R v Abdallah

[1999] NSWCCA 380

CITATION:	Regina v Afif Abdallah [1999] NSWCCA 380
FILE NUMBER(S):	CCA 60107/98
HEARING DATE(S):	Friday 10 September 1999
JUDGMENT DATE:	8 December 1999
PARTIES :	Afif Abdallah (appellant) Regina (respondent)
JUDGMENT OF:	Meagher JA at 1; Grove J at 2; Hidden J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0068
LOWER COURT JUDICIAL OFFICER:	Bellear DCJ

COUNSEL:	J L Glissan (appellant) JV Agius (Crown)
SOLICITORS:	Sukkar & Associates (appellant) Commonwealth Director of Public Prosecutions (Crown)
CATCHWORDS:	CRIMINAL LAW: Trial for involvement in importation of cocaine - complaint about structure and clarity of summing-up - adequacy of warning about evidence of accomplice - no question of principle
ACTS CITED:	Evidence Act 1995
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60107/98

MEAGHER JA
GROVE J
HIDDEN J

Wednesday, 8 December 1999

Regina v AFIF ABDALLAH

Judgment

1     MEAGHER JA : I agree with the judgment of Hidden J.

2     GROVE J: I agree with Hidden J.

3     HIDDEN J: The appellant, Afif Abdallah, was tried with a jury in the District Court on a charge of being knowingly concerned in the importation of a trafficable quantity of cocaine. He was found guilty and was later sentenced to a term of imprisonment. The appeal is brought against conviction only.

The evidence

4     It was the Crown case that in early 1996 the appellant approached Fawaz Abdul-Hadi to enquire if he knew anyone willing to travel overseas and bring back a drug (“the white”) from Colombia. This meeting took place at the appellant’s business premises at Homebush.

5     Abdul-Hadi recruited Nicholas Simeonides and introduced him to the appellant at the business premises. The appellant asked Simeonides to go to Quito, Ecuador and to ring him upon arrival to inform him at which hotel he was staying. The appellant telephoned an overseas number and informed the person on the other end of the line of the arrangement. He gave Simeonides money to obtain a passport and for other expenses, and instructed Abdul-Hadi to organise a flight to Quito.

6     At a second meeting at the business premises, the appellant told Simeonides that the drug would be concealed in “baby dolls”. He also told Simeonides that he would be paid $12,000 for the trip. In May 1996 Abdul-Hadi booked Simeonides’ flight and the appellant paid for it. His passport was issued in the following month. At a further meeting that same month at the business premises, Simeonides asked the appellant for money and the appellant said that Adbul-Hadi would look after him.

7     A visa having been arranged, Simeonides left Australia on 21 June 1996, travelling to Ecuador via Argentina. Upon arrival in Quito, he phoned Abdul-Hadi to give him his telephone number in that city. Abdul-Hadi later met the appellant and gave him that telephone number. The appellant rang an overseas number, informing the person on the other end of the line of Simeonides’ arrival and his telephone number. He told Abdul-Hadi that the drug would be coming in a “diving bottle”, rather than in dolls .

8     During Simeonides’ stay overseas, the appellant had Abdul-Hadi deposit a total of about $11,000 into his Visa account for his expenses. On 31 July 1996 he instructed Abdul-Hadi to transfer an amount of almost $10,000 to Colombia.

9     On 8 August 1996 Simeonides phoned Abdul-Hadi to inform him of his arrival date in Sydney. Abdul-Hadi passed that information on to the appellant, who was already aware of it. Simeonides departed from Ecuador on 9 August, arriving in Sydney at about 8:50pm on 12 August.

10     Early on 12 August the appellant rang Abdul-Hadi, telling him that they were to go to the airport that night and that he was to come to the appellant’s home at Campsie at 7:30pm. They drove to the airport, arriving at about the same time as Simeonides’ flight. The appellant asked Abdul-Hadi to go into the terminal alone, as he did not want to be seen there.

11     Abdul-Hadi returned to the appellant’s car to report that Simeonides had not emerged from the terminal. The appellant made several calls on his mobile phone, and Abdul-Hadi tried to contact Simeonides’ home on that phone but rang the wrong number. Vodafone call charge records show that at about 10:15pm, the time at which the appellant and Abdul-Hadi left the airport, the appellant’s mobile phone was used in the Vodafone cell for the airport.

12     In fact, Simeonides had been detained following a search of his luggage by Customs Officers. He was carrying a Scuba air tank, in which cocaine was secreted.

13     Simeonides also had in his possession a card with the address and telephone number of the Majestic Hotel in Quito, Ecuador. Call charge records for the telephone service at the appellant’s business premises revealed that more than 20 phone calls were made from that service to that hotel between 18 July and 9 August 1996. Call charge records for the telephone service connected to the appellant’s home showed that three further calls were made to the hotel in the morning of 13 August.

14     Simeonides agreed to assist police to conduct a controlled delivery of a substitute Scuba air tank. Early in the morning of 13 August he was taken by Federal Police officers to his home at Sans Souci, where he was supplied with a tank similar to that which he had brought into the country. Surveillance was maintained on his premises.

15     Later in the day Abdul-Hadi drove to Simeonides’ home. From there he telephoned the appellant, who had a brief conversation with Simeonides. In the early afternoon Abdul-Hadi left, carrying the substitute tank in a backpack, and drove to the appellant’s home.

16     The appellant was waiting at his front gate when Abdul-Hadi arrived. He walked to the vehicle, reached inside and removed the backpack. He took it inside and began to unpack it. A young man entered and told him that there were “some people out there”. The appellant left the room where he was with the backpack and returned empty handed, apparently having hid it outside the house.

17     Abdul-Hadi left the appellant’s home and was followed by police to his own home at Croydon, where he was arrested. The appellant was seen by surveillance police to leave his house, enter his vehicle, drive around the block, and return to the house a few minutes later.

18     Shortly thereafter, police entered the house and spoke to the appellant. He denied any knowledge of the backpack and claimed to have just arrived home. A search warrant was obtained by telephone and was executed later in the afternoon. The backpack containing the Scuba tank was located under a sheet of corrugated iron in the backyard of the house next door to the appellant’s. He was arrested and conveyed to Federal Police Headquarters, where he declined to participate in a taped interview.

19     The principal witness in the Crown case was Abdul-Hadi. He co-operated with the police and undertook to give evidence against the appellant. Having pleaded guilty to his part in the affair, he was extended leniency accordingly. Simeonides refused to give evidence, and was not called. A number of police officers gave evidence, including officers involved in the surveillance of the appellant’s home on the day of his arrest. One of those officers, Federal Agent Lynette Keller, testified that she saw the appellant carrying the backpack as he and Abdul-Hadi walked from Abdul-Hadi’s vehicle to the home.

20     The appellant gave evidence at the trial, denying any involvement in the importation. He denied ever having met Simeonides, and his case was that Abdul-Hadi had falsely implicated him so as to reduce his own culpability. He denied having carried the backpack into his home on the day of his arrest, claiming that the backpack said to have been found in the house next door had been planted there by the police. His evidence was that he was not home at the time he was alleged to have taken possession of the backpack, and this was supported by the evidence of his wife and two other relatives.

The Appeal

21     A number of grounds of appeal were filed, but at the hearing senior counsel for the appellant refined them into two complaints about the trial judge’s summing-up. The first complaint was that the summing-up as a whole lacked structure and failed to present the opposing cases, with reference to the applicable law, in a coherent and logical fashion. The second complaint was that his Honour’s directions about corroboration of Abdul-Hadi were inadequate, in the light of the whole of the evidence. The two complaints are related and it was submitted that, in combination, they demonstrate that the summing-up was unfair and that a new trial is warranted.

22     The summing-up was quite long. The first part of it consisted of directions of law appropriate to the case, to which no exception was taken in this Court. The remainder of it was less conventional. His Honour did not summarise the evidence, although he did refer to salient parts of it when giving some of the directions of law. However, he embarked upon a lengthy summary of the addresses of counsel, apparently relying upon his hand written notes of them. I mean no disrespect to his Honour or to counsel when I say that that summary was somewhat rambling and, at times, repetitive. Indeed, towards the end of the summing-up and in the absence of the jury, senior counsel for the appellant at the trial (who did not appear before us) submitted that his Honour need not deal with his address further as it would be fresh in the jurors’ minds. His Honour agreed, and finished his summing-up shortly thereafter.

23     Certainly, the case for the Crown and the appellant could have been put to the jury more clearly and concisely than they were. It might have been preferable for his Honour to have devoted more time to a summary of the evidence and less to the arguments of counsel. Nevertheless, I consider that the summing-up, read as a whole, left the jury in no doubt about the issues of fact which they were called upon to decide. No complaint was made on behalf of the appellant at the trial that his case had not been adequately explained. In addition, his Honour’s directions about the burden and standard of proof, and his warnings about the testimony of Abdul-Hadi and other evidence in the Crown case, were emphatic and clearly favourable to the appellant. It cannot be said that the structure of the summing-up was such as to give rise to a miscarriage of justice.

24 His Honour directed the jury that it would be dangerous to convict the appellant on the evidence of Abdul-Hadi, an accomplice ,in the absence of corroboration. He went on to give the conventional direction about the nature of corroborative evidence. Strictly, those directions were unnecessary: see s164 of the Evidence Act 1995. All that was called for was a warning on the basis that the evidence of Abdul-Hadi might be unreliable: s165(1)(d). There is no doubt that his Honour’s directions, read as a whole, amounted to an adequate warning.

25     In the course of those directions his Honour did not refer to the fact that Abdul-Hadi had been dealt with leniently because of his undertaking to give evidence against the appellant. However, he did deal with that matter when summarising the addresses of counsel, explaining the relevance to sentence of an offender’s willingness to assist the authorities, and the jury could have been in no doubt about its significance. No redirection was sought by counsel at the trial.

26     The gravamen of the second complaint is that, having raised the issue of corroboration, his Honour failed adequately to explain what evidence was or was not available for that purpose. This matter was the subject of argument at the trial. His Honour referred to the telephone call records and the evidence of Special Agent Keller as evidence capable of amounting to corroboration, although he did add that he had not dealt with “all the examples of corroboration” which, he said, had been canvassed by counsel in their comprehensive addresses.

27     Later in the summing-up his Honour set out with greater specificity the evidence of telephone calls which he considered to be potentially corroborative. Clearly, that evidence was. So, of course, was the evidence of Federal Agent Keller that she saw the appellant walking to his home, carrying the backpack and in the company of Abdul-Hadi.

28     Before us, it was submitted that his Honour had failed properly to deal with the weaknesses in Ms Keller’s evidence. In particular, there was evidence that she had made a statement to another police officer, inconsistent with her testimony, to the effect she had seen Abdul-Hadi walk from his vehicle to the appellant’s home alone. In fact, his Honour referred to that evidence on several occasions and also gave careful directions about the reliability of her identification of the appellant, who was not previously known to her, as the man carrying the backpack. There was other evidence in the case adverse to Ms Keller’s credibility, to which his Honour also referred.

29 In addition, it was submitted that his Honour failed to direct the jury that Ms Keller’s prior inconsistent statement was evidence that she had in fact seen Abdul-Hadi walk to the house alone, and was not merely material bearing on her credibility: s60 of the Evidence Act. His Honour gave no direction about how that evidence might be used and, not surprisingly, counsel for the appellant at the trial did not ask him to. In the absence of such a direction, the jury would have no doubt treated the statement as evidence of the fact asserted. The artificial distinction between evidence relevant to facts in issue and evidence going only to credibility is maintained by lawyers, but not by the general community. It was partly in recognition of this fact that s60 was enacted.

30     Finally, it was argued that his Honour failed to deal with the substantial attack made upon the credibility of Abdul-Hadi, or to give an adequate direction about the assessment of witnesses generally. In fact, his Honour took the jury at some length through the defence submissions about Abdul-Hadi. Earlier, as I have said, he gave an appropriate warning about that evidence, emphasising the need to guage Abdul-Hadi’s honesty. At the beginning of the summing-up he gave the conventional directions about the assessment of the reliability of witnesses, both as to their honesty and their accuracy. Read as a whole, these directions were entirely adequate to convey to the jury the need for critical examination of the evidence of Abdul-Hadi and the reasons for it. Yet again, no redirection was sought.

31     His Honour did not refer to all the evidence capable of amounting to corroboration. As the Crown prosecutor before us pointed out, there are other aspects of the surveillance evidence which would have fallen into that category, together with evidence of what were said to be lies told by the appellant about his whereabouts on the day of his arrest. In the circumstances, this could hardly have prejudiced the appellant and it was not the subject of any application by trial counsel. Generally, I am satisfied that the summing-up was sufficient to identify for the jury the issues of fact to be determined and the principles of law to be applied. No miscarriage of justice has been established.

32     I would propose that the appeal be dismissed.

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