which may have explained the offending.
(f)The potential harm of 1,4-BD to the community was also relevant to assessing the criminality involved. Evidence before the sentencing judge showed 1,4-BD had become a dangerous substitute for GHB, effectively replacing GHB from as early as 2014, and posed a particular risk of lethal overdose due to the delay in 1,4-BD achieving its desired effect.
[73]Reasons for Sentence, [48].
Having determined the seriousness of the offences, the judge turned to the applicant’s personal circumstances and to mitigating factors. In this regard, the judge observed that, although 26 years of age at the time of sentencing, the applicant was between 21 and 22 years of age at the time of committing the offences. The judge summarised the applicant’s stable family background, noted that he had completed Year 12 and a further three years of a four-year civil engineering degree at Swinburne University by the time he was remanded in custody for these offences. He had commenced his own cleaning business — SAA Cleaning Services — which the judge accepted was not created solely for the purpose of importing 1,4-BD the subject of the charges.
Additionally, the judge noted:
•the applicant had no prior convictions (although he had an outstanding matter in relation to a charge of affray allegedly committed on 14 April 2019);
•the allowance for youth and being of otherwise good character was tempered in cases involving serious drug trafficking;[74]
•the applicant spent 75 days custody in relation to that unrelated matter which, while not strictly ‘dead time’ under the Renzella discretion,[75] would be taken into account ‘in a broad way’;
•because the importation of 1,4-BD the subject of Charge 1 was a ‘dry run’ for the later and larger importation the subject of Charge 2, and the drugs the subject of Charge 3 were derived from those the subject of Charge 2, all three charges could, in a sense, be viewed as forming part of one continuing act of trafficking;
•although financial gain was the applicant’s obvious motive in committing the offences, and the potential returns were huge, there was no evidence of him acquiring great wealth or living in extravagant or grandiose lifestyle, nor was there any evidence of 1,4-BD actually being sold to another person;
•because the applicant faced ‘four trials’[76] on the charges, there had been substantial delay of four years between offending and conviction, exacerbated by a further delay of nine months between conviction and sentence, none of which were the personal fault of the applicant;
•the effects of the COVID-19 pandemic would make the experience of serving a sentence more burdensome on the applicant for the foreseeable future;
•despite having no prior criminal history, due to the applicant’s lack of insight into the seriousness of his offending conduct there was risk of reoffending such that his prospects of rehabilitation were, at best, ‘good’.
Proposed ground 2 (manifestly excessive)
[74]Ibid, [71].
[76]In fact, there were five trials as set out above at [145].
In a pithy summary of the applicant’s submission on proposed ground 2, junior counsel for the applicant argued that the sentence of 15 years and 10 months on Charge 2 was ‘quite extraordinary’ in the context of an offence with a maximum penalty of 25 years, involving an offender of only 21–22 years at the time of offending who had no prior convictions. It was ‘just too much’. No specific error was alleged.
Moreover, the sentence of 8 years’ imprisonment on Charge 3 for trafficking the same drugs the subject of Charge 2 was excessive. At the least, there ought not to have been any cumulation of that sentence upon the sentence imposed for Charge 2. Indeed, although convicted of Charge 3 counsel submitted that the applicant should have been discharged in respect of that charge under s 73 of the Sentencing Act 1991.
As expressed in the text of this proposed ground, the applicant relied upon the mitigating features of youth, lack of prior convictions, delay and the increased burden of imprisonment due to COVID-19.
Although, as the respondent pointed out, the judge had taken each of these mitigatory matters into account and had addressed them, the mere fact that a judge purports to take into account all relevant mitigating factors does not, of itself, answer the question whether sentences are — either individually or as a total effective sentence — manifestly excessive. Appellate intervention on the ground that a sentence is manifestly excessive or inadequate is warranted if the appellate court is driven to conclude that there must have been some misapplication of principle despite being unable to identify specific error.[77]
[77]R v Pham (2015) 256 CLR 550, 559 ([28] (French CJ, Keane and Nettle JJ); [2015] HCA 39 (‘Pham’); DPP (Vic) v Dalgliesh (2017) 262 CLR 428, 447–8 [59] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41 (‘Dalgliesh’).
Even so, it is well established that the test for establishing that a sentence is manifestly excessive is stringent and difficult to satisfy: the sentence imposed must be ‘wholly outside the range of sentencing options available’ to the sentencing judge.[78] Factors which determine whether an individual sentence is manifestly excessive are the same factors which inform the instinctive synthesis in the original sentencing exercise — namely, the objective gravity of the offence, current sentencing practice, the maximum sentence, matters in mitigation and matters personal to the offender.[79] A judgment formed about manifest excess, as with totality, is often formed as a matter of impression.[80]
[78]Clarkson v The Queen (2011) 32 VR 361, [89]; [2011] VSCA 157; DPP v Karazisis (2010) 31 VR 634, [127]–[128]; [2010] VSCA 350; DPP v Macarthur [2019] VSCA 71, [58]–[60].
[79]Azzopardi v The Queen (2011) 35 VR 43, (‘Azzopardi’), [58]; [2011] VSCA 372.
[80]Ibid [58].
There are three matters about the sentences imposed which, at first glance, invite closer scrutiny. The first, as the applicant submitted, is the sheer length of the sentence for Charge 2. Even though the judge correctly took guidance from this Court’s statement in Gregory v The Queen[81] that ‘sentences well into double figures would have been expected for [commercial quantity] trafficking offences where … the quantity involved approach the [large commercial quantity] threshold’,[82] a base sentence approaching 16 years for a first time offender is undeniably a large sentence.
[81](2017) 268 A Crim R 1 (‘Gregory’); [2017] VSCA 151.
[82]Gregory (2017) 268 A Crim R 1, [98].
Secondly, the sentence of 8 years imposed on Charge 3 when what was involved was the movement of a subset of the same product involved in Charge 2 in an attempt to evade detection, also warrants close attention.
Thirdly, there is the matter of totality; that is, standing back and considering whether the overall sentence is just and appropriate.[83]
[83]Mill v The Queen (1998) 166 CLR 59, [63]; [1988] HCA 70.
Turning to the first of the three matters, what attracts some interest here is the extent to which the judge actually allowed for the accepted mitigatory factors, especially the considerable delay and the increased burden of imprisonment due to the pandemic. One can understand that, in accordance with authority, the judge might significantly temper any allowance for the applicant being a first offender[84] and to his youth and rehabilitation prospects,[85] given the very nature of this particular drug trafficking, its sophistication and scale. Nonetheless the very high sentence of 15 years and 10 months, after allowance for all the mitigatory factors, raises the question of what sentence could justifiably have been imposed without them.
[84]Reasons for Sentence, [71]: see Azzopardi (2011) 35 VR 34, [46]–[49].
[85]Reasons for Sentence, [71]; see R v Leroy [1984] 2 NSWLR 441, 446–7; Samuels-Orunmwense v The Queen [2015] VSCA 152, [88].
The judge correctly evaluated the seriousness of the offending by reference to features of quantity, role, duration and motivation.[86] As the judge observed, it is difficult to find particular comparable cases to guide the sentencing discretion in this matter. Nonetheless, there are cases that may serve as yardsticks to illustrate the possible range of sentences available.[87]
[86]Reasons for Sentence, [49], see Gregory (2017) 268 A Crim R 1, [24].
[87]Pham (2015) 256 CLR 550, 560 [29]; Dalgliesh (2017) 262 CLR 428, 445 [52].
In DPP v Moustafa,[88] this Court increased the sentence imposed on the applicant’s co-offender in respect of a charge of trafficking a drug of dependence (commercial quantity), ‘Charge 2’, from 4 years to 8 years. The Court accepted that Moustafa’s initial sentence of 4 years on Charge 2 was manifestly inadequate.[89] The events the subject of Charge 2 included (but were not entirely the same as) the events the subject of Charge 3 against the applicant in this proceeding. The quantity of 1,4-BD involved was said to be over 8,000 kg (the combined amount seized on the night of 14 June 2016 plus the further amount located at the Tullamarine storage).
[88]DPP v Moustafa [2019] VSCA 331 (‘Moustafa’).
[89]Ibid [90].
Moustafa was 27 years old, had pleaded guilty and, importantly, had given valuable assistance to police in relation to the involvement of the applicant (as is apparent from the evidence he gave in the applicant’s trial). He was sentenced as having a significant yet limited role in the trafficking enterprise, not being the principal or being involved in distilling or selling the drugs. He did have some relevant prior convictions. The Court noted that the relevant offence ‘involved organised crime at a high level. It concerned trafficking in drugs with a street value of tens of millions of dollars’.[90]
[90]Ibid [91]. The reference to ‘tens of millions of dollars’ is explained in fn 18 wherein the wholesale value attributed to the 1,4-BD was between $11 million and $20 million with a street value between $33 million and $50 million.
In Moustafa the Court also cited a number of previous cases concerning sentences for trafficking 1,4-BD.[91] Sentences for quantities ranging between 2.0 kg and 35.54 kg yielded sentences ranging between 2.5 and 5 years’ imprisonment. Having regard to the quantity of drug with which Moustafa was charged, described as ‘vast’,[92] the Court considered that despite all mitigating factors the sentence on Charge 2 ‘had to be, at a minimum, close to double figures.’[93]
[91]Ibid fn 19. When sentencing the applicant, Judge Trapnell also had regard to other cases listed in his reasons for sentence at [83], including those surveyed by this Court in Ellis v The Queen [2018] VSCA 221, [29].
[92]Ibid [65].
[93]Ibid [94].
It was not suggested in the present case that the judge erred insofar as he took into account the statements of this Court about the need to increase sentences for large commercial quantity drug trafficking[94] and that the quantity of drugs trafficked is highly relevant (although not determinative) in assessing the objective gravity of the offending.[95] It seemed not to be disputed that the sentence of 15 years and 10 months was the largest single sentence ever imposed for trafficking a commercial quantity of a drug of dependence under section 71AA. Neither was it disputed that the amount of
1,4-BD the subject of Charge 2 appeared to be the largest quantity of this drug for which any offender had previously been sentenced in Australia.
[94]Gregory (2017) 268 A Crim R 1, 25 [102]; Nguyen v The Queen [2019] VSCA 184, [49].
[95]DPP v Fatho [2019] VSCA 311, [70].
In all of the circumstances, the judge was well justified in forming the view that he expressed about the objective gravity of the offending. It is an offence carrying a maximum sentence of 25 years’ imprisonment and it is properly to be seen as a very serious example of this very serious type of offence. The sheer quantity of the drug involved was nothing short of massive, thousands of times the commercial quantity threshold. The applicant was the sole instigator of the operation, operating at the wholesale level of the market. His operation was planned and carefully orchestrated. His motivation was purely for profit. And, the duration of offending from arranging the first import, through packaging and storing the product, to the movement of the product on 14 June 2016, was close to 12 months.
Based on the authorities,[96] the judge was entitled in those circumstances to give less weight than otherwise might be given to youth and being of otherwise good character. In taking into account the effects of delay, the judge carefully weighed that delay and considered its effects of adding increased burden of worry and anxiety to the applicant over a considerable period. He gave specific consideration to the pandemic burden in accordance with the correct principles.[97]
[96]See above nn 84, 85.
[97]Reasons for Sentence, [81]; see Brown v The Queen [2020] VSCA 60, [48].
Compared to Moustafa, the applicant played a more significant role in the trafficking enterprise. Twice the quantity of drug was involved with twice the potential reward. Further, the applicant was not entitled to the same significant mitigatory allowances for pleading guilty and assisting the prosecutorial authorities. Viewed from that broad perspective, that a judge might impose a sentence on the applicant of nearly twice the length for which Moustafa was sentenced, even after making allowances for personal matters and matters in mitigation, seems less remarkable.
Turning to the second of the three matters of interest, I find the sentence on Charge 3 somewhat less explicable. Although the amount of drug involved was 4,283 kg, it was a subset of the same drug that was the subject of Charge 2. Simply possessing them for sale, in the context of the events with which Charge 3 was concerned, did not warrant a repetition of all the same sentencing considerations that justified the very high sentence given for Charge 2 to reflect (again) the community’s denunciation of trafficking commercial quantities of a drug of dependence.
That said, the activity of 14 June 2016 stood somewhat apart from the activity of the importation which was the subject of Charges 1 and 2. Even though, as the judge noted, all three charges in one sense formed parts of one continuing act of trafficking, the urgent and planned activity of moving the product from one location to another in the early hours of 14 June 2016, to protect the enterprise, was, in my view, a qualitatively different act of criminality. That discrete criminal activity deserved a discrete, additional penalty to satisfy the sentencing objectives of punishment, general deterrence, denunciation and community protection.
The relevance of quantity at this point, however, is significantly ameliorated because quantity has already been taken into account in respect of the sentence for Charge 2.
All things considered, I would have thought that a sentence of, perhaps, 4 or 5 years’ imprisonment would have been more appropriate on Charge 3. However, this does not ultimately avail the applicant. Even though I would have been minded to substitute a lesser sentence for Charge 3, I nonetheless consider it would remain appropriate to cumulate one year of that sentence on the sentence imposed for Charges 1 and 2, resulting in no change to the total effective sentence.
Finally, as to the third matter of interest, the consideration of totality here largely (but not entirely) reproduces the consideration of manifest excess. There is no question that the judge specifically adverted to the relevant principle.[98] He acknowledged the ‘fair degree of overlap’ between the discrete offences which he said would be reflected in the sentences imposed and the orders for cumulation, also feeding into the setting of an appropriate non-parole period. He reminded himself to be careful to avoid imposing a crushing sentence.
[98]Reasons for Sentence, [94].
The objectives of retribution, general deterrence and denunciation loomed large in this sentencing exercise. The judge needed to be careful to fix a sentence that would be sufficient, but not more than necessary, to satisfy those objectives, recognising that the severity of a term of imprisonment is an exponential function, not merely linear.[99] The extent of cumulation of the sentence for Charges 1 and 3 upon the base sentence for Charge 2 is relatively modest. As submitted by the respondent, the total sentence would permit the applicant to be released from custody as early as 38 years of age, so that it could not be said that the sentence destroys his expectation of leading a useful life upon release.
[99]Azzopardi (2011) 35 VR 34, [61]–[62].
For completeness, the non-parole period of 12 years and 10 months is approximately 72% of the total effective sentence, falling within what is referred to as the ‘usual’ non-parole period.[100] A disposition allowing up to 5 years of parole adequately allows for the applicant’s rehabilitation and transition into the community. There is nothing about the non-parole period which of itself raises a concern.
[100]Romero v The Queen (2011) 32 VR 486, 493 [25]; [2011] VSCA 45.
Despite my first-blush apprehension about the sentence on Charge 2, I am not prepared to say that it is wholly outside of the range that was available to the sentencing judge. It is indeed stern but that in itself is not sufficient. Closer consideration of the key features of the offending and the relative weight to be given to the mitigatory factors show that the sentence was justifiable. The objective gravity of the offending warranted a truly substantial period of imprisonment. In short, that this might be an extraordinarily high sentence is sufficiently explicable by the brazen nature of the offending, its scale and the recognised need to impose significant sentences for large scale drug trafficking offences.
On the facts of this case, except for the individual sentence on Charge 3 discussed above, the individual sentences on Charges 1 and 2, orders for cumulation and non-parole period, and the total effective sentence, all reflect a principled and justifiable exercise of the sentencing discretion. Neither of the sentences on Charges 1 and 2, nor the total effective sentence, is of such a magnitude that I would be driven to conclude that the judge must have misapplied some principle.
Despite my view that the head sentence imposed on Charge 3 is too high, because I would nevertheless arrive at the same total effective sentence even after lowering that particular sentence, I would refuse the application for leave to appeal on proposed ground 2 pursuant to s 280(1)(b) of the CPA.
Proposed Ground 3 (parity)
Very little was advanced either in writing or orally on this proposed ground of appeal. Inferentially, the applicant submitted that the sentence of a term of imprisonment of 8 years for Moustafa on Charge 2,[101] for a rolled up charge involving over 8,000 kg of 1,4-BD found in five different locations, gave rise to a justifiable sense of grievance[102] on the part of the applicant who was sentenced for more than twice that amount of time.
[101]See above at [393].
[102]Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
I have already highlighted the similarities and differences between the roles of Moustafa and the applicant, the total amounts of drug involved and the significant mitigatory factors available to Moustafa that were not available to the applicant. Despite its utility in illustrating that a very substantial term of imprisonment may be warranted, with the quantity of drugs being a prominent sentencing consideration, the sentence given to Moustafa on Charge 2 is not a very helpful comparator for parity purposes. Not only did Moustafa plead guilty and have available to him the favourable mitigatory factor of assistance to police, there was a significant difference between the offending with which they were both charged. In particular, there was no commonality between Moustafa’s involvement in more than half of the 8,865 kg of 1,4-BD with which he was charged and the applicant’s involvement in the drugs with which he was charged.
In my view, this proposed ground is not reasonably arguable and leave to appeal on it should be refused.
Extension of time to apply for leave to appeal
As earlier indicated, the applicant requires an extension of time in which to apply for leave to appeal against conviction and sentence. The respondent opposes any extension of time.
The applicant was convicted on 30 July 2019 and sentenced on 26 June 2020. Any application for leave to appeal conviction or sentence was due to be filed on 24 July 2020.[103] His applications for an extension of time in which to file an application for leave to appeal conviction and sentence[104] were filed on 16 November 2021, supported by an affidavit of his solicitor, Theano Milides, sworn on the same date.
[103]CPA, ss 275, 279.
[104]Ibid s 313.
In Madafferi v The Queen,[105] this Court set out general principles relating to applications for extensions of time. Relevantly, the Court emphasised that time limits exist for sound reasons and an extension of time is at the discretion of the Court. The applicant carries the burden of persuading this Court to exercise that discretion. Generally, the Court will balance the appeal’s prospects of success with the extent and reasons for delay in filing.
[105][2017] VSCA 302, [11].
Each application for leave to appeal in this matter requires an extension of time of approximately 16 months when the period in which to apply for leave to appeal was only 28 days. In each case, the delay is significant.
The reasons given for the delay may be summarised as follows:
•The fact of there being five trials made the gathering and assembling of all evidence problematic;
•The applicant retained different solicitors to his trial solicitors for the purpose of making the application for leave to appeal, formally retaining the new solicitors on 23 July 2020 (the day before an application was due) and the process of gathering relevant materials from the trial solicitors was hampered by the impact of COVID-19 and solicitors not being in their offices;
•Requests for transcripts from VGRS involved a significant amount of correspondence;
•Obtaining rulings and materials from judges’ chambers required numerous exchanges of communications;
•Requests for materials from the Office of Public Prosecutions was hampered by the fact that staff were working from home due to COVID-19;
•The deponent was reluctant to contact trial counsel as he had been diagnosed with a serious health issue;
•The delay in assembling materials with which to brief counsel to prepare the applications for leave to appeal hampered the solicitor’s ability to provide an estimate of fees for doing so;
•After initially engaging senior counsel for advice, junior counsel was retained for advice in order to moderate fees but there were delays in that junior counsel’s availability;
•After obtaining certain advice about prospects for appeal, from both senior and junior counsel, a new senior counsel was retained in mid-2021;
•At the urging of the new senior counsel, an attempt was made to obtain the assistance of trial counsel who declined;
•Written advice was ultimately obtained from new senior counsel on 12 August 2021;
•Funding was put in place between August and October 2021 for the written case applications to be drafted;
•A final conference was held with the applicant on 4 November 2021 to approve the materials upon which the applications for leave to appeal and extensions of time were to be made.
The respondent’s basis for resisting the applications for extension of time is that the explanation for the substantial delay is unsatisfactory, for four principal reasons: firstly, that the applicant has not made any affidavit himself; secondly, the applicant delayed instructing new solicitors; thirdly, there are unexplained gaps of weeks or months in the material proffered as explaining the delay; and, fourthly, scarce explanation is given why the applicant had to pursue afresh material that should have been in his possession or that of his previous legal representatives.
Whilst there is some cause for concern on the matters raised by the respondent, particularly the third and fourth points above, the applicant (through his new solicitor) has provided a detailed history of the efforts made to gather relevant materials which appears to have been beset with unusual problems. Further, as argued in the materials, the applicant has wished to avail himself of second and third opinions as to his prospects of appeal, particularly on conviction. As indicated by the discussion in these reasons, the points raised on the application for leave to appeal conviction are not straightforward, and involve the consideration of some legal principles that have received little past attention.
Balancing all matters, in my view the outcome of the applications for extension of time are ultimately to be determined upon the merits of the two applications for leave to appeal. Thus:
(a)Although for the reasons given, I would refuse leave to appeal on each of the grounds for appealing the convictions, two of the proposed grounds of appeal were reasonably arguable. An extension of time in which to file the application for leave to appeal the convictions should therefore be granted.
(b)Because I would refuse leave to appeal on both proposed grounds on the sentence appeal, for the specific reasons given in each case above, I would also decline to grant an extension of time in which to file the application for leave to appeal sentence as it would be futile to do so.
---
That is, the discretion to make an allowance for unrelated pre-sentence detention described in
R v Renzella[1997] 2 VR 88, 96–97.
20
34
0