R v Kaldor

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v KALDOR [2004] NSWCCA 425

FILE NUMBER(S):
2004/1832
2004/1932

HEARING DATE(S): 6 August 2004

JUDGMENT DATE: 29/11/2004

PARTIES:
Regina (Appellant/Respondent)
Andrew Nicholas KALDOR (Respondent/Appellant)

JUDGMENT OF: Dunford J Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0794

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:
Mr C O'Donnell (Crown)
Mr R Hulme SC (Respondent/Appellant)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Ms T Howe) Crown
Legal Aid Commission (Ms S Calomeris) Respondent/Appellant

CATCHWORDS:
Conviction appeal
importation of heroin concealed in guitar
sufficiency of evidence of knowledge
circumstantial case
whether verdict unreasonable
indictment
accused charged as accessory
Crown case actually that he was principal using innocent agent
indictment not amended
whether allegation that agent was principal offender mere surplusage
effect of Criminal Code
sentence appeal by Crown
sentence manifestly lenient
offender resentenced

LEGISLATION CITED:
Customs Act 1901 s233B(1)(b)
Criminal Appeal Act 1912 s6(1), 7(2)
Criminal Code Act 1995
Crimes Act (Cth) s 16A

DECISION:
The appeal against conviction dismissed. The Crown's appeal against sentence allowed. The appellant sentenced to imprisonment for 7 years to date from 29 January 2004. A non-parole period of 4 years.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1832
2004/1932
DUNFORD J
ADAMS J
HOWIE J
MONDAY 29 NOVEMBER 2004

REGINA v ANDREW NICHOLAS KALDOR

Judgment

DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgments of both Adams and Howie JJ, and for the reasons given by Howie J, I agree with him that the indictment was adequate, that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, and that the appeal against conviction should be dismissed.
In particular, I agree with Howie J that a jury is generally better able to judge a case based on circumstantial evidence than a single judge or this Court. In this regard, I adhere to the view I expressed in R v Micallef (2002) 136 A Crim R 127, SLR 30 April 2004 at [44] that as a circumstantial case involves a consideration of the evidence in the light of the common experience of human affairs, it is essentially a question for the jury representing, as it does, the common experience of the community being comprised of men and women from different backgrounds, of different ages and with different experiences in life applying their collective knowledge of human affairs. That is not to say that there will not be cases of which Knight v The Queen (1992) 175 CLR 495 is an example (other examples are not easy to find) where an appellate court will conclude, in accordance with the principles enunciated by the High Court in M v The Queen (1994) 181 CLR 487 that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; but I am satisfied that this is not such a case.
I also agree with Howie J that the significance of the failure of the appellant to make any real attempt to determine the contents or provenance of the package delivered to the hotel in Vietnam was not diminished by the lack of detail as to the extent or nature of the relationship between the appellant and Mr Sandford. The jury could only consider the evidence which was before them and it was not for them to speculate on what might have emerged if further evidence had been adduced.
I also observe that the evidence of Mr Gurvich (T 9) was that “we both collected our bags from the baggage carousel and took individual trolleys and started to move forward to the immigration counter”, and then the appellant spoke about going to the toilet and Gurvich collecting the guitar and “meet him”. Apparently the appellant did not leave his luggage trolley with Gurvich as might be expected in the circumstances, but took it to the toilet with him, further suggesting that he had no intention of coming back to “meet him”. This, it seems to me, was a further circumstance which the jury was entitled to take into account.
In relation to the Crown appeal against sentence, I agree with Howie J.

ADAMS J: The appellant, Andrew Nicholas Kaldor, who was fifty-seven years of age at the date of the alleged offence, was convicted on 5 December 2003 of an offence set out in the indictment in the following terms –
“[that he] on 21 May 2003 at Sydney in the State of New South Wales did procure the commission of an offence by David Israel Gurvich against s233B(1)(b) of the Customs Act 1901, having imported into Australia prohibited imports to which section 233B of the Customs Act 1901 (Cth) applied, namely, consisting of a quantity of heroin not being less than the trafficable quantity applicable to heroin, contrary to sub-section 11.2(1) of the Criminal Code 1995 (Commonwealth) and paragraph 233B(1)(b) of the Customs Act 1901 (Cth).”
It is obvious that the terms of this indictment meant that Kaldor could not be convicted unless Gurvich was guilty of the principal offence. It is undisputed that the prosecution case was that Gurvich had not committed any such offence but was the innocent dupe of the appellant. Accordingly, Kaldor could not be convicted of the charge for which he was placed on trial. He appeals from his conviction, however, not upon this ground but upon the ground that the evidence did not justify the conclusion beyond reasonable doubt that he was aware in the relevant sense that the guitar which he gave Gurvich to bring through Customs at Sydney airport contained heroin. Kaldor contends, in terms of s6(1) of the Criminal Appeal Act 1912, that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
The role of this Court
The test provided in s6(1) of the Criminal Appeal Act 1912 has been considered in a number of cases, of which it is sufficient to refer to Jones v The Queen (1997) 191 CLR 439 where Gaudron, McHugh and Gummow JJ said (at 450-1, 452) –
“In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey said (at 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was ‘open to the jury’ to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that (at 493):
‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’
The majority judges explained (at 494) the application of the test as follows:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’
Gaudron J agreed (at 508) with the majority formulation of the test, as did Brennan J (at 501), although His Honour said (at 501-502) that the question as to whether it was ‘open to the jury’ to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was ‘upon the whole of the evidence … bound to have a reasonable doubt’ [Citing Dawson J in Chidiac v The Queen (1991) 171 CLR 432 at 451] or whether ‘the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused’.
McHugh J said (at 525) that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was ‘whether a reasonable jury must have had a reasonable doubt about the accused’s guilt’. McHugh J did not adopt the ‘open to the jury’ test because his Honour thought that such a test came ‘perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused’ and would constitute ‘an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial’ (at 525). However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.”
Accordingly, this Court is required to undertake its own examination of the evidence in order to determine whether the jury, acting reasonably, should have entertained a reasonable doubt as to the guilt of the accused. It is important to note that, in this case, the evidence adduced by the Crown was not the subject of substantial controversy and Kaldor called no evidence. Leaving aside the considerations arising from the jury’s constitutional role as fact-finders, it enjoyed no advantage over this Court in evaluating the evidence and determining Kaldor’s guilt or otherwise.

The facts

The Crown case relied almost entirely upon the evidence of Gurvich, who had been a good friend of the appellant for something like fifteen years. Gurvich lived in Melbourne. Kaldor lived in Queensland. They kept in touch with each quite frequently and, in about April 2003, Kaldor, who had travelled to Vietnam before, mentioned to Gurvich that he intended to go there again. It was Gurvich who suggested that, as he was shortly completing a project and had some time on his hands, he would like to accompany Kaldor, which was agreed. Gurvich, who is a project developer and builder, managed to get, though a friend of his, some work to do in Vietnam, which he used to obtain upgrades for himself and Kaldor from economy to business class.
Kaldor arrived in Vietnam a few days before Gurvich but nothing turns on this. They stayed at a hotel recommended by Kaldor. During the ensuing week, Kaldor and Gurvich spent some but by no means all of their time together. On the day before the two were due to return to Australia, Gurvich was informed through his office that their upgrade to business class had been approved for their return journey.
On the day before they left, Gurvich and Kaldor met for lunch and Kaldor told Gurvich that “he’d had a phone call, and he’d been asked to bring a parcel back to Australia, a guitar.” Gurvich asked, “Why would anybody want to buy a Vietnamese guitar, it couldn’t be that good”, to which Kaldor replied, “Well, probably cheap”. Gurvich thought that he asked Kaldor who the guitar was for but said that he probably did not get an answer. At all events, Kaldor did not tell him the name of the person for whom he was bringing the guitar home.
Gurvich first saw the guitar at about 4pm on the day of their departure. He and Kaldor had lunched together and, when they returned to their hotel to collect their luggage and go to the airport, the receptionist told Kaldor in his presence that a guitar had been delivered to the hotel for him. He and Kaldor had brought their baggage down to the reception area and Gurvich saw a black guitar case, shrink-wrapped in plastic, placed with their luggage. At some unspecified point, Gurvich said that Kaldor was somewhat uncertain about whether the guitar was going to be collected at Sydney or Melbourne and he was asked, whether he could take it to Melbourne, if necessary. Gurvich said that he would do so if he was able to do so.
Gurvich said that, near the reception counter of the hotel, he and Kaldor were writing out luggage labels which were being placed on the luggage by employees of the hotel. The luggage was loaded onto the back of a vehicle and he and Gurvich were taken to the airport. The evidence does not disclose what name was on the luggage label attached to the handle of the guitar. At the airport the luggage was placed on two baggage trolleys. The guitar was put onto Gurvich’s trolley, he thought probably because he had less luggage than Kaldor. Gurvich’s evidence is not clear on this point but I gather that it was placed on the trolley by the taxi driver who helped them unload. They went to the check-in counter but it was early and, as it happened, the counter was not yet open. When the counter opened, all of the bags were placed on the conveyor. Kaldor and Gurvich were informed that it was overweight. Gurvich said that Kaldor had done a lot of shopping in Vietnam, and this was why he had so much luggage. Gurvich protested that they were supposed to be travelling business class and should therefore be allowed sixty kilograms, which was the weight of their luggage. Gurvich was told that he needed to see the supervisor and left the counter to do so, asking Kaldor to wait with the luggage in the meantime. After some telephone calls, Gurvich obtained confirmation that the upgrade had been approved and he returned to the counter. The operator then let the bags go through for loading. Gurvich suggested, however, that the guitar should be handled as fragile baggage and the operator was asked to put the appropriate badge sticker on it. It appears that Gurvich did this without reference to Kaldor. The airline baggage ticket attached to the guitar was in Gurvich’s name as, indeed, was the case with much of the other luggage. There was no evidence that this was done at Kaldor’s instigation. Gurvich said that it happened merely because the luggage had been placed together on the conveyor belt at the counter.
In due course, Gurvich and Kaldor boarded the aircraft, which arrived in Sydney shortly after 7am on 21 May. Gurvich said that it was necessary to collect the luggage from the carousel and then go through the immigration checkpoint where passports were inspected. (This was, as it happened, a mistake. It is clear that the initial immigration check precedes baggage collection.) He said that he and Kaldor had collected their bags from the baggage carousel, placed them on trolleys and started to move forward to the immigration (sic) counter when Kaldor said that he wanted to go to the toilet. Kaldor took his luggage trolley with him and suggested that Gurvich “might like to collect the guitar from the fragile baggage counter and meet him”. Since the airline baggage ticket attached to the guitar was in Gurvich’s name, this seems readily explicable. Where Gurvich and Kaldor were to meet once the guitar had been collected and Kaldor had finished in the lavatory was not further clarified, subject to the possibility (mentioned below) that by this time Kaldor had already asked him to take the guitar with him thorough Customs. Otherwise, Kaldor’s suggestion as to where they should meet is ambiguous.
Gurvich went over to the fragile baggage counter, which was about twenty metres from the carousel and waited for about five minutes before the guitar arrived. He said that, at this point, he had his back to the toilets and had not seen where Kaldor had gone. When Gurvich collected the guitar from the operator, he turned and looked towards the toilets waiting for Kaldor to come out. When Kaldor did not reappear, Gurvich thought he might have missed him so he called him on his mobile phone to ask where he was. Kaldor said, “I’m in the line, I’m almost outside (or, possibly, ‘in the customs queue’)”. Gurvich asked, “Well, what do you want me to do?” He said in chief that Kaldor responded, “Can you come out and bring the guitar with you?” Gurvich agreed in cross-examination that, in his police statement (about which he had given a lot of thought and consideration), he had not mentioned any request by Kaldor to bring the guitar with him through Customs. He also said that Kaldor’s request may have been made at an earlier time. This was not specified but the only relevant earlier time was before Kaldor had gone to the toilet. Gurvich then took his trolley down to the Customs line and pushed all his bags and the guitar case onto the conveyor belt that passed it through an X-ray machine. A Customs officer asked him whether the bags were his, to which Gurvich replied in the affirmative. He asked him about the guitar and he said that it was not his. The officer asked, “Who does the guitar belong to?” Gurvich replied, “I don’t know who it belongs to, but I am carrying it for a friend of mine because he was overweight in his luggage.”
Kaldor first presented himself at the primary customs and immigration barrier at about 8.19am. It seems that the guitar was taken through the X-ray monitor a few minutes before 8.47am.
At the officer’s request, Gurvich then opened the guitar case and saw in it what appeared to be a brand-new guitar. The case and the guitar, together with Gurvich, were taken by Customs officers to a nearby room. As he turned around, Gurvich said that he saw Kaldor being escorted back into the Customs hall by two officers but said in cross examination that, when he saw Kaldor shortly after a customs officer had spoken to him (Gurvich) he “could see Andrew down the other end waiting for me”. They had a short conversation. Subsequently, Gurvich was interviewed by officers of Customs and the Australian Federal Police.
When a metal plate was unscrewed from the guitar, parcels were located inside. These parcels contained heroin.
It was not suggested either by the Crown or by the defence that Gurvich knew about or had anything to do with the heroin. Indeed, so far as the defence was concerned, his account of what happened was not substantially in dispute, although some refinements and qualifications were the subject of cross-examination. Gurvich said that he had met a man called Sandford on a couple of occasions and that he had lived in Melbourne but had since moved elsewhere. He gave a physical description. He said that he had met him a number of times in Melbourne, on one occasion when he was with Kaldor many years ago and then on other odd occasions he had seen him in a social context at various places after Kaldor had moved to Queensland.
Customs officers gave evidence that the suspicious item in the guitar was seen when it was X-rayed. They also gave evidence of a conversation with Kaldor shortly before he entered the interview room under escort. The conversation was as follows –
“Q. Mr Kaldor, is that your guitar? --- A. No.
Q. Whose guitar is it then? --- A. Barry Sandford. The guy is meeting us out the front.”
They all went into the interview room and Kaldor said that he needed to go to the toilet. He was permitted to do so but had to leave the door open for obvious reasons. He used the toilet, re-entered the room and the following conversation occurred –
“Q. What is your job? --- A. Taxi driver.
Q. Where do you live? --- A. [An address in Surfers Paradise]
Q. Are you booked on a flight to Surfers today? --- A. Yes.
Q. Are you travelling with the other gentleman? --- A. Yes.
Q. How long have you been away? --- A. Nine days.
Q. For holiday or business? --- A. Holiday.
Q. How do you know the other gentleman? --- A. He lives Melbourne. I used to live in Melbourne.
Q. Is that your guitar? --- A. No.
Q. Whose guitar is it? --- A. The guitar belongs to Barry Sandford, the guy meeting us at the front. I was supposed to pick up a guitar for Barry.
Q. Where did you get the guitar from? --- A. It was delivered to a hotel, The Saigon Pink 2 at the reception.
Q. When was it delivered to the hotel? --- A. It arrived yesterday.
Q. Was it delivered in your name? --- A. Yes.
Q. If the guitar was delivered to you, why did you not check it in under your name? --- A. We were originally travelling economy and were upgraded. My baggage allowance was 30 kilos and I had over 40 kilos. He had less baggage so he checked it in on his name.
Q. Do you have any receipts or documents for the guitar? --- A. No.
Q. Does your friend who the guitar belongs to have a telephone number? --- A. [Kaldor picked up a phone and read it out.]”

Kaldor was then asked some questions about signing his inwards passenger card, identifying his luggage and saying that he had packed it himself and was fully aware of the contents of the bag. It was examined and contained nothing of interest. One of the customs officers, who had left the room a short time before, returned and asked for a description of Mr Sandford. This was given to her by Kaldor. It was similar to that given in evidence by Gurvich. Shortly afterwards, Kaldor was searched and then asked, “What is going on? Will I catch my plane?” In the circumstances, this appears to be a somewhat strange question which, if it does not indicate innocence, certainly does not suggest any consciousness of guilt. He was told that it would be necessary for him to wait for the Federal Police who were on their way.

Federal Police interviewed Kaldor shortly after 10am. He was asked –
“Q. As you are no doubt aware your friend was found to be carrying a guitar which we believe has heroin in it. From what he has told us and what you told customs I believe that you may be involved in the importation of that heroin. I would like to question you in relation to this but before I do I remind you that you do not have to say or do anything as anything you do say or do will be recorded and may later be used in evidence. Do you understand? --- A. Yes, but I have done nothing wrong. What’s the other person said about me?
Q. I can’t answer that question. --- A. He is not involved. I was supposed to bring the guitar back to give to a friend. He only brought it in because I had too much luggage and it was checked in under his name.
Q. Before you say anything else I have to let you know what your rights are. You have the right to call a friend or a relative to inform them of your whereabouts. Do you understand that? --- A. Yes. [Kaldor said he would like to call someone whose name the officer could not recollect.]
Q. I am concerned that if you call someone you may tip off other persons whom we would like to arrest, so I will not let you do that at this time. Maybe sometime later when we know more about the situation. You also have the right to call a legal practitioner of your choice and speak in private to them and arrange for them to be present during any interview. Do you understand that? --- A. I want to call a solicitor.”
Kaldor was provided with a telephone book and telephoned one or more solicitors. At about 12.30pm a solicitor attended at the interview room and had a private conversation with Kaldor. It appears that the police were informed that Kaldor was too tired to take part in a record of interview at that time and he was taken to a police station to be charged and for the question of bail to be considered. Whilst Kaldor was in the interview room he was asked a number of times by police whether he would be prepared to participate in a controlled delivery of the guitar. He agreed to do so but, in the result, it did not take place for reasons that are not presently relevant. It also appears, though this is somewhat uncertain, that police did attempt to locate Sandford in the departure area but without success.
A number of individual packets were found in the guitar. The powder contained in them weighed 727 grams at an average of about 66% purity, yielding 479.3 grams of pure heroin. Although the guitar bore the brand “Magnum” and was in a bag bearing the brand “Fender”, there was no evidence as to its value. It remains to note that Sandford was, it appears, located in Melbourne but declined to be interviewed. It also appears that the telephone number given by Kaldor to police was indeed Sandford’s. Kaldor was not further interviewed.
Kaldor did not give evidence or call any witnesses.
The elements of the charge
I have already noted the fact that, as it was not suggested that Gurvich was himself involved in any criminal enterprise, let alone that of an offence under the Customs Act 1901, Kaldor could not be convicted of the offence with which he was charged, which was specifically brought under s11.2(1) of Criminal Code Act 1995 (the Code). As counsel both for Kaldor and the Crown agreed in this Court, the Crown case should have been framed in terms of s11.3 of the Code –
“11.3 Innocent Agency
A person who:
(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.”
The indictment, in terms, alleged that Kaldor was an accessory before the fact, using the language of s11.2(1) of the Code, which was also identified in the charge as the relevant provision –
“11.2(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.”
There is no doubt that the learned trial judge thought that this indictment was laid under that provision and not under s11.3, having mentioned it during an argument on the second day of the trial as to whether the Crown’s application for the jury to have a copy of the indictment should be acceded to. Shortly after lunch on the same day, his Honour received a note from the jury in the following terms –
“Could the jury please have the actual charges reconfirmed in layman’s terms? (Procuring and trafficking)”
His Honour, without at first seeking submissions from counsel, said, amongst other things –
“I consider it is appropriate that I indicate to you, in relation to the word ‘procure’, that it will be on the Crown to prove that it was the accused who intentionally caused or brought about the commission of the offence by David Israel Gurvich having imported into Australia certain goods.”
The Crown prosecutor then said –
“I don’t know if it is confusing the jury, your Honour, but the commission of an offence by David Gurvich, the Criminal Code does provide for use of an innocent agent in that regard.”
After saying that he thought that “that would unnecessarily confuse the matter”, his Honour said –
“I would think what the jury [is] … properly concerned with, is the word ‘procure’ and that, as I read the dictionary, definitions of procuring requires a causal link between the act of the procurer, which in this case is the accused, and the conduct of the other person, that being Mr Gurvich. Thereby, as I say, that the conduct of Mr Gurvich in importing the prohibited substance into Australia by Mr Kaldor, the accused, that conduct was that of Mr Kaldor or the accused, intentionally caused or brought about that conduct (sic).”
The Crown prosecutor agreed with this answer to the jury’s question. It is obvious, however, that this explanation was limited to the meaning of “procure”.
At the close of the Crown case an application for a directed verdict was made by counsel for Kaldor. The sole ground of this application was stated by his Honour as follows –
“Counsel for the accused submitted that an examination of the evidence, particularly the evidence of the witness Mr Gurvich, does not support the indictment, that the accused procured the commission of the offence by David Israel Gurvich”.
The Crown’s response to this submission was the contention that, whilst there was no direct evidence of any awareness by the accused of the presence of a prohibited substance in the guitar, the inference that he was so aware was justified by references to the circumstances as a whole. The trial judged noted –
“Counsel agreed that the jury would be directed that the matter for decision in this case is whether the accused did intentionally cause or bring about the commission of the offence by Mr Gurvich. I am concerned as to whether or not, on the evidence, it could be said that that evidence could support a verdict that the accused did intentionally cause or bring about the commission of the offence by Mr Gurvich.”
It seems to me that, despite his Honour’s earlier reference to s11.2 of the Code, both he and counsel understood the issue to be simply whether Kaldor used Gurvich as his instrument or agent to import the heroin and that whether Gurvich was himself guilty of an offence was immaterial. This was, however, a material misreading of the indictment, upon which Kaldor could only be convicted if Gurvich had committed the offence of importing the heroin.
When his Honour came to directing the jury he did so in the following terms –
“The accused is not charged with importing a prohibited substance into Australia. That is not the charge. The charge is that he did procure the commission of an offence by David Israel Gurvich of having imported into Australia a prohibited substance, namely heroin….Those words ‘did procure’ come from the Commonwealth Criminal Code. Therefore…what this charge is, is that the accused did something which brought about David Israel Gurvich importing a prohibited substance into Australia. I indicated to you earlier that ‘procure’ has a normal dictionary meaning…to cause or bring about. So, and I hope this is of assistance to you, did the accused cause or bring about the commission of the offence of the importation into Australia of a prohibited substance by David Israel Gurvich? I repeat that. Did the accused cause or bring about the commission of the offence.”
On the face of it, this passage rested fairly and squarely on s11.2(1) of the Code, namely charging Kaldor with having procured Gurvich’s crime, since Gurvich could not relevantly have imported the drugs unless he knew or believed it likely that the guitar contained them. But later language used by his Honour was more ambiguous, leaving open the possibility that Gurvich’s “importation” was innocent and that Kaldor’s guilt was established if Gurvich was the instrument by which Kaldor imported the heroin –
“Did the accused mean or intentionally cause or mean to cause the importation of the prohibited substance heroin into the country. That is what this case has really hinged upon so far as the evidence is concerned…As I have already indicated, the question is an essential ingredient, did the accused intentionally cause or bring about the commission of an offence by David Gurvich? I have already indicated that the intention would also be looked at in accordance with the Commonwealth Criminal Code, did the accused mean to cause or bring about the importation of the prohibited substance by Mr Gurvich.”
His Honour then went on briefly to outline the circumstances upon which the Crown relied from which “you could infer that the accused intended or meant to cause Mr Gurvich to import the prohibited substance into the country”.
This was repeated at the end of his Honour’s review of the evidence in the following way –
“But we really come down to this question of the evidence and whether or not, on the evidence, you can find beyond a reasonable doubt that the accused intended or meant that David Israel Gurvich import a prohibited substance into Australia.”
The ambiguity of language was never corrected. However, no application for re-direction was made by either counsel as to this characterisation of the crucial question for determination. His Honour’s charge to the jury continued on the following day and this question was repeated to the jury without significant change.
The question left to the jury following these directions as implicitly agreed to by counsel on both sides was not the question distinctly presented by the terms of the indictment, namely whether Gurvich having been guilty of the offence of importing heroin, Kaldor had induced him to commit it. Rather, the case left to the jury was whether Kaldor had used Gurvich as his (innocent) agent to import the heroin. Having regard to Gurvich’s account at the hotel reception and the airport, there can be no doubt that Kaldor was indeed importing the guitar case into Australia, whether or not Gurvich was also doing this.
The introduction of agency, whether under s11.2(1) or 11.3 of the Code, was an unnecessary complication in what was essentially a very simple case. Indeed, there was no need for the Crown to insert Gurvich’s involvement in the indictment at all. It is clear that, by the time the guitar case was at the fragile baggage counter it had then been imported, although no doubt the process of importation continued up to the time it was seized by the customs officers. It was never a part of the case or of anybody’s understanding of it, that Gurvich had himself committed an offence, despite the terms of the indictment.
In this Court, counsel for Kaldor noted the problem with the indictment but took no point about it on the ground that, at all events, it could be cured by application of s7(2) of the Criminal Appeal Act 1912. That provision permits the Court of Criminal Appeal to substitute a verdict on an alternative charge where “on the finding of the jury it appears…that the jury must have been satisfied of facts which proved the appellant guilty of that charge” but only where “the jury could on the indictment have found the appellant guilty of” the alternative offence (emphasis added). Here it could not be said that a verdict on the basis that Gurvich was an innocent agent was an alternative open on the indictment, which alleged that he had committed an offence procured by Kaldor.
The only answer, as it seemed to me, is that there was an implicit, pro tanto amendment of the indictment so that the charge which went to the jury alleged that Kaldor was the principal offender and Gurvich was his innocent agent within the meaning of s11.3 of the Criminal Code. Alternatively, the words “did procure the commission of an offence by David Israel Gurvich against s233B(1)(b) of the Customs Act 1901 having” were implicitly omitted as surplusage with a consequential omission of the reference to “subsection 11.2(1)” of the Criminal Code. As I understand it, this is the solution proposed by the other members of this Court, for the persuasive reasons set out in the judgment of Howie J.
Although I was initially attracted to this solution, I have ultimately come to the view that it is unsatisfactory, essentially for the reason that the indictment was not actually amended at all. At common law, an indictment cannot be amended: Maher v The Queen (1987) 163 CLR 221 at 230. Sections 20 and 21 of the Criminal Procedure Act 1986 provide for amendment of indictments but this can only be done by the prosecutor (by leave or with the consent of the accused) or by order of the Court. There was no order and the prosecutor did not actually amend the indictment.
In R v McKinney and Judge (NSWCCA, 6 September 1993, unreported), the indictment charged the appellants with, amongst other offences, “breaking and entering a dwelling house, assaulting and inflicting grievous bodily harm while therein (s110 Crimes Act 1900)”. It was contended that, as this charge required proof both of an assault and the infliction of grievous bodily harm, it disclosed no offence. It was clear that the elements of the offence did not require proof of assault, which was a mistaken reference to another offence in the relevant section of the Crimes Act 1900 creating the offences. Accordingly, the indictment specified all three necessary elements and one unnecessary element. The error was held to be merely technical and of no consequence. If I may respectfully say so, this is plainly correct. However, the situation in this case is significantly different. The charge here was entirely correct and undoubtedly disclosed an offence. In its terms, however, the accused could only be “taken to have committed the principal offence” if the Crown proved that Gurvich had himself committed the principal offence. R v Smith and Kirton (1990) 47 A Crim R 43 was a case where the Court rejected the submission that the contentious phrase (assault and robbery) was duplicitous, holding that the reference to assault was mere surplusage.
The words that I have identified as possible surplusage, were not surplusage at all in respect of the charge to which the indictment explicitly referred. As the indictment stood, proof that Gurvich had committed the offence alleged against him was an essential element of the charge against Kaldor and not merely a particular of evidence. In this respect the Code is no different to the common law. The result of the error made below is that the record wrongly shows that Gurvich committed a serious crime of which he was not even charged. It is clear that, in a practical sense, Kaldor has not suffered any substantive or procedural injustice, except to the extent that he must have been acquitted on the indictment as it stood. But to my mind the record – which cannot now be corrected unless this appeal be upheld and a new trial conducted on a proper indictment – demonstrates a judgment which was simply never made and, with respect for those with whom I differ on this point, I do not agree that this is of no moment. I add for completeness that s11.2(1) of the Code does not assist, since Kaldor had not aided, abetted, counselled or procured the commission of an offence by Gurvich.
There was certainly a misunderstanding – shared by all participants in the trial – as to what proved the elements of the charge in the indictment, but its terms were unambiguous. When Kaldor pleaded not guilty, issue was taken with every element necessary to be proved in the charge laid and he must have been acquitted if the Crown failed to prove every element. In the result, he was convicted upon an indictment that required proof beyond reasonable doubt of the element that he had procured the commission of a crime by Gurvich when there was no evidence that Gurvich had committed such a crime. Put otherwise, he was convicted of an offence upon which he had not been arraigned, to which he had not pleaded and which the jury had not been sworn to try. To my mind, this is a serious error of law.

The relevant knowledge

It was necessary for the Crown to establish beyond reasonable doubt that Kaldor intended to import a narcotic drug. Proof of this intention would be satisfied if the prosecution established that Kaldor knew that the guitar case contained or was likely to contain a narcotic drug of any quantity: Kural v The Queen (1987) 162 CLR 502 at 505; Pereira v DPP (1988) 82 ALR 217; 35 A Crim R 382; R v Vergara [2001] NSWCCA 24. It appears that the Code does not affect this requirement: Regina v Narongchai Saengsai-Or [2004] NSWCCA 108.
The Crown submitted that the following circumstances lead to the inference, beyond reasonable doubt that Kaldor was aware that the guitar case contained a prohibited drug or it was likely that it did so –
(i)           Kaldor did not tell Gurvich whom the guitar was for;
(ii)it was inherently unlikely that someone would want to bring a guitar to Australia from Vietnam when that guitar was described by Kaldor as “probably cheap” and which was heavy;
(iii)         Kaldor did not examine the guitar;
(iv)         there were no receipts or documents for the guitar;
(v)Kaldor’s behaviour at Sydney airport when he suggested that Gurvich should collect the guitar, leaving Gurvich after indicating that he was going to the toilet and stating to Gurvich on the telephone that he was “nearly outside” and asking him (expressly or implicitly) to “come out and bring the guitar” with him;
(vi)it was inherently unlikely that a man fitting Kaldor’s description of Sandford would want a cheap electric guitar;
(vii)the inconsistency between Kaldor telling Gurvich in Vietnam that the guitar was to be delivered to Melbourne and his statements to customs officers that Sandford was waiting at Sydney airport for the guitar; and
(viii)the inherent unlikelihood of Sandford travelling to Sydney to pick up a cheap electric guitar.

Of course, all these matters need to be considered together as strands in a suggested cable of guilt. However, it remains necessary to examine each one, if only because the Crown contended that each is suspicious and, taken together, demonstrated Kaldor’s guilt. It seems to me that some of these matters are trivial, if not irrelevant, whilst none is decisive and that, even when taken together (as, of course, they must), they fall far short of proof beyond reasonable doubt of Kaldor’s guilt.
As to the first, Gurvich’s evidence was far from categorical that he asked Kaldor whom the guitar was for. I have already pointed to this evidence. Not only did he say that he thought he asked the question, he also said that he “probably” did not get an answer. At all events, not every question is answered by friends in conversation. It would depend, amongst other things, upon whether Kaldor was paying any attention to Gurvich at that point. If the point is that, asked for or not, Kaldor did not tell Gurvich who requested him to bring the guitar home, this seems to me to be inconsequential. As to the unlikelihood of anyone – in this case Sandford or someone in his position – wanting to have a guitar brought from Vietnam which was heavy and “probably cheap”, it is clear that Kaldor did not assert that the guitar was cheap. His answer, as reported by Gurvich, was obviously a speculative explanation for somebody wanting to buy a Vietnamese guitar which, Gurvich supposed, could not be very good. It is clear that Gurvich himself was speculating about the quality of Vietnamese guitars. More fundamentally, there was no evidence that suggested that the guitar was Vietnamese or that Kaldor or Gurvich for that matter knew its place of manufacture. As to its being heavy, it appears that Gurvich had but one bag and it was not reasonable to infer that carrying the additional item comprising the guitar was an unreasonable imposition in any sense. The reason for its weight was obvious: the additional weight of the heroin would be unlikely to be noticed. But this would be effective also to conceal the concealed parcels from Kaldor.
The third alleged circumstance relied on by the Crown is that Kaldor did not examine the guitar. This is not correct. It seems certain that that Kaldor did not examine the guitar once it had been delivered to the hotel but this is understandable when it was shrink-wrapped and he was bringing it for Sandford whom he knew. There is no evidence one way or another as to Kaldor’s previous contact with the parcel. It follows that there is no basis for concluding that he had not examined it. There was also no evidence that he asked or inquired about its provenance. But that cannot justify the conclusion that therefore he made no such inquiry or that he probably did not or even that he apparently did not. It is simply a matter about which there is no evidence, one way or the other. Accordingly, I am respectfully unable to agree with Howie J that the jury were entitled to infer that there had been such a failure and from that fact to draw an adverse inference about his guilt.For all that is known, Kaldor may well have seen the guitar, examined it, seen it placed in the case and shrink-wrapped and arranged for its delivery to his hotel.
It is worth, perhaps, making the point that a person who went so far as to open up the guitar to make sure it contained no drugs, would almost certainly have the suspicion that it might contain them. As there is no basis for concluding that he did not examine the guitar, short of unscrewing the back plate, it follows that the truly crucial fact was not lack of examination but that Kaldor agreed to bring the guitar case into Australia on behalf of someone else when it contained drugs that could only be discovered by disassembly.
On the face of it, this might be a suspicious circumstance. But how far does it really go? It is one thing to accept a parcel from a stranger, quite another to accept one from a friend. After all, Gurvich (who knew Sandford, but not perhaps all that well) obviously had no suspicions at all about the guitar – he was perfectly happy to take it through Customs at Sydney airport, presumably because he trusted Kaldor. There was no evidence about the relationship between Kaldor and Sandford. So far as the evidence went, he may have been a close and trusted friend or he may have been a mere acquaintance. No assumptions about this matter can be made and commonsense does not help. It was for the Crown to prove that the reason that Kaldor brought the guitar from Vietnam to Australia was that he intended to import prohibited drugs. It seems to me that the mere fact that he brought in a guitar, which he had not troubled to disassemble, for someone else whom he knew, and possibly knew well, is no more than sufficient to give rise to a suspicion of guilt, there being no evidence at all as to the circumstances in which the guitar case came into his possession, except that it was at Sandford’s request. I appreciate that this was not the only incriminating circumstance but, so far as it goes, I do not think that it amounts to much.
Except for what happened on arrival at Sydney Airport, the other circumstances relied on by the Crown are insignificant. The lack of documentation proves nothing. The Crown prosecutor at the trial and, for that matter, the Crown prosecutor in this Court was unable to suggest how the lack of documents was material. The sixth point relied on by the Crown depends upon an assumption as to the value of the guitar, which had no evidentiary basis, but is at all events a non sequitur. Persons of any description might want an electric guitar. Indeed, persons of any description might want a cheap electric guitar and they might want it for many reasons. There is nothing in this point. So far as the inconsistency about the destination of the guitar is concerned, I do not think this amounts to much either. At the most, the appellant told Gurvich that it might be necessary to deliver the guitar in Melbourne. The fact that he apparently knew or at least believed that Sandford was in Sydney waiting to collect the guitar is simply evidence that, after the conversation with Gurvich, it was no longer necessary to request this favour of him. His apparent readiness to permit Gurvich to carry the guitar to Melbourne, should that prove necessary, suggests that he was unaware of its cargo rather than incriminates him. As to the last point made by the Crown, there is no evidence that Kaldor suggested that Sandford had travelled to Sydney for the specific purpose of picking up the guitar, cheap or otherwise. Kaldor said nothing about why Sandford might be in Sydney, simply asserting that he believed he was waiting at the airport.
This brings me to what happened on arrival in Sydney. There is nothing of itself suspicious in Kaldor going to the toilet and asking Gurvich to collect the guitar from the fragile baggage counter. There is no evidence that Kaldor did not go to the toilet and no reason to suppose that he did not. The time involved was not, it seems, unusually long. In light of Gurvich’s concession in cross-examination as to when Kaldor asked him to bring the guitar through Customs, two possible scenarios arise. On the assumption that Gurvich’s evidence in chief is accepted, the suspicious circumstance is that, having asked Gurvich to collect the guitar, Kaldor went through Customs without seeking Gurvich out to carry the guitar through Customs himself. On the assumption that Gurvich’s concession is accepted, Kaldor might well have thought that Gurvich had picked up the guitar and would go through Customs without waiting for him. On this scenario, the suspicious circumstance is that Kaldor asked Gurvich to take the guitar through Customs. The crucial question is: why did Kaldor act in this way? A consideration of the possible explanations is therefore inescapable. This is not to deny the Crown of the probative value of the evidence but to evaluate that probative value.
The Crown case assumes the correctness of the first scenario. It is submitted that Kaldor had not acted thoughtlessly in going through Customs by himself without waiting for Gurvich, but deliberately manipulated Gurvich into carrying the guitar through Customs because Kaldor knew that it contained prohibited drugs. The strength of this reasoning depends upon a number of assumptions, of which the major one to my mind, is that Kaldor could not reasonably have supposed that Gurvich had collected the guitar and already moved through Customs. If this were an inference rather than assumption, then it would be a significant pointer to Kaldor’s guilt. It depends, in part, on the times involved, on the geography of the baggage collection area and the extent to which it was crowded. There was no evidence on either of the latter matters (indeed, the evidence does not disclose where the fragile baggage counter was in relation to the Customs barrier) and the important time lapse – between Kaldor’s going to the toilet and his passing through Customs – remained vague. The problem with going beyond suspicion in respect of this circumstance depends, I think, upon assumptions which the Crown made no attempt to establish by evidence and, in the result, are no more than speculative. I respectfully agree with Howie J that “the possibility that, having gone to the toilet, the appellant merely forgot about Gurvich and the guitar case” should be rejected. However, it is unnecessary to suppose that Kaldor forgot about Gurvich and the guitar case. Inferring that Kaldor made a deliberate decision not to worry about bringing the guitar case through Customs as he (correctly) thought Gurvich would do, if he asked, the question is whether this proves that he knew it contained heroin or merely that he took convenient advantage of Gurvich’s helpfulness. Or, as I have mentioned, he may simply thought that Gurvich had already taken it through. It seems to me that Kaldor’s behaviour is entirely explicable by his simply taking advantage of Gurvich’s apparent willingness to carry the guitar for him. After all, it appears that Gurvich had far less luggage that Kaldor to carry. Moreover, such behaviour is consistent with a belief that the guitar was not especially valuable. If Kaldor was not all that concerned about the guitar, why would he bother to take it through personally? Thoughtless, careless, impolite it might be, but I do not think that it is possible to conclude that it established that he knew that there were drugs in the guitar.
The second scenario differs for the first to the extent that Kaldor’s request to Gurvich to take the guitar through Customs together with their agreement to meet, could well have meant that he expected Gurvich to collect the guitar case and meet him outside the Customs area, even though Gurvich apparently thought that they would meet after he had collected the guitar and Kaldor had finished in the toilet. The suspicious circumstance is said to be that Kaldor asked Gurvich to take the guitar through Customs. However, Kaldor’s need to go to the toilet may well have been genuine and to ask his companion to collect the guitar, he having the receipt and far less luggage, and make his (Gurvich’s) way through Customs (implicitly) without waiting for him does not seem to me to be more than suggestive. Of course, if Kaldor did not think that the guitar contained anything illicit, there is nothing suspicious in his asking Gurvich to take it through Customs for him. Thus the conclusion that the request is suspicious depends upon an assumption about the very fact that it is suggested it proves. Nor do I see that assumptions about what most people might or might not do about asking travelling companions to take innocent luggage through Customs, which anyway strike me as largely speculation (and really as code for what I might do), provide a sound basis for drawing an inference about what Kaldor’s reasons actually were.
I am very far from suggesting that Kaldor’s conduct at the airport was not suspicious at all but, in my view, innocent explanations remain reasonably and ineluctably open and their hypothetical character is logically no different from those urged by the Crown. Shortly put, what Kaldor did is consistent both with his guilt and his innocence.
Howie J considers that it would be extremely unlikely that an innocent person would be entrusted with the delivery of a cargo so valuable as half a kilogram of heroin, mentioning the possible failure to comply with the request, for example because of excess baggage costs. The evidence demonstrated that arrangements to avoid excess baggage costs were made by Gurvich at his own instigation at the last minute when he and Kaldor were at the airport. This argument was not put to the jury, nor was it mentioned by the prosecutor in this Court. With respect, I find it unconvincing. Once Kaldor had agreed to take the case, it seems to me highly unlikely that he would leave it behind. It was delivered to his hotel and placed with his luggage by the hotel staff, without his inquiry. Once it got to the airport it was going to Australia. Maybe there was some slight risk that Kaldor would simply decide that he could not be bothered but he could scarcely leave the case at the airport. The assessment of this risk involves far more speculation, including about the nature of the relationship between Kaldor and Sandford, which I have already discussed, than I feel justified in undertaking and I do not consider that it would have been appropriate for the jury to undertake. There may be significant advantages, moreover, in using an innocent agent to carry drugs past a Customs’ inspection. With respect, I cannot see that this point is much more than a straw in the wind.
Militating to some extent against the likelihood of Kaldor’s guilt are the facts that he drew attention to himself at Hanoi Airport by having excess luggage, for which it is obvious he was not ready, mentioned Sandford to the police immediately and, so far as it went, what he told the police about the telephone number was correct. Furthermore, it appears that Sandford was known also to Gurvich. Gurvich’s description of Kaldor’s conduct when he saw him after the telephone call was that he was “waiting” for Gurvich to come through Customs. By that time it must have been obvious to Kaldor that all items were being X-rayed as they went through the Customs barrier and, therefore, that if there was indeed heroin in the guitar it would be detected. Yet he made no attempt, so it seems, to abscond.
All the circumstances to which I have referred must, of course, be considered together. The only really significant suspicious facts – that Kaldor carried a sealed item for another person and that he acted in a way that meant that his companion rather than himself ran the gauntlet of Customs’ inspection at the airport – together raise a substantial suspicion of guilt. But, absent assumptions with no evidentiary basis, they are also consistent with his innocence.
It seems to me, with great respect, that the argument articulated by Howie J (with which Dunford J agrees) in substance reverses the onus of proof. His Honour states that it is inappropriate “to deprive a piece of evidence of its potential value in proving the Crown’s case simply because its probative force may have been affected by some other fact that was not in evidence”. This reasoning, in substance and effect, is that a suspicious fact, or collection of facts, that potentially establishes guilt, actually does so unless some other fact not in evidence, though reasonably possible (or, in other words, not excluded), is established. The only possible source of the justifying fact is the accused and to reason in this way, in my respectful view is implicitly either to reverse the onus of proof or draw an impermissible inference from the accused’s silence. With unfeigned respect for Dunford and Howie JJ, I think that this is a fundamental error of principle for which it is unnecessary to cite more than Azzopardi v The Queen (2001) 205 CLR 50 and Peacock v The King (1911) 13 CLR 619 per Griffiths CJ at 634: “[The] circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.”
I wish to take up one other matter of principle. Dunford J, whose judgment in draft I have also had the benefit of reading, considers that “a jury is generally better able to judge a case based on circumstantial evidence than a single judge or this Court”. Although these observations are obiter dicta, they raise such an important question that I feel a brief respectful response is necessary.
There is no doubt that jurors are well qualified to make the determinations of fact that are entrusted to them in criminal trials and I do not see any distinction in this regard between circumstantial and other cases. However, the assertion that juries are generally superior to judges in this regard is, if I may respectfully say so, a speculative and, ultimately, unhelpful supposition. Our system of trial by jury does not assume – and has never assumed – that any such superiority exists. Rather, it is a fortunate accident of our history that, since early times, citizens have been involved as jurors in the administration of justice, especially criminal justice. The benefits of this involvement are obvious and substantial. But this does not arise from or depend upon any assumptions about the relative fact-finding abilities of judges or juries, a matter which is necessarily guesswork since, although judges must give reasons for their decisions, the process of decision making by juries is completely opaque.
At all events, it is the inescapable duty of this Court, under s6(1) of the Criminal Appeal Act on any appeal against conviction to “allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence…”. The proper approach to this matter is the subject of well-settled authority, which I have set out above. The deference to be properly allowed to the jury’s verdict results from its constitutional position as the primary fact-finder and the advantage that will usually flow from having seen and heard the evidence about which it is necessary to make a judgment: it does not depend upon any assumption about their superior ability to assess “the conduct of persons”, especially, I might add, where – as here – they know nothing or next to nothing about the individual whose conduct is in question. I have no difficulty in acknowledging the considerable usefulness of a jury’s ability in evaluating general standards of behaviour but it seems to me to be self-evident that the question of what has motivated or what is known or believed by particular individuals is a very different question indeed and the supposition that what would generally be the case establishes what is so in an individual case is plainly unreasonable, for all that it might give rise to a suspicion or even a probability. Indeed, it seems to me, that it is likely that this flawed reasoning has led to the guilty verdict in this case.
Commonsense judgments, of course, are both necessary and appropriate but this cannot mean that analysis of the facts is not also essential, in particular an examination of the assumptions upon which the commonsense conclusions are based. It is this examination that, in this case, establishes that the verdict is unreasonable in the relevant sense.
For these reasons I consider that the verdict is unreasonable in the sense that the jury ought to have had a reasonable doubt about Kaldor’s guilt and, accordingly, the appeal should be allowed, the conviction quashed and a verdict of acquittal entered.

As I am in the minority in respect of the conviction appeal, it is necessary for me to consider the Crown appeal against sentence. Given Kaldor’s guilt, I agree with the other members of the Court, for the reasons given by Howie J, that his sentence was significantly less than the learned sentencing judge’s discretion permitted. I also agree with the orders proposed by his Honour and the reasons for them.
HOWIE J: I have had the considerable advantage of reading the judgment of Adams J in draft and gratefully adopt the facts of the matter as set out in his reasons. Unfortunately I cannot agree with his Honour’s conclusion that the evidence in the Crown case was insufficient to justify the conviction of the applicant and, in particular, I do not believe that the conviction is either unreasonable or that it cannot be supported having regard to the evidence. I also wish to add some further comments as to the form of the indictment.
Form of the indictment
It was unfortunate, to say the least, that the Crown case was presented in such a confused understanding of the legal ramifications of the very simple factual issue that arose on the evidence to be called by the Crown. As Adams J points out, the only issue in dispute was whether the appellant knew to the required degree that the guitar case contained heroin when he caused it to be imported into Australia. The Crown having determined not to prosecute Gurvich for any participation in the importation, he was obviously to be presented as an innocent agent of the appellant in his attempt to bring the guitar case from the luggage hall through the Custom’s check and onto the concourse where, on the Crown’s case, the appellant would be waiting to take possession of it. It is important to bear in mind that the importation of the guitar case was complete before Gurvich took it into his possession from the fragile goods area of the luggage hall. The Crown case was in effect that the appellant by a ruse had caused Gurvich to carry the guitar case through the Customs check because the appellant knew that the guitar case had heroin inside it.
However, despite the Crown’s efforts to unduly complicate the matter, this was how the issue was ultimately left to the jury. It was never suggested to Gurvich in cross-examination of him that he was aware of the contents of the guitar case at any time before the Customs officers stopped him. There was, at the end of the day, no suggestion made to the jury by counsel or the trial judge that Gurvich may have been implicated in the importation of the drug. It was accepted that the appellant caused the guitar case to be imported into Australia, at least insofar as it arrived in the luggage hall of the Sydney terminal. The only issue left to the jury was whether when he did so he was aware that it contained a narcotic substance. The appellant’s actions after the importation of the guitar case were relied upon by the Crown as evidence of his intention or knowledge at the time of the importation.
Adams J has in detail set out the manner in which the issues were left to the jury by the trial judge during the summing up and has quoted from his Honour’s directions with regard to the terms of the indictment and his explanations to the jury of what the Crown had to prove before they could convict the appellant. I agree with Adams J that, despite the considerable complication to what was a remarkably simple case caused by the form of the indictment, at the end of the day the jury could have had no doubt as to the issue that had to be resolved by them. There is, in my opinion, no possibility of a miscarriage of justice arising by reason of the terms of the charge or the manner in which it was explained to the jury notwithstanding that there was some confusion arising from the way the charge was framed.
There is, however, no ground of appeal based upon the form of the indictment or the inconsistency between the allegation set out in the charge and the evidence presented by the Crown. Mr Hulme SC, who appeared for the appellant on the hearing of the appeal, conceded to the Court that the appellant could have been convicted of the offence of importing the heroin notwithstanding the form of the indictment. Although the conduct of counsel both at trial and on appeal cannot absolve this Court from ensuring that the accused was lawfully convicted of the offence charged in the indictment, in my view the concession was well founded and ought to be accepted.
It is important to note that the offence under s 233B(1)(iii) of the Customs Act, which was the foundation of the charge brought against the appellant, is one of importing narcotic goods. The Customs Act contains no provision relating to the determination of criminal responsibility, either generally or with respect to an offence under s 233B. Although there are some provisions found in the subsections of s 233B that are concerned with proof of an offence under that section, none are relevant to the issues presently before this Court. Provisions relating to criminal responsibility generally and which apply to an offence under s 233B are to be found in the Criminal Code (the Code). The inter-relationship between the provisions of the Code and s 233B(1) was considered in R v Saengsai-Or [2004] NSWCCA 108. The elements of the offence of importing were put to the jury in the present case consistently with this.
Criminal responsibility for an offence to which the Code applies is generally determined in accordance with s 3.2 of the Code. That provisions is as follows:
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
According to this provision, as it applies to an offence under s 233B(1)(iii), the appellant was guilty of the offence if he imported the guitar case into Australia (the “physical element” of the offence) intending to import the drug (the “fault element” of the offence). An intention to import the drug could be inferred if the jury found that the appellant knew that the case contained heroin or was aware of the real chance that it did. This is, in effect, how the matter was left to the jury: that is on the basis of normal criminal responsibility for the offence of importing narcotic goods as set out in R v Saengsai-Or.
Provisions relating to extended criminal responsibility for an offence are contained in Division 11 of Part 2.4 of the Code. That Division contains provisions dealing with the following: attempt (s 11.1); complicity and common purpose (s 11.2); innocent agency (s 11.3); incitement (s11.4); and conspiracy (s 11.5)
Section 11.2 relevantly states:
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
That provision, in its terms, does not create an offence but merely states a way in which a person may commit an offence even though not falling within the terms of s 3.2 of the Code. In accordance with the principles at common law, a person cannot be guilty of an offence under this provision unless the person being aided, abetted, counselled, or procured commits an offence.
Section 11.6 of the Code makes it clear that s 11.2 is not an offence creating provision even though some of the sections in Division 11 do create offences in respect of Commonwealth offences found under the Code or in some other Federal statute. That section provides:
11.6 References in Acts to offences
(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3) Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth to:
(a) an offence against, under or created by the Crimes Act 1914; or
(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the first-mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first-mentioned law is impliedly to the contrary effect.
The point is that s 11.2 is not mentioned in the section and this is an acknowledgment by the drafter that the section does no more than extend criminal liability for an offence contained in the Code or some other statute. In case it was thought by the reader of s 11.6 that the drafter might simply have overlooked s 11.2, the note following s 11.6 states:
Note: Sections 11.2 (complicity and common purpose) and 11.3 (innocent agency) of this Code operate as extensions of principal offences and are therefore not referred to in this section.
The charge laid against the appellant in the indictment was in the following terms, my underlined as to which see later in this judgment:
On 21 May 2003 at Sydney in the State of New South Wales did procure the commission of an offence by David Israel Gurvich against s 233B(1)(b) of the Customs Act 1901, having imported into Australia prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied, namely, consisting of a quantity Heroin being not less than the traffickable quantity applicable to Heroin, contrary to subsection 11.2(1) of the Criminal Code 1995 (Cth) and paragraph 233B(1)(b) of the Customs Act 1901 (Cth).
The charge was not stating an offence of procuring the commission of an offence under s 233B(1)(b) but rather alleging an offence under the relevant paragraph of s 233B(1) and giving particulars of how the Crown said that the appellant had committed that offence.
As Adams J points out there was some agreement at the trial, at least between the parties, that the more appropriate provision of the Code was s 11.3. That section provides:
11.3 Innocent agency
A person who:
(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
As with s 11.2, this section does not create an offence but rather specifies a way in which an offence can be committed other than under s 3.2 of the Code. Section 11.3 is not mentioned in s 11.6 and again the note quoted above indicates that this was not merely an oversight.
In summary the situation at trial was as follows. The appellant was charged with an offence of importing narcotic goods under s 233B(1)(b). The charge alleged that he was guilty of the offence by relying upon extended liability under s 11.2 of the Code. During the course of the trial the parties accepted that the appropriate provision of the Code with regard to extended liability was s 11.3. In fact the appellant’s criminal responsibility as alleged by the evidence tendered by the Crown in its case was under s 3.2 of the Code and there was no need for reliance upon any of the provisions of Division 11. The trial was conducted on the basis that, before the jury could convict the appellant, they had to be satisfied that (a) he imported the drugs into Australia and (b) that he intended to import the drugs in the guitar case. There was no issue about (a) and the Crown tried to prove (b) by showing that the appellant had knowledge of the drugs in the case.
In my opinion the reliance in the charge on s 11.2 of the Code was a mere particular indicating the manner in which the Crown alleged that the appellant was guilty. Similarly any reliance upon s 11.3 during the course of the trial was also an attempt to particularise the manner in which the offence was committed. The Crown is entitled to depart from a particular contained in the charge alleging the manner in which an offence is committed where to do so would not occasion unfairness to the accused. There was no injustice in the present case.
In my view the allegation in the charge that the appellant had procured Gurvich in terms of s 11.2 was merely a particular and can be disregarded as mere surplusage so far as the statement of the charge is concerned. If the underlined part of the charge, as set out above, is ignored, there is a proper and sufficient statement of the offence alleged under s 233B(1)(b) of the Customs Act, the charge of which the appellant was convicted. In my opinion there was no requirement that the indictment be amended. The particular was surplusage to the statement of the charge. That being the case the indictment can be amended to remove it or it can be simply ignored where, as here, there was no risk of the appellant being prejudiced by a technical irregularity in the charge: R v McKinney and Judge (CCA, 6 September 1993, unreported); R v Smith and Kirton (1990) 47 A Crim R 43.
Reasonableness of the verdict
It was not a ground of appeal that there was no prima facie case, in that the jury were not able to logically and rationally infer the guilt of the appellant from the evidence led by the Crown in its case. Rather it was argued that, although the jury could have inferred the appellant’s guilt, they should not have done so beyond a reasonable doubt.
I agree with Adams J that the jury was in no better position than this Court to assess the evidence in the Crown case insofar as little of the evidence was in dispute and there was no issue of the reliability of any Crown witness. However, I doubt that, with respect to a circumstantial case depending exclusively upon the jury’s ability to assess the conduct of persons by applying their commonsense and experience of life, this Court and the jury stand in an equal position as finders of fact. This is because I am concerned that the Court should pay due deference to the combined experience and commonsense of the members of the jury in a case such as the present, which was one quintessentially for a determination by ordinary citizens in the community. However, I do not need to reach any firm view upon this point, or to determine whether such a consideration is inconsistent with the principles stated by the High Court for the resolution of this type of ground of appeal, because I do not have a doubt about the guilt of the appellant.
There was, in my view, an overly complicated presentation by the Crown of the circumstantial case upon which it relied. There is, with respect, much merit in the criticism by Mr Hulme SC, who appeared for the appellant, of some of the particular matters upon which the Crown sought to rely at the trial. They had little, if any, relevance to the jury’s consideration of the issue before them. For example, the Crown’s suggestion of the unlikelihood that a person of Sandford’s description would want a guitar is simply idle speculation likely to divert, rather than assist, the jury.
But in my view the evidence does not have to be examined in such minute detail as the Crown sought to do at the trial, or as Mr Hulme did on the appeal. The Crown case relied upon three sets of facts that can be considered broadly: the first involved the circumstances surrounding the bringing of the guitar case into Australia; the second involved the happenings in the luggage hall at the international terminal; the third was the finding of the heroin. In my opinion, when these sets of facts are considered together, the only reasonable inference arising is that the appellant had sufficient knowledge that the guitar case contained narcotics to justify his conviction of the offence charged.
I do not, with respect, believe that it is appropriate or necessary to examine all the events that surrounded the circumstances that led to the fact that Gurvich was placed in the position of being the person responsible for bringing the guitar case through Customs. I do not understand that this is how a circumstantial case should be considered. For example, whether or not the appellant and Gurvich had a conversation about the reason why anybody would want to bring a guitar into Australia from Vietnam or the contents of any such conversation was of little significance except as it revealed the state of knowledge of the appellant about the provenance of the guitar or why he was being asked to bring it into Australia from Vietnam. Similarly whether the guitar originated in Vietnam or elsewhere was of no real importance.
In my opinion it is the fact that the appellant was prepared to bring a package into Australia without any apparent attempt to determine its contents, provenance or why he was being requested to bring it with him that is significant so far as the first set of facts is concerned. I believe that this fact was clearly proved by the Crown and was the background against which the events at the airport had to be considered. The fact that the guitar case was delivered to the hotel shortly before the two men departed for the airport does not explain this apparent failure, but to the contrary is one of the facts that, in my view, indicate the suspicious nature of the importation. Nor do I see any significance in how the luggage of the appellant and Gurvich was checked in for the flight to Australia. The guitar case was always part of the appellant’s luggage and he was going to be responsible for it when it came time to enter through Customs in Australia.
In this regard I do not, with respect, accept Adams J’s reasoning as to the absence of evidence of the relationship between the appellant and Sandford in considering the circumstances in which the appellant came to bring the guitar case into Australia. This is because I do not believe that it is appropriate to deprive a piece of evidence of its potential value in proving the Crown’s case simply because its probative force may have been affected by some other fact that was not in evidence. The only evidence before the jury of the relationship between the appellant and Sandford was that they were associates of some kind and the appellant described him as a friend to the investigating officials. In my opinion it was open to the jury to draw an inference adverse to him about the appellant’s failure to investigate the provenance of the guitar case or its contents on the basis of that relationship. How good a friend he was and the circumstances of that friendship were unknown. In my opinion the fact that the appellant had apparently made little, or no, inquiry or investigation about the guitar case or its contents does not lose its probative value simply by speculating that Sandford may have been a true and trusted companion of the appellant when there was no evidence to suggest that he was.

During the course of argument Mr Hulme submitted that each of the factual matters relied upon by the Crown should not be viewed in the worst light for the appellant. But equally they should not be viewed in the best available light on the basis that there might be some reasonable explanation to account for each particular fact and so dismiss each as having no probative value. As I have already stressed, it is the total set of circumstances which are in evidence that are to be considered for the purpose of ascertaining whether any other reasonable explanation arose to account for them other than that the guilt of the accused had been established beyond reasonable doubt.
In addition to what I believe to be the highly suspicious circumstances in which the guitar came to be imported into Australia, I take into account, as I believe the jury would have been entitled to do, the improbability that a person would be trusted to convey a very significant amount of drug into Australia unless that person knew of the presence of the drugs. Almost half a kilogram of pure heroin was a highly valuable commodity and I believe it was unlikely in the extreme that its importation would be trusted to a scheme in which it was to be conveyed by a person who had no idea of its presence in the package being imported and no real incentive to comply with the request to bring the package into Australia if it proved inconvenient to do so, for example because of excess baggage costs.
The second and most significant area of facts was clearly what happened in the luggage hall at the airport. The two men had collected their respective baggage from the carousel and were about to move towards the custom’s checkpoint, each with their individual trolleys, when the appellant indicated that he wished to go to the toilet and asked Gurvich to collect the guitar and “to meet him”. He then left with his trolley rather than leaving it with Gurvich. It does not seem to me to be appropriate to stop at this point and see whether the request for Gurvich to retrieve the guitar case was a reasonable one because, for example, the baggage ticket was in the name of Gurvich. In any event there is no suggestion in the evidence that the name on the baggage ticket was a relevant fact at all in determining who should collect the guitar case. The item was clearly part of the appellant’s luggage and his responsibility however it came to be checked in at the airport in Vietnam and whoever collected it from the fragile luggage area. In any event, the request was made because the appellant said he wished to go to the toilet not because the baggage ticket was in Gurvich’s name.
Similarly I do not believe it is appropriate to consider whether the agreement “to meet” upon the guitar case being collected by Gurvich should be scrutinised to see whether there was the possibility that there was some ambiguity in the arrangement that may explain why the appellant did not wait for Gurvich in the luggage hall. The fact that the appellant was apparently proceeding through the Custom’s inspection without Gurvich or the guitar case, but with his own trolley that he had kept with him, was highly probative of the Crown case, and it does not lose its probative value by speculating about what reasons might account for that particular fact on the basis that the appellant had no knowledge of the drugs in the guitar case.
I believe it was well open to a jury to find the conduct of the appellant, a mature adult and not an inexperienced traveller, to be inconsistent with what would be expected of a reasonable person in his situation. The guitar case was clearly his responsibility: it was an item of his luggage and he was the person bringing it into the country. As I have already indicated, what happened in Vietnam at the baggage counter and how the luggage came to be checked in for the flight to Australia seems to me to be completely irrelevant. In any event I cannot accept the possibility that having gone to the toilet, the appellant merely forgot about Gurvich and the guitar case.
The simple fact is that the appellant left Gurvich in the position of having to bring the guitar case through customs. I believe that this was an intentional act on his part and I cannot see any innocent explanation for it. When that fact is added to the other established facts concerning the manner in which the case came into the appellant’s possession, his apparent failure to make inquiries or investigations as to its contents or provenance, and that it contained a substantial amount of narcotics, the Crown case was well and truly proved.
I have taken into account the conduct of the appellant after the drug was discovered but that does not change my view of the behaviour that preceded it. It was a fact that itself was equivocal but not of great significance in light of the strong inference arising from the other circumstances to which I have referred.
In my opinion the jury were entitled to find the appellant guilty and, for what it is worth, it is the verdict to which I would have come independently. The appeal against conviction should be dismissed.
There is a Crown appeal against sentence. Judge Puckeridge QC sentenced the appellant to imprisonment for 40 months (3 years and 4 months) with a non-parole period of 24 months (2 years). The maximum penalty for the offence was imprisonment for 25 years. The Crown asserts that the sentence ought to have been above the range of a head sentence following a plea of guilty, which would be 6 years to 7 years having regard to the amount of heroin involved. The trafficable quantity is 2 grams and there was 479.3 grams of pure heroin secreted in the guitar case. Mr Hulme SC realistically accepted that the sentence was below the range but submitted that the Court should not intervene.
There was some discussion before the Court as to the factual basis upon which the appellant was to be sentenced. Mr Hulme argued that the circumstances were unusual in that the appellant was charged as having procured Gurvich to import the drug and that act occurred at the airport terminal. It was, so the argument ran, at that point that the appellant’s criminality arose and he should not be sentenced on the basis that he imported the drug from Vietnam. With respect, I believe that this is an overly technical and highly unrealistic way of viewing the appellant’s criminality. Although he was convicted of an offence alleging that he procured Gurvich, as Adams J points out, that allegation was superfluous and factually erroneous. The appellant was guilty of importing the drug and the method by which he did so was of little consequence. I have no doubt that he was knowingly importing the drug from Vietnam when he took custody of the guitar case at the hotel. That was in substance the Crown case and it is in my view the only commonsense way of considering the evidence.
I understand that the Crown for some reason, which is not apparent to me, determined not to proceed on a charge of importation simpliciter, but rather chose to proceed on the charge set out in the indictment. It is consistent with the Crown’s confusion as to the way it was endeavouring to prove the charge. But in any event the appellant was to be sentenced on the basis that, he having imported drugs into Australia, attempted to use Gurvich to convey them through the Custom’s check so they could be made available for distribution.
The sentencing judge accepted that the amount of drug imported was substantial but noted that there was no evidence that the appellant was aware of the quantity of the drug. That is true, but I do not understand it to be a mitigating factor. Once the appellant was convicted of the offence and taken to have known of the presence of the drug, I do not believe he should be sentenced on the basis that he did not know the amount involved. At best the lack of evidence of knowledge of the actual amount being imported is a neutral factor, neither aggravating nor mitigating. But I do not see why it should not be assumed that a person who brings drugs into the country is aware of the amount involved, at least in a general sense, unless there is evidence to the contrary. However, that is not a point that needs further consideration to determine the present appeal.
His Honour also noted that there was no evidence that the appellant was to profit from the importation. Again, with respect, I do not understand the relevance of that statement. If his Honour was taking that fact into account as a mitigating factor then he was in error, because again at best it was neutral. Once more it is unnecessary in order to determine this appeal to embark upon a consideration of the relevance of whether the courier is to be rewarded or not as it affects his or her criminality. However, it seems to me as a matter of commonsense that it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.
His Honour referred to s 16A of the Crimes Act (Cth). He did not refer to s 16G, that section having been repealed by the time the appellant came to be sentenced. The relevance of the repeal of the section to sentencing for Commonwealth offenders has been considered in a number of recent decisions of this Court. It is clear that his Honour was to sentence the appellant without regard to the fact that the section had once been in existence, and to this extent his Honour’s failure to refer to the section was appropriate. However, it is also clear that the range of sentences that was appropriate when s 16G operated is no longer appropriate after its repeal. The repeal of the section must result in high sentences because the court has no longer the power to discount sentences to take into account remissions: R v Kevenaar [2004] NSWCCA 210.
I remain of the view that I expressed in Studenikin that there is no fixed mathematical equation for converting the range existing at the time that s 16G was in operation to a range applicable after the section was repealed. My agreement with the judgment of Hulme J in was not intended to suggest otherwise. I indicated in Studenikin my view that a consideration of statistical information, such as an existing range of sentence, was the last point of reference for a sentencing judge rather than the first. My opinion as to the proper approach to sentencing after the repeal of s 16G was set out in [71] of Studenikin and I have not changed that opinion. It accords with the view later taken by Smart AJ in R v Dujeu [2004] NSWCCA 237 and was followed in R v Mas Rivadavia [2004] NSWCCA 284.
The appellant was aged 57 years at the time of sentence. He has some record for dishonesty but those matters are of little significance, and apparently arose as a response to a gambling addiction. He has never served a gaol sentence. There was little in his background as set out in the pre-sentence report of relevance.
The sentence was manifestly inadequate to a very significant degree. The sentence should have been in the range of 8 to 10 years following a trial. By reason of double jeopardy I am prepared to propose a more lenient sentence that that which should have been imposed upon him.
I propose that the appeal against conviction be dismissed. The Crown’s appeal against sentence be allowed. The appellant should be sentenced to imprisonment for 7 years to date from 29 January 2004. There should be a non-parole period of 4 years.
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LAST UPDATED: 30/11/2004

[2004] NSWCCA 425

29 November 2004