R v Kardoulias - [2005] NSWCCA 150

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Kardoulias [2005] NSWCCA 150

FILE NUMBER(S):
60242/04

HEARING DATE(S): 16 July 2004

JUDGMENT DATE: 22/04/2005

PARTIES:
Regina v Spiros Kardoulias

JUDGMENT OF: Wood CJ at CL Adams J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0047

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
(A) P Boulten SC
(C - Cwth) G Bellew

SOLICITORS:
(A) Hardin Law
(C) Commonwealth DPP

CATCHWORDS:
Conspiracy to import prohibited drug (heroin) - Verdict was reasonable and amply supported by the evidence - open to a jury to be satisfied beyond reasonable doubt of the guilt of the accused.

LEGISLATION CITED:
Customs Act 1901

DECISION:
Appeal against conviction dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60242/04

WOOD CJ at CL
ADAMS J
SMART AJ

Friday, 22 April 2005

Regina v Spiros KARDOULIAS

JUDGMENT

WOOD CJ at CL: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed, and with the reasons of his Honour.
ADAMS J: I agree
SMART AJ: Spiros Kardoulias appeals against his conviction of a charge that between about 5 August 2001 and about 4 April 2002 at Sydney he conspired with Rafael Leonardo Andres, Raed El Akkaoui, Petros Kastellorizos, Rivadavia and others to import into Australia prohibited imports to which s 233B of the Customs Act 1901 applied, to wit, narcotic goods being not less than the trafficable quantity applicable to heroin. Kastellorizos and the appellant were tried together. The former was acquitted. It was his case that he was not a party to any agreement to import heroin into Australia, rather he was a messenger or an errand boy or a lackey for his cousin, the appellant. The appellant also seeks leave to appeal against the sentence imposed, namely 13 years 6 months with a non-parole period of 8 years 6 months, contending that it is too severe.
The Crown has appealed against the alleged inadequacy of the sentence imposed. Both sentence appeals were stood over to be determined at a later date.
There is one ground of appeal against conviction, namely, that the verdict of the jury was unreasonable, or cannot be supported, having regard to the evidence. It is contended that the jury, acting reasonably, ought to have entertained a reasonable doubt about the appellant's guilt because the evidence was incapable of convincing a reasonable jury that there was no reasonable hypothesis consistent with the appellant's innocence of the conspiracy charged against the appellant as particularised at the trial.
While the ground of appeal necessitates careful consideration of the whole of the evidence, a brief outline of the facts follows:
The importation which resulted from the conspiracy involved a parcel being shipped through FedEx (Federal Express), an international freight forwarding company. The parcel was lodged at FedEx's Hong Kong depot and included in its container which was transported by air from Hong Kong to Sydney. In the normal course the parcel (unopened) would be delivered to the Sydney depot of FedEx. However, in the present case the parcel was intercepted and found to contain heroin in two blocks, weighing 1395 grams. They contained 708.5 grams of pure heroin. The heroin was removed, an inert substance substituted, the parcel re-assembled and delivered to FedEx.
In late February 2002 two men, named Stefano and Andrew arranged to lease premises at 1395 Botany Road, Botany. The name of Comparts Solutions was subsequently used. On 7 March 2002 a package was delivered to the FedEx depot in Hong Kong addressed to Comparts Solutions, 1395 Botany Road, Botany. The shipper was shown as Buying Agent Trading Company with an address at Nathan Road, Kowloon, Hong Kong. The FedEx documents recorded the contents of the package as computer software valued at $US400. That package was accompanied by an airways bill. That package arrived in Australia on the morning of 8 March 2002. On the Crown case this package did not contain any prohibited substance but was consigned as a dummy run to ascertain whether it was possible to import a quantity of a prohibited drug intro Australia through the FedEx system.
On 11 March 2002 FedEx arranged for the package to be delivered to 1395 Botany Road, Botany where Umit Aksu, at the request of El Akkaoui, accepted it and after emptying its contents into his backpack took the contents to his home from which it was later collected by El Akkaoui.
During the morning of 4 April 2002, a package similarly addressed and purporting to be from the same sender and lodged on 3April 2002 with FedEx in Hong Kong arrived by air freight, and was intercepted by Australian Customs and the Australian Federal Police. The wholesale value of the heroin it contained was estimated to range from $308,000 to $520,000. After the heroin had been removed, the inert substance substituted and the package reassembled, it was made available to FedEx. Its subsequent delivery was facilitated by Andres and Rivadavia.
In the meantime El Akkaoui had alerted Aksu to be available to collect the package. About 5pm on 4 April 2002 El Akkaoui drove Aksu to the FedEx World Service Centre at Alexandria from which Aksu collected the package. The security camera system which should have recorded this was not working. After collecting the package Aksu returned to El Akkaoui, who was waiting nearby in a car, and gave the package to him. About 6.35pm he handed a backpack containing the substitute blocks to a man called Nitsas.
Andres, who started with FedEx in February 1997, held the position of Customs Manager throughout the period charged. His responsibilities extended to liaising with relevant government agencies including the Australian Customs Service, the Australian Quarantine Inspection Service and the Australian Federal Police and also to the selection, training and disciplining of the subordinate staff who attended to Customs requirements for the importation and exportation of shipments.
On 10 October 2001 Andres also became responsible for overseeing FedEx's security operations, including 24 security cameras and the associated recording equipment which was located in his office.
Rivadavia was also an employee of FedEx, starting there on 1 December 1997 and holding a number of positions. On 25 February 2002 he was appointed Associate Classifier. In that position he came under the direct supervision of Andres and was responsible for processing FedEx computer entries to Customs and for liaising with customers to ensure the prompt clearance of incoming shipments. He had been in daily contact with Andres during the period of the conspiracy, accepted calls from the appellant and had passed on messages between Andres and the appellant and others. Rivadavia played an active role in causing the delivery of the parcel (as reconstituted) to Aksu, whom El Akkaoui had arranged to collect the parcel from FedEx.
El Akkaoui was recruited by Andres and accepted into the conspiracy in August 2001. He acted as a liaison person between Andres and the appellant and Kastellorizos, who was retained by the appellant.
On 5 August 2001 the appellant, who had just returned to Australia from Greece, contacted Andres by telephone to arrange a meeting later that day. That meeting took place. Thereafter there were many conversations and meetings between Andres and the appellant. There were frequent conversations and meetings between Andres and El Akkaoui, Andres and Rivadavia, El Akkaoui and Rivadavia and El Akkaoui and Kastellorizos. The conversations continued from 5 August 2001 to 4 December 2001. There was a gap until 9 January 2002 when they resumed and continued until 22 January 2002. There a gap until 29 January 2002 when there were two conversations. There was a gap until 8 February 2002. From that date until April 2002 there were many conversations and some meetings.
The Legal Framework
The period of the alleged conspiracy to import extended from 5 August 2001 to 4 April 2002. The section under which the appellant was charged, namely. S 233B(1)(cb) of the Customs Act 1901 was abolished on 15 December 2001. On that date s 11.5 of the Commonwealth Criminal Code became operative. The offence of conspiracy to breach s 233B was abolished and a new statutory offence of conspiracy to breach the laws of the Commonwealth was enacted. The prosecution had to prove that the agreement constituting the appellant's involvement in the conspiracy came into existence and he became a party to it prior to 15 December 2001 and that that agreement continued after 15 December 2001.
The Crown contended that the primary issues on this appeal were whether the evidence adduced by the Crown was sufficient to establish that the conspiracy had been formed prior to 15 December 2001 and continued after that date. The appellant, while accepting that these were crucial matters which had to be proved beyond reasonable doubt would not accept them as the only primary issues. The appellant wished the whole of the evidence to be taken into account and contended that no reasonable jury could be satisfied that the only rational inference on the evidence was one consistent with guilt, that is, there were competing rational inferences (or explanations) consistent with innocence.
At the start of his summing-up the judge said:
"In most trials the jury has to determine the facts upon which it will base its verdict or verdicts from within a body of disputed and competing evidentiary material. In this trial [you] have to base your verdicts upon your interpretation of a body of undisputed and unchallenged evidentiary material. The evidentiary material presented by the Crown Prosecutor and by Mr Kardoulias' counsel … is undisputed and unchallenged. You can accept that evidentiary material and you can act upon it without reservation or qualification.
Your task … is to interpret the evidentiary material."
The evidence consisted of intercepts of telephone calls, conversations or comments recorded by listening devices and surveillance evidence. The judge further explained:
"When I say … that the evidence is undisputed and unchallenged, what I mean is that the various facts such as the telephone calls, who telephoned whom, on what telephone service the call was made and to what telephone service the call was made, and the meetings, where they were held, when they were held and who attended them, and the packages, when they were sent and from where they were sent and what was contained in the two of them that were intercepted, are unchallenged and not in dispute."
The Surrounding Circumstances
The Crown relied not only on the terms of the various conversations but what was not said and to the circumstances of the telephone calls. The Crown pointed to a number of mobile telephone services used by the appellant and others involved in the conspiracy.

Service number	Subscriber
0410 302 323	Raed El Akkaoui ("El Akkaoui's phone")
0414 404 112	Ruben Mas Rivadavia ("Mas Rivadavia's phone.
0419 419 613	John Poulos ("the Poulos phone")
0419 215 867	Robert Paton ("the Paton phone")
0419 243 998	Bill Eulos ("the Eulos phone")
0419 245 288	John Sarkarkis
0421 931 414	An unregistered pre-paid mobile service used by the appellant from about 9 February 2002 until at least 11 March 2002 ("the pre-paid mobile")
0418 222 240	Spiros Kardoulias
0418 020 063	Petros Kastellorizos
0405 483 090	Umit Asksu

Some of these services were intercepted during the course of the conspiracy.

Except for the two occasions on which he spoke to El Akkaoui by telephone the appellant only had telephone contact with Andres and Rivadavia. There was no evidence of any telephone contact between the appellant and Rafael Cesan (an associate of Andres and Mas Rivadavia). On the occasions on which he contacted Andres the appellant either used a public telephone or used the Poulos phone.
On some of those occasions upon which the appellant used a public telephone, the call charge records for the mobile service in his name showed that he had access to that mobile telephone at the time of making the public telephone calls. The Crown relied upon the appellant's practice of using a public telephone, pointing out that it first occurred on 5 August 2001.
The Poulos phone was used by the appellant during 2001 and the call charge records for that service established that the only calls made from it were calls to the Paton phone which was being used by Andres. At no time during the period of the alleged conspiracy did the appellant use the mobile telephone which was leased in his own name to contact Andres. Similarly, with limited exceptions Andres did not use the telephone leased in his own name to contact the appellant. Andres used the Paton phone for that purpose.
When the appellant contacted Rivadavia by telephone the appellant used a public telephone. Andres, El Akkaoui and Rivadavia, however, always spoke to each other on their respective phones or on landlines connected either to their homes or their places of work.
It was the Crown case that the appellant took steps to distance himself from what was occurring. It also pointed to the elliptical nature of many of the telephone calls and their lack of substantial content. The conversations to which the appellant was a party were almost invariably short. The Crown pointed out that in his conversations with Mas Rivadavia, the appellant's contribution to the conversation was generally restricted to asking Rivadavia to have Andres contact him. The Crown further pointed out that upon the subsequent contact with Andres, the conversation was generally in an abbreviated and partly coded form and restricted to making arrangements (in code) for a meeting. Too much should not be made of this as the appellant and Andres appeared to have a number of preferred meeting places which were well known to each of them in the Rockdale-Sans Souci-Ramsgate and nearby areas. Andres lived at the nearby Dolls Point and the appellant at Sans Souci.
Throughout the conversations between Andres, El Akkaoui and Rivadavia there are references to "the Greek", "Greko", "Greek salad", "Greekinsky" and other derivations of the word "Greek". These were references to the appellant.
The Crown also pointed out that the meetings which the appellant attended, principally with Andres, took place both before and after 15 December 2001. Irrespective of where they were held those meetings usually had these common characteristics:

(a)they generally took place in areas and in circumstances where it was unlikely that any conversations would be overheard. Parks, beaches, promenades and street benches were often selected. Sometimes they met in the courtyards of eating establishments or the establishments
(b)the meetings were generally for short periods and often for only a matter of minutes
(c)the locations at which they took place were a short distance from the residential premises of Andres and those of the appellant.
(d)Often they took place at night.

The judge explained to the jury (SU23-24) that the essential elements of the charge to be proved by the Crown were:
(1)An agreement was made to import a quantity of heroin greater than 2 grams into Australia
(2)The agreement was made before 15 December 2001
(3)The agreement continued after 15 December 2001
(4)The accused, each considered separately and distinctly from the other, was a party to the agreement
(5)The accused , each considered separately and distinctly, intended to carry out the objective of the agreement.
The judge explained to the jury at length what constituted a conspiracy. Amongst other things he told the jury (SU29):
"A criminal conspiracy is formed when two or more people agree to perform an unlawful act and intend to carry out that agreement through to its conclusion."
The judge summarised the Crown case thus (SU36-37):
"Some time after 4 August 2001, that date being the date of Mr Kardoulias' return from Greece to Australia, Mr Kardoulias made an agreement with at least Andres to import a quantity of heroin greater than two grams into Australia. The other parties to the agreement were at least El Akkaoui and Mas Rivadavia. Some time after 22 August 2001, that date being the date of Mr Kastellorizos' return from Greece to Australia, Mr Kardoulias brought Mr Kastellorizos into the agreement. The agreement continued to the arrival of the quantity of heroin in Australia on 4 April 2002. The Crown relies upon what was said and done by both Mr Kardoulias and Mr Kastellorizos to show the existence of the agreement and their participation in it. The Crown relies upon the arrival of the quantity of heroin in Australia on 4 April 2002 to show the objective of the agreement".
The judge pointed out that nowhere in any of the intercepted conversations was any particular drug mentioned or any word common in the drug scene used to describe what drug was to arrive from Hong Kong. The judge commented that he was sure that this did not come as a surprise to the jury (SU37).
The judge pointed out that the Crown's interpretation of the intercepted conversations flowed from what happened, that is, from the arrival of the heroin on 4 April 2002. This enabled the Crown to say that the object of the conspiracy was the importation of greater than 2 grams of heroin. The judge explained that the Crown was asking the jury to work backwards and that there was nothing wrong with this.
The judge later dwelt upon the dangers of working backwards (or ex post facto rationalisation). At SU63-65 the judge said:
"I said to you yesterday that the Crown relies upon ex post facto rationalisation that the conspiracy involving Andres, El Akkaoui and Mas Rivadavia and, the Crown alleges, the two accused, was to import a quantity of heroin into Australia, because the Crown could not show, until the arrival of the heroin, that heroin was the objective of the conspiracy. I told you yesterday that nowhere within any of the recorded conversations, those intercepted by the Australian Federal Police, was any specific drug referred to, whether by its usual name, whether it be heroin, amphetamine, ecstasy, which a (sic) type of amphetamine, cocaine, or by any pseudonym used within the drug scene for those drugs. I said to you that the Crown did not know from the intercepted conversations and from its following of the people what drug they were talking about. When heroin arrived on 4 April 2002, the Crown used it, by ex post facto rationalisation, by working backwards from the arrival through what happened, to show that the objective of the conspiracy was the importation of heroin. I said yesterday that there was nothing wrong with ex post facto rationalisation, with working backwards from the result to interpret the objective and I said that no one had suggested that there was something wrong with it. I have been reminded, and members of the jury, I remind you that Mr Boulten criticised the Crown's approach. In his submissions to you he pointed out that there were dangers in the use of ex post facto rationalisation. Well, members of the jury, I tell you that you should be very careful before you reach the conclusion urged upon you by the Crown by using ex post facto rationalisation. As I said to you in relation to drawing of an inference, you must be careful to ensure that the inference is a justified one and that it is the only reasonable and rational inference to draw from the facts. Ex post facto rationalisation is nothing more than, as I have said, working backwards.. It is drawing an inference from a result. You must be very careful with drawing inferences. Inferences must be justified and they must be the only reasonable and rational inference to draw There are dangers in ex post facto rationalisation, particularly, you might think, members of the jury, where, as in this trial, the central players – if I may use that term to describe them – Andres, El Akkaoui and Mas Rivadavia are involved in discussions with other people about, you might think, the possible importation of drugs into Australia.
As you need to be satisfied beyond reasonable doubt of the guilt of the accused, you need to be satisfied beyond reasonable doubt that the only reasonable and rational explanation for the accused's conduct was that they were parties to a conspiracy, that is the agreement with the intention of carrying out the objective to import heroin. You must examine the evidence carefully in light of the other evidence demonstrating that other matters were being discussed, particularly by the central players, Andres, El Akkaoui and Mas Rivadavia. Other things were happening at the same time, and you know that other things were happening, because, as you have been told and I remind you, three packages were sent from Antwerp in Belgium, one on 14 February, one on 19 February and the last on 25 February, two packages were sent from Hong Kong, the first on 7 March and the other on 3 April, and three packages were sent from Germany one on 25 March, one on 28 March and the last on 4 April."

The judge had earlier said (SU62):
"I said yesterday that the evidence of other possible conspiracies to import drugs other than heroin, such as ecstasy or cocaine, was led to show that many things were happening regarding particularly Andres, El Akkaoui and Mas Rivadavia. I point out that that evidence is of importance in your consideration of whether or not the Crown has proved beyond reasonable doubt that the accused were parties to a conspiracy to import heroin rather than parties to import some other drug."
I have set out these passages because it was the appellant's case that as Andres, Rivadavia and El Akkaoui were engaged in a number of concurrent drug importations (other than heroin) the jury could not be satisfied that the intercept and listening device material referred to the importation of heroin.
The judge summarised the appellant's case in his summing-up. The appellant contended that he was not a party to any agreement to import the heroin which arrived in Australia on 4 April 2002 and that the Crown's analysis of the material ignored the following reasonable possibilities:
(1)he was interested in the scams carried out by Andres and Rivadavia ("the FedEx Boys")
(2)he was interested in the possibility of importing a quantity of heroin without making any agreement to import any heroin
(3)he was interested in importing something whether heroin, cocaine, ecstasy or something else, without making any agreement to import anything
(4)he knew that Andres and the others were importing a quantity of heroin from Hong Kong and was interested in buying that heroin from time to time in order to distribute it.

The judge set out the submissions of the appellant's counsel as to the evidence supporting the suggested possibilities (SU68-69). Given the evidence as to the appellant's interest, remarks and activities over the eight month period covered by the charge and taking them altogether, each of the suggested possibilities was far fetched and each was unlikely to appear as a reasonable possibility to any reasonable jury.
The judge (SU70) reminded the jury that the appellant's counsel contended that the appellant did not -
(a)   have any contact with FedEx
(b)   have any contact with anyone in Hong Kong
(c)   dispatch anything from Hong Kong
(d)   import anything from Hong Kong
(e)   pick up anything from FedEx
(f)    have any connection with anyone who picked up anything from FedEx
(g)   have any connection with Comparts Solutions
(h)   have any connection with renting 1395 Botany Road, Botany.
The judge confirmed that the appellant did not do any of those things and that the issue was whether he was a party to an agreement to import a quantity of heroin into Australia greater than 2 grams as a result of which those things were done. The judge stated that the nub of each accused's case (the appellant and Kastellorizos) was that analysis of the undisputed and unchallenged evidence would not lead to the conclusion that the accused (either of them) was a party to such an agreement..

Other Importations and Conspiracies By the FedEx Boys and Others

The appellant contended that one of the principal problems that the prosecution had in proving the conspiracy charged was that Andres and Rivadavia (at least) were proved to have been involved in a number of schemes with various people that involved the importation of different types of drugs into Australia using the FedEx parcel system. Andres and Rivadavia were also charged with the offence of between 14 February and 24 April 2002 conspiring to import a trafficable quantity of ecstasy. This conspiracy occurred contemporaneously with the one charged against the appellant and also involved the use of parcels sent through the FedEx system. Their friend Rafael Cesan as a co-conspirator was similarly charged. Cesan, Andres and Rivadavia were very often and regularly in contact with each other during the period August 2001-April 2002. So too was El Akkaoui. Cesan, Andres and Rivadavia were involved in the South American salsa music scene and belonged to a band known as "Ila Familia". Recordings of telephone conversations between those four men revealed occasions where they discussed illegal drug use.
About 31 May 1999 Cesan, who had access to the Bond Store at FedEx, removed a parcel containing a quantity of heroin and headed towards the toilet and was confronted by his supervisor. Cesan, who had no satisfactory explanation, was dismissed. About three days later another parcel arrived addressed to the same consignee.
Federal Agent (FA) McClure, the case officer, agreed that when the police investigated the involvement of Andres, Rivadavia and Cesan with the importation of ecstasy it became apparent that they were all involved in the importation of at least one parcel which contained ecstasy. Further, the police in Germany seized a parcel addressed to a Sydney destination that was going to be sent through the FedEx system. That parcel contained 1.4 kgs of ecstasy and was seized in Germany on 8 April 2002. The parcel also contained a number of computer boxes and some other computer-related paraphernalia. The packaging was similar to that of both parcels which arrived in Sydney on 11 March 2002. FA McClure did not agree that the packaging used on the parcel in Germany and that used on the parcel which arrived on 4 April 2002 was similar. The only common feature was that each contained computer boxes.
FA McClure agreed that many of the conversations the police used as the basis to lay charges against Cesan, Rivadavia and Andres for their alleged involvement in a conspiracy to import ecstasy were also recorded by the police using the same warrants as those used to record the conversations tendered in the present trial.
The conversations recorded related to non-criminal subjects, those believed by the police to relate to the importation of heroin, those believed by the police to relate to the importation of ecstasy and those believed by the police to relate to the importation of other drugs. Some of the recorded conversations between Rivadavia, El Akkaoui and Cesan appeared to relate to the supply of drugs locally for use in their social network. It was difficult to say whether any of the recorded conversations related to cocaine. Many parts of the recorded conversations related to their musical activities and some related to their ladies and associated activities.
FA McClure said that the police suspected that Andres' brother, Fernando Andres, during the period December 2001-April 2002 was involved in attempting to organise an importation of drugs from Colombia through Australia Post. While they did not know which drugs were to be imported they suspected cocaine. The police suspicions were based on the contents of recorded conversations. They picked up this information from conversations tendered in this trial and other intercepts under other warrants..
In a recorded conversation on 9 January 2002 by a listening device Andres expressed the view "my brother's thing is not going to come off." It seems that Andres and El Akkaoui were in a car at Parramatta and that a man who had been expected had not attended. Andres telephoned Catalina Mas, the sister of Ruben Mas Rivadavia. He spoke to her and a little later possibly to Ruben. Andres is recorded as saying, "Yeah, she actually wrote it's arrived". FA McClure did not know what they were talking about. Rivadavia's work position at FedEx enabled him to tell when parcels had arrived.
After the telephone call concluded there is a reference to Andres remarking to El Akkaoui, "Getting left out, going to have to move it". FA McClure did not know what it meant. Andres observed that while Ruben was good he (Andres) had to do all the running around. At FedEx Andres did not have to do all the running around.
FA McClure agreed that the further recorded statements of Andres lead to the inference that he had ten people to meet, they were prospects and one of them would come off.
Andres is recorded as saying to El Akkaoui "… but a least you put your hook and sinker out there and say I don't put it to everyone. I know who to talk to," "Greek Guy something's gonna happen for sure I mean … won't have a problem," "then if we have to … they'll go" and "first of all we don't have the money second of all … you know what I mean."
In evidence FA McClure added, "If you are asking for my opinion, in this sentence, the Greek guy going to happen for sure … that is clearly a reference to his dealings with Mr Kardoulias and their illicit drug dealing". Andres and El Akkaoui appear to be talking about the future with the appellant being one of ten prospects.
A little later in the conversation Andres stated "I gotta meet the Greek guy …" El Akkaoui remarked, "If we get this guy and the Greek guy or at least one of them or all of them … every hassle will become easy when you got … fifty grand." The reference to the "Greek guy" was to the appellant.
FA McClure agreed that in their conversation in Andres' car on 9 January 2002 Andres and El Akkaoui were discussing the possibility of three deals. El Akkaoui remarked "If you get these three guys you know more than I do you'll have more than 50 grand, you'll have 200 grand." Andres said to El Akkaoui, "Ruben doesn't know all this, but when I met Illhan, see what happened with me was I had … South American friend … had an idea, he goes why don't we use …" There is some further talk about that topic. The conversation is hard to follow.
Andres is recorded as saying, "If you talk to him [Illhan Goktas] I'll give you a cut. You hook me up with one, if you deal with him I'll give you a cut of the money … a hundred grand."
Andres proceeded to talk about the losses he suffered after his divorce, that Illhan involved him "in a lot of his stuff", owed him money and had lost "seventeen grand."
During the police investigation it came to their attention that Fernando Andres and Illhan Goktas owed a joint debt of $2000 to Russell Cole who was threatening to kneecap them.
There were other intercepted conversations which indicated that Illhan was seeking assistance from Andres as to the money owed to Cole. Fernando Andres and Illhan wanted Andres to come up with a scheme (an illegal one) where money could be paid to Cole.
Andres said, "And you know there was … other people involved that I had … run ins with … everybody … I lost … big time." Such a loss apparently involved 800 grams, a hundred thousand dollars worth of "stuff". It was regarded as a rip-off. This was followed by a conversation between Andres and El Akkaoui as to the profits to be made from the future importation of an illicit drug. There was then a discussion about those participating in the venture putting up some money and working a lot harder to ensure that the importation was successful. The investors will trust them (those organising and effecting the importation a lot more). Later in the conversation (p560) the words used suggest a previous successful illegal operation with Andres giving half the nett proceeds to Rivadavia and showing him too much money. There is some discussion about loose talk by Rivadavia and his spending money at the casino.
Later during the conversation of 9 January 2002 (p561 of Ex G) Andres stated "When we bring the stuff in before … the cops were everywhere." The discussion about Rivadavia continued and it seems that he was only to be told on a need to know basis.
Andres and Akkaoui agreed that there were no worries with the "Greek guy". There was then some reference to other men who were involved or going to be involved.
FA McClure said that during the period the subject of the charge Fernando Andres and Illhan, Russell Cole and Arnie Bolat, were seen by police to be in regular contact. They were suspected of being on the fringe of the law.
Andres stated (p565) that he did not want to get involved with the actual importation. The conversation between Andres and El Akkaoui indicated how completely involved they were in the drug trade.
The listening device tapes suggest that both Andres and El Akkaoui got out of Andres car and returned to it a short time later. In their conversation upon their return Andres remarked, "…we've gotta concentrate on the Greek Guy" and "I think he's got a new place." El Akkaoui speaks of meeting up with Bob (probably Kastellorizos). Andres states, "still do everything else he says." Andres states, "He reckons the guys he's got we don't know 'em." FA McClure thought that "he" meant the appellant.
FA McClure agreed that the transcript of 9 January 2002 revealed the events of one night and that it was possible to conclude from the conversation that there were references to numerous illicit deals and past concluded illicit enterprises.

Direct Involvement of Appellant with Alleged Co-Conspirators

The judge prepared for the jury a valuable chronology extending over the period 18 July 2001-24 April 2002 and covering some 50 pages listing the many telephone calls and meetings between the alleged conspirators and between them and Kastellorizos. Set out below is an extract of the direct involvement of the appellant.

5.10pm	5 Aug 01	Appellant (using a public telephone in Rockdale) telephoned Andres
8.44pm	Appellant (using a public telephone in Ramsgate) telephoned Andres – meeting at Big John's Sans Souci arranged
9.07pm 9.46pm	Appellant variously meets Andres, Rivadavia and El Akkaoui, also talks with Andres singly
5.45pm	7 Aug 01	Appellant leaves his home at 17 Harris Street, Sans Souci and drives to Rockdale Plaza
6.00pm	Using public telephone there, Appellant telephoned Andres
6.09pm	Appellant uses mobile telephone to telephone someone and then drives home, arriving at 7.02pm
7.27 -7.40pm	Leaves home, goes to Coles, Supermarket, telephones someone from public telephone, leaves Coles with white shopping bag and returns to his car
7.41pm	Appellant leaves his car and walks to Surf Club
7.52pm	Andres parks his car in Surf Club carpark.. Appellant walks to Alfred Street followed by Andres
7.55pm	Appellant and Andres meet at Wagon Wheels Pizza and talk together for 3 minutes, leave, go to their cars and drive off
7.20pm	20 Aug 01	Appellant (using public telephone in Banksia) telephoned Andres
7.04pm	24 Aug 01	Andres telephoned Appellant (using Poulos service)
2.18pm	5 Sep 01	Appellant drove vehicle from 142 Stanmore Road, Stanmore to Mobile Connections, Arncliffe
2.35pm	Appellant left shop, drove to Rockdale and then back to Mobile Connections
2.49pm	Appellant left Mobile Connections shop with white plastic bag
4.45pm 7.17pm	6 Sep 01	El Akkaoui telephoned Appellant Andres telephoned Appellant (Poulos service)
5.13pm	7 Sep 01	Appellant (Poulos service) telephoned Andres (using Paton Service)
11.28am (2 calls)	8 Sep 01	Appellant telephoned Andres (Paton service)
1.36pm	Andres (Paton service) telephoned appellant (Poulos service)
3.03pm	Appellant (Poulos service) telephoned Andres (Paton service)
3.11pm	Andres met Appellant at/near a "car wash"
5.12pm	17 Sep 01	Andres (Paton Service) telephoned Appellant (Poulos service)
6.08pm	18 Sep 01	Andres (Paton service) telephoned Appellant (Poulos service)
6.33pm	Appellant parked in McDonald's car park at Sans Souci and walked to Northcote Reserve (arriving about 6.50pm)
6.33pm	Andres drove along Rocky Point Sans Souci
6.50pm	Andres left vehicle parked on the Promenade and walked to the Appellant
About 7.00pm	Andres and Appellant left Reserve
7.55pm	Appellant joined at Big John's by Kastellorizos and Romeo
8.00pm	These three men left and drove off in Appellant's car
8.01pm	Kastellorizos and Romeo left car at corner of Rocky Point Road and Bonney Street, Sans Souci
8.55pm	Appellant, Kastellorizos and Romeo walked along Rocky Point to Ray White Real Estate Agency – Appellant wrote something on a piece of paper
8.59pm	Appellant left by car with Romeo
5.51pm	20 Sep 01	Andres (Paton service) telephoned Appellant (Poulos service)
1.13pm	23 Sep 01	Andres telephoned Appellant (Poulos service)
3.07pm	Appellant telephoned Andres (Paton service)
7.56pm	Andres (Paton service) telephoned Appellant (Poulos service)
8.58am	4 Oct 01	Andres (Paton service) telephoned Appellant (Poulos service)
4.22pm	Andres (Paton service) telephoned Appellant (Poulos service)
5.21pm 5.27pm	Andres and Appellant in or near Alfred Street, Ramsgate
9.15pm	6 Oct 01	Andres telephoned Appellant (Poulos service)
3.09pm	7 Oct 01	Appellant (Poulos service) telephoned Andres (Paton service)
5.28pm	8 Oct 01	Andres (Paton service) telephoned Appellant (Serkakis service)
6.41pm	8 Oct 01	Appellant (Poulos service) telephoned Andres (Paton service)
7.20pm	Appellant (Poulos service) telephoned Andres (Paton service)
7.57pm to about 8.00pm	Appellant met Andres at Northcote Reserve, also conversation in car
8.24pm	15 Oct 01	Andres (Paton service) telephoned Appellant (Poulos service)
6.51pm & 7.37pm (2 calls)	16 Oct 01	Andres (Paton service) telephoned Appellant (Poulos service)
7.59 –8.00pm	Andres and Appellant meet at Northcote Reserve. About 8.15pm each leaves separately
7.53pm	17 Oct 01	Andres (Paton service) telephoned Appellant (Poulos service)
7.44pm	26 Oct 01	Appellant (using public telephone in Tempe) telephoned Rivadavia
10.46am	27 Oct 01	Andres (Paton service) telephoned Appellant (Poulos service)
2.20pm	29 Oct 01	Andres (Paton service) telephoned Appellant (Poulos service)
7.13pm	Appellant (Poulos service) telephoned Andres (Paton service)
8.04pm	Appellant (Poulos service) telephoned Andres (Paton service)
8.16pm	Andres (Paton service) telephoned appellant (Poulos service)
8.17pm	Appellant (Poulos service) telephoned Andres (Paton service)
8.58pm to 9.01pm	Andres met appellant near Dolls Point Baths
8.09pm	13 Nov 01	Appellant (using public telephone in Brighton le Sands) telephoned Rivadavia
8.43pm	Andres (using public telephone in Hoxton Park) telephoned Appellant (Poulos service)
1.10pm	17 Nov 01	Andres (Paton service) telephoned Appellant (Poulos service)
1.30pm to 1.35pm	Andres and appellant together near Big John's
6.25pm	20 Nov 01	Andres (Paton service) telephoned Appellant (Poulos service)
8.07pm	Appellant (Poulos service) telephoned Andres (Paton service)
2.40pm	22 Nov 01	Andres (Paton service) telephoned appellant (Paton service)
3.16pm	Appellant (Poulos service) telephoned Andres (Paton service)
10.21pm	Andres (Paton service) telephoned Appellant (Poulos service)
10.44pm	Appellant (Poulos service) telephoned Andres (Paton service)
10.18am	24 Nov 01	Andres (Paton service) telephoned Appellant (Poulos service)
12.10pm	25 Nov 01	Andres (Paton service) telephoned Appellant (Poulos service)
6.58pm	Appellant telephoned Rivadavia
12.40pm	26 Nov 01	Andres (Paton service) telephoned appellant (Poulos service)
9.06pm	22 Jan 02	Andres (using public telephone in Sandringham) telephoned the appellant pre-paid service, subscriber not registered (pps s n r)
9.21 to 9.35pm	Andres and Appellant talked together in Andres' car at Sans Souci. Then Andres with the Appellant as passenger drove to Ramsgate Shopping Centre.
8.08pm	9 Feb 02	Appellant (using public telephone in Kogarah) telephoned Rivadavia.
9.33pm	Andres (using public telephone in Sandringham) telephoned appellant (pps s n r)
7.25pm	12 Feb 02	Appellant (using public telephone in Ramsgate) telephoned Rivadavia.
9.06pm	Rivadavia (using public telephone) telephoned Appellant.
11.39am	16 Feb 02	Andres (using public telephone in Dolls Point) telephoned Appellant (pps s n r)
8.53pm	24 Feb 02	Appellant (using public telephone in Sandringham) telephoned El Akkaoui.
6.19pm	25 Feb 02	Appellant (using public telephone in Ramsgate) telephoned Rivadavia.
8.09pm	26 Feb 02	Andres telephoned appellant (pps s n r)
9.30pm	27 Feb 02	Appellant (using public telephone in Kogarah) telephoned Rivadavia.
10.25pm	Andres (using public telephone in Sandringham) telephoned appellant (pps s n r)
8.13pm	28 Feb 02	Andres(using telephone at FedEx) telephoned Appellant (pps s n r)
8.34pm to 8.45pm	Andres met Appellant in street at Dolls Point and then drove, with Appellant as passenger, to Malua Street, Dolls Point and then to Alice Street, near Grand Parade, when Appellant left Andres' car and went to his car.
12.45pm	2 Mar 02	Andres (using public telephone in Sandringham) telephoned the appellant (pps s n r)
7.07pm	6 Mar 02	Appellant (using public telephone in Brighton le Sands) telephoned Rivadavia.
11.29 pm & 11.32pm (2 calls)	Andres (using a third public telephone in Brighton le Sands) telephoned appellant (pps, s n r)
3.22pm	10 Mar 02	Andres (using telephone registered in his name) telephoned the Appellant (pps, s n r)
8.04pm	11 Mar 02	Someone using a telephone at FedEx telephoned Appellant (pps, s n r)
8.08pm	Andres telephoned the Appellant
9.06pm	Appellant (using public telephone in Dixon Street, Sydney telephoned Rivadavia.
10.02pm	Andres (using public telephone in Monterey) telephoned the appellant (pps, s n r)
10.18pm to 10.40pm	Appellant phoned Andres in his car at Dolls Point and then went for a walk. They met, after which both drove away separately
2.38pm	16 Mar 02	Appellant (using public telephone in Sandringham) telephoned Rivadavia.
8.30pm 10.11pm to 10.19pm	29 Mar 02	Appellant (using public telephone at Monterey) telephoned Rivadavia. Appellant and Rivadavia met and walked along various streets in Sans Souci during which time the appellant telephoned El Akkaoui.
12.09pm	30 Mar 02	The appellant drove to Sans Souci
12.11pm	The Appellant (carrying a white plastic bag) entered McDonald's and joined Andres.
12.12pm	The appellant (without the white plastic bag) left McDonald's and walked away. Andres (with the white plastic bag) sat at a table inside McDonald's.
12.16pm	The appellant re-entered McDonald's and joined Andres at the table.
12.21pm	The Appellant picked up the white plastic bag and both he and Andres looked inside it and after appearing to give something to Andres, the Appellant dropped the bag on the floor. At 12.24pm they both left McDonald's and went their separate ways.

These comments should be made:

(a)The appellant was in frequent contact with Andres throughout the period from 5 August 2001 to 30 March 2002.
(b)The appellant and Andres were acquaintances rather than friends. When they met, they spent very little time in each other's company and their telephone discussions pointed to commercial arrangements not social engagements or social contacts.
(c)The sustained use of public telephone and mobile telephone services in the names of others and the use in some conversations of an obvious code pointed to conduct which the parties to the conversations did not want discovered because it was criminal in nature. Special efforts were made to use public telephones.
(d)Many of the telephone calls and meetings took place at times and places which were unusual for legitimate business dealings and interests. There was an obvious attempt to disguise what was happening.
(e)In addition to the appellant being in contact frequently with Andres, the appellant was also in contact with Rivadavia (often) and El Akkaoui (twice), close associates of Andres.
Andres appeared to be the principal organiser of events.

(f)Some of the telephone calls were made for the purpose of arranging a meeting between the appellant and Andres or for the purpose of having Andres contact the appellant.
(g)After Kastellorizos returned to Sydney on 22 August 2001 he was appointed by the appellant to attend to a lot of the routine arrangements and to act as a liaison officer. Despite this there was ongoing and frequent contact between Andres and the appellant and also between Andres' associates and the appellant.
(h)The evidentiary materials establish beyond reasonable doubt that the appellant, Andres, El Akkaoui, Rivadavia were acting in concert in importing and dealing in drugs.

At times there appeared to be a flurry of activity involving the appellant, for example, on 18 September 2001, 29 October 2001, 6 March 2002, 11 March 2002 and 29/30 March 2002.

The judge correctly admitted in the Crown case against the appellant evidence of conversations and actions of the alleged co-conspirators. These provided strong support for the Crown case against the appellant. While the appellant endeavoured to keep in the background and leave the ground work to others, he was a principal, if not the Principal. Andres was the senior executive of the enterprise.

Some Conversations and Meetings August 01-April 02.

FA McClure stated that on the evening of 5 August 2001, following some earlier telephone calls the appellant, Andres and Rivadavia met at Big John's (an eating establishment at Sans Souci). Later in the evening El Akkaoui joined them. On the evening of 7 August 2001 the appellant and Andres met and conversed at Wagon Wheel Pizzeria for about 3 minutes.
FA McClure also stated that on 21 August 2001 about 7.25pm Rivadavia, Cesan and Andres were together at a restaurant in Kensington.
On 20 August 2001 at 1920 the appellant telephoned Andres and they arranged a meeting at 2015 at "my way water". At 2000 hours Andres telephoned El Akkaoui and said that he had to see that "girlfriend of mine" and "don't say, uh, if they ask you who my Mrs is." El Akkaoui told Andres, "go and see your Mrs, do some ground work there about what's happening … we'll go from there …".
Such a meeting was held. On 21 August 2001 Andres told El Akkaoui that he (Andres) had gone and spoken to the appellant on the previous night and added, "No worries mate, full on full on." The call became disconnected. Upon resumption Andres continued, "no problem … you're in" and "She (the appellant) likes you" and "She said no worries and uh I've gotta see him on Friday." Andres said, "See him on Friday and then 'um but I'll let you know what we need to do … we need to organise quite a few things." El Akkaoui expressed his strong support. Andres stated, "Reuben's gunna come along too" and "we're there already." It was obvious that the conspiracy had been formed but that some of the details and operations needed to be "fleshed out".
During a conversation at 2345 hours on 26 August 2001 Andres said to El Akkaoui "… I'm going to concentrate uh in the next few days with uh Greek Salad" and "we're off and running." After expressing his dissatisfaction with Rivadavia and a derogatory comment about a lady Andres said, "Listen, I'm gunna concentrate on this uh thing we're gunna concentrate on that because I want us … to buy an apartment and do something."
On 27 August 2001 at 1824 hours El Akkaoui was telephoned by Andres who said, "… I'm gunna have some Greek Salad … in about half an hour. That's where I'm going now and then um you know I'll know a lot more." There were several references to "a girl". Andres complained that the appellant had this other girl he wants me to meet. FA McClure said that on occasions the word "girl" was code and meant "a parcel" and the words "other girl" meant another man (Kastellorizos). This suggested that the appellant was the directing source.
On 27 August 2001 at 2154 hours El Akkaoui telephoned Andres who said "We (sic) Wednesday night … we're gunna meet up and go and have some f----- salad …". Andres insisted "It's all f----- happening big time son." Andres remarked "Yeah, you and I are gunna go off son". Andres stated that Rivadavia was going to have to get a bit of a pay cut. FA McClure had no knowledge of FedEx imposing a pay cut.
On 29 August 2001 in the evening El Akkaoui and Andres had a meeting at Northcote Reserve with Kastellorizos. As he walked from the Reserve Andres was carrying a white plastic bag. On 30 August 2001 there was a meeting in the evening between El Akkaoui and Kastellorizos in the vicinity of the RTA premises at Beverly Hills. They drove over to Earlwood and met Nikiforides. They then drove to the Mahoney Reserve at Marrickville and conversed. They drove back to Homer Street where Nikiforidis left the car. Shortly after that El Akkaoui advised Andres of the meeting and that the guy was "beautiful", that is, there were no problems. In the light of the other evidence the inference is open that Kastellorizos was sent by the appellant and that the meetings related to the delivery of heroin.
In a telephone conversation at 1645 hours on 5 September 2001 El Akkaoui told Rivadavia that he was meeting Kastellorizos on the next day. In a telephone conversation on 7 September 2001 at 8.45am Andres said that he, El Akkaoui and Rivadavia needed to sit down and talk. Andres suggested that they might go to Mas Rivadavia's place later. A little later Andres remarked, "Let's get this happening get the show on the road."
At 1713 on 7 September 2001 the appellant telephoned Andres and arranged to meet him about 1930 to 1945 hours at "Near the water". They noted that "the boys were gonna meet up too". About 1738 hours on 7 September 2001 the appellant telephoned Andres and they postponed their meeting until 1100 hours the following morning. That meeting did not eventuate as Andres was caught up elsewhere at the time.
Pursuant to prior telephone calls there was a meeting about 1731-1734 hours on 7 September 2001 there was a meeting between Kastellorizos, Andres and El Akkaoui in the vicinity of the RTA premises, Beverly Hills. While these men were under observation the police did not see any exchange of goods or parcels. Eventually Akkaoui and Andres went to Andres' home at Sandringham (Dolls Point).
On 8 September 2001 at 1130 hours there was a conversation in a car in Spanish between Andres, and Rivadavia. An unknown female and a female voice are also recorded. Rivadavia answered a telephone call from El Akkaoui. Andres said to Rivadavia, "… I've got rehearsal at two and I've got to see the Greek at you know just before that just tell him." (This apparently refers to a message to be passed to El Akkaoui). It seems that the telephone was passed to Andres who appears to tell El Akkaoui that he would collect him and adds "we've got to get the key … I'll get that with Ruben." There was a general discussion between Andres and Rivadavia about El Akkaoui's relationship with him in their activities.
On 8 September 2001 at 1503 hours the appellant telephoned Andres. On learning that El Akkaoui was with Andres, the appellant said, "see ya later maybe." Andres replied "… if you wait there for a minute I'll be on my own, okay?" The appellant responded "Okay".
After this conversation Andres remarked to El Akkaoui "Nothing happening mate you know what I mean." Andres, in arranging to drop off El Akkaoui said that he was going to tell the appellant to clear out. Andres said that he hated dealing with the appellant because he had brought this guy (Kastellorizos) from nowhere and wanted to put him between him (the appellant) and Andres. Andres complained that after all he had done for the appellant the latter had become nervous. Andres said that the appellant, after dealing for some time with Ruben, did not want to deal with him further. Andres further said, "That's why I'm going to start to put the pressure on him again it's not I'm the boss …". El Akkaoui replied, "He can't do anything without you but you can do …". Andres stated "Now you (and) I know that …".
Andres got out of the car and walked to his meeting with the appellant. After the meeting Andres said to El Akkaoui that he had told the appellant that El Akkaoui was perfect but he (El Akkaoui) thought the appellant's man talked" too much about money and holidays and stuff".
Andres further told El Akkaoui "I won't meet him any more now until next Wednesday Thursday and that's it he'll tell us from there alright, might have to go and check the thing out" and "might have to go and check the office okay." There was a reference to the right key. Andres remarked "whatever … that's it we're off but what's gonna happen is that he probably … say to me … I'll meet with him Wednesday Thursday … he said Raff I don't want to meet ever again …" and "We're gonna go bang" and "Picking up a lot of stuff man." El Akkaoui replied "… two or three a month and we've got it." Andres said, "Yep, but next Wednesday, Thursday night he wants to get together to tell us how it's gonna start quantities of money." It was the Crown contention that this evidenced that an agreement was in existence to which the appellant, Andres and El Akkaoui at least were parties.
Andres further said, "Yep, he (the appellant) said to me Raf from now on its gonna be a lot stricter only you and I talk when we have to maybe once every few weeks we have to talk and he (the appellant) said the guy (Kastellorizos) will say everything to Raed (El Akkaoui) that's it he won't wanna talk to me ever again." Andres explained to El Akkaoui that all future discussions should be had by him with "this guy" (Kastellorizos) and that El Akkaoui and he (Andres) should talk.
When El Akkaoui queried "and the Greek guy" Andres replied, "That's the idea mate, he's a safe man he doesn't want you know to get caught, we are a team man". Andres confirmed that Kastellorizos was going to fix the money.
A question arose as to visiting a place and trying a key. On 11 September 2001 at 1942 hours El Akkaoui mentioned to Andres that they had to "hook up man to go see the place". On 12 September 2001 Andres asked El Akkaoui if he could have a look at the key. El Akkaoui replied that he had checked the key and it was not the correct key. There were a number of telephone calls about the key.
In a conversation with El Akkaoui on 14 September 2001 Andres said "I've gotta see … our Greek Salad … today."
On 16 September 2001 at 1500 hours Rivadavia telephoned El Akkaoui and asked for Greek Salad's phone number. At 1740 hours Andres told El Akkaoui that he had to go and see Greek Salad.
On 17 September 2001 at 1712 Andres telephoned the appellant. They agreed to meet after 5pm on the following day. Andres was to telephone to arrange the details of their meeting. Later that day in response to an inquiry from Rivadavia whether he had gone to see "That One" Andres replied in the negative and that they were going to meet tomorrow.
On 18 September 2001 Andres and El Akkaoui conversed in Andres' car from 1730 to 1744 hours. Andres said that they had to get serious with the key to premises it was desired to use. El Akkaoui remarked that the key was to receive attention tomorrow. He also asked Andres to "hook up with the Greek Salad a bit later". Andres replied that he had told Greek Salad that he would be right for 7pm.
On 18 September 2001 at 1808 hours Andres telephoned the appellant and confirmed their meeting at 7pm at the "latest water".
FA McClure said that during the evening of 18 September 2001 there was a meeting between the appellant and Andres at Northcote Reserve. Following that there was a meeting in the Ramsgate area between the appellant, Kastellorizos and an unidentified male referred to as Romeo.
On 18 September 2001 at 2024 hours Andres telephoned El Akkaoui. Andres confirmed that he had "hooked up" with the appellant and told El Akkaoui to telephone Kastellorizos and arrange to collect the key from him tomorrow.
During the telephone conversation between Andres and El Akkaoui on 21 September 2001 Andres refers to an intended recording session with Rafael Cesan for an hour or two. Later (p275 of Ex DD2) Andres enquired whether El Akkaoui had seen "what's his name about that key" and El Akkaoui replied that that person would not answer his telephone.
On 23 September 2001 Andres telephoned the appellant and suggested that they meet a little later that night. The appellant replied, "I waited for you and I just organised something else". After some discussion they agreed to meet at 8.40pm at the "last one". At 2005 hours that night Andres telephoned El Akkaoui and said, "I'm just gonna have a um Greek Salad." A little later Andres said that he was going to meet Greek Salad near Big John's. Andres told El Akkaoui to tell Ruben to leave, adding, "he should be able to give you the keys. Andres and El Akkaoui discussed meeting at the Bondi Hotel. There is also mention made of little Raf (Cesan).
At 2014 on 23 September 2001 there was a discussion involving Andres, Rivadavia, Cesan, El Akkaoui and a lady called Johanna. Andres stated that he had to go and see Greek Salad but he wanted to be with them. Rivadavia remarked that meeting was important and was he okay. There was to be some singing and music making. There was a later reference to a "little blackie". Cesan had connections with a man who had black skin, Duax Ngakuru.
FA McClure agreed that Cesan and Ngakuru held meetings during February, March and April 2002 which were intended to be surreptitious. These meetings were apparently connected to Cesan's interest in packages coming through the FedEx system. Ngakuru was actively involved in trying to get packages of drugs through the FedEx system in FA McClure's opinion. Police did not have Ngakuru targeted in 2001. Cesan was with Rivadavia at a place where their band intended to play.
At 1822 hours on 24 September 2001 El Akkaoui complained to Andres that a man he wanted was not answering his telephone. Andres encouraged El Akkaoui to keep trying. Andres said that they had to go to the studio as he was needed to "record a couple of little things". Andres indicated that El Akkaoui should continue to telephone and go to a mutually understood but unspecified place where the man was expected to be by 1900 hours. The man referred to was Kastellorizos.
FA McClure said that in her opinion Cesan, in addition to being a member of a band was, as from February 2002, certainly a member of a drug importing enterprise. She did not know whether he was involved prior to that time. She did not exclude that as a possibility.
About 1823 hours on 26 September 2001 Kastellorizos telephoned El Akkaoui. They arranged to meet at 7pm the following day. At 1830 hours on 27 September 2001 Andres was telephoned by El Akkaoui and asked to telephone Kastellorizos and let him know that he (El Akkaoui ) was running 15 minutes late. Andres telephoned Kastellorizos immediately and passed on the message. At 1835 hours Andres telephoned El Akkaoui and confirmed passing on the message.
The meeting which lasted about two minutes occurred in the vicinity of the RTA building in Beverly Hills. A man called Romeo remained in the vehicle of Kastellorizos.

On 2 October 2001 at 1536 hours Aksu telephoned El Akkaoui and enquired, "… when's the business going to start?" He replied that he was "driving to the place now to try the keys", that he was going to ”give the guy a call" and then they were going to hook up straight away". Aksu complained about needing cash and having too many debts to pay. El Akkaoui told Aksu to join the club. Aksu was hoping to become debt free "as soon as the business starts."
At the conclusion of the conversation El Akkaoui said he was "just about to go to the place", go in there", "ring the guy up"," hook it up", telephone Aksu back and "hook up so I can show you the place". That afternoon, about 5.38pm El Akkaoui was seen at Greenfield Parade (Bankstown) by himself.
On 2 October 2001 at 1629 hours Andres telephoned El Akkaoui who said that he went to the place and checked out the key and reported, "it's all clear". He told Andres that he needed to call Kastellorizos. Andres refused and told El Akkaoui to call Kastellorizos. El Akkaoui insisted that Kastellorizos wanted Andres to telephone and Andres agreed to do so. FA McClure said that this telephone call was made 11 minutes before El Akkaoui's vehicle was first seen by police in Greenfield Parade, Bankstown at 1640 hours by a surveillance police officer.
On 4 October 2001 at 0858 hours Andres telephoned the appellant and they discussed possibly arranging to meet.
On 4 October 2001 at 1411 hours Rivadavia telephoned Andres who said, "Let's go upwards". FA McClure agreed that these words appeared regularly in their conversations and often on occasions when drugs were mentioned. Andres said that he was also short (of money)and remarked that he had "to go speak to The Greek".
On 4 October 2001 at 1622 hours the appellant telephoned Andres. They arranged to meet at the shops at 1700 hours.
About 1720 hours Andres and the appellant met at Ramsgate. El Akkaoui sat in the car used by Andres
About 1915 hours that day Andres telephoned Rivadavia and told him that El Akkaoui had just taken him (Andres) to see the Greek Salad. Andres used the clause "Let's go upwards" several times. Andres said that it "went good with Greek Salad who said it was a matter of a very short time now."
On 7 October 2001 at 1509 hours the appellant was telephoned by Andres in response to his earlier call. There was some discussion about the appellant leaving a message with a friend and about a friend telephoning Andres.. At 1613 hours Andres telephoned El Akkaoui to arrange a meeting for a quick chat, with the following day suggested. Andres remarked that he and El Akkaoui were "gonna be very busy" that week. At 1620 hours Mohamed El Akkaoui telephoned his brother Raed El Akkaoui. Raed asked Mohamed whether Andres had called him. Raed said Andres had called and wanted to speak with him. Mohamed asked "what for?" Raed explained "I don't know … (inaudible) I asked him what for? He said to me 'remember once we talked about some stuff'. He said 'me and you are gunna be really busy the next week or two'." Raed wondered whether it was about business and was going to find out and tell his brother, Mohamed.
FA McClure expressed the view that Andres was talking about the prospect of illicit business in relation to the appellant. It could have been about more than one thing.
On 10 October 2001 there was a further conversation between Raed and Mohamed El Akkaoui, in which Raed referred back to the business that they were talking about "yesterday" (8 October). Raed said that Andres did not speak to him about it "So its something completely different, it's between you and him." This follows:
Raed:"I spoke to RAF about the business yesterday… the Greek Guy, it's completely different thing it's not it
Mohamed: It's not it
Raed:… the Greek Guy very soon he hasn't got it but in the next week or two so the thing you do with him now … it's something completely different and he talked to me about it for little update you know what I mean."

Apparently, there were two ventures on foot. FA McClure said that she was not aware of any illegitimate business actually conducted between Andres and Mohamed El Akkaoui.
There were a series of conversations between Raed Akkaoui and Aksu about meeting up and transport arrangements on 8 October 2001
In a telephone conversation on 8 October 2001 at 1912 hours Andres told El Akkaoui that he needed to speak to Greek Salad urgently. He was going to give Andres some feedback. At 1920 hours the appellant and Andres agreed to meet in about 20 minutes at the little hut.
After two earlier telephone conversations between them it appears that Andres and the appellant met about 1957 hours that evening and that the meeting lasted about 7-8 minutes. Much of the conversation was inaudible. However, the appellant said, "you know what you're doing" and Andres replied in the affirmative.
On 15 October 2001 at 2024 hours the appellant telephoned Andres and they agreed to meet about 1830 on the following day. Next day they arranged to meet about 2000 and did so at Northcote Reserve. Prior to the meeting Andres had been in his flat at Sandringham with Rivadavia, Cesan and Victor Andres, his brother. After the meeting which lasted about 10-11 minutes Andres, Cesan and Rivadavia spent the next hour or so in each other's company. At 2122 hours Andres met up with an associate called Alvaro Melendres and remained with him. Rivadavia joined them about 2154 hours. Melendres was suspected in October/early November 2001 by police of wanting to have Andres help him with the importation of cocaine through FedEx from Columbia. The police suspicion was based on telephone intercepts. About 10.25pm on 16 October 2000 Andres, Melendres and Rivadavia were seen together. About 10.50pm Melendres was seen with a South American man, who was never identified.
At 7.53 am on 17 October 2001 Andres sent a message to the Poulos mobile telephone service used by the appellant.
On 24 October 2001 at 1141 hours Rivadavia telephoned El Akkaoui. Amongst other things the latter enquired "how much do I owe you for the pills and how much was the uh … fifty." El Akkaoui then appears to attempt to recover from using the words "pills" and said he had a very bad headache. It is next described as "great food" and "beautiful": and "like a herbal thing man it gives it extra flavour." Rivadavia complains that there was "quite a quantity missing" and was dismissive of the quality of what was left. The quantity missing was said to be "twenty something". Andres was also not happy about the missing items and putting it on the tab. He was "not a TAB". There is some discussion about El Akkaoui having to chase up people who owe him money. There is a reference to Andres being on a diet, he was going to have some Greek Salad. El Akkaoui asked whether Andres had it. Rivadavia replied, "Oh, he was supposed to yeah … let me just advise you not to get alarmed anymore because I don't see it happening". This was repeated. Rivadavia explained "Look how long it's been". El Akkaoui did not accept this and stressed the need to be patient. Rivadavia expressed strong frustration at the delay and doubted whether anything would come out of the association with the "Greek Salad".
On 26 October 2001 at 1944 hours the appellant telephoned Rivadavia and enquired about Andres. The appellant said that he wanted to see Andres. Rivadavia was to pass on that message to Andres. On 27 October 2001 at 1046 hours Andres telephoned the appellant and they agreed to arrange a meeting.
On 29 October 2001 there were four telephone calls between Andres and the appellant for the purpose of arranging a meeting. They met at Ramsgate Beach (near Dolls Point Baths) that evening for about three minutes.
On 29 October 2001 at 2152 hours Andres telephoned and spoke to Rivadavia, amongst others. Andres confirmed that he has seen That One (the appellant) that everything was okay and that he would talk to Rivadavia about it tomorrow.
On 13 November 2001 at 2009 hours the appellant telephoned Rivadavia and asked him to have his friend (Andres) call him. Andres telephoned the appellant at 2043 hours. They agreed to meet the following evening.
On 14 November 2001 at 1637 hours El Akkaoui telephoned Rivadavia. The latter advised that Greek Salad had telephoned the previous day and it was urgent. They speculated about what this meant. Rivadavia later remarked, "he wants to see us so we'll see what happens". At 2016 hours the appellant telephoned Andres for a meeting. The appellant was to telephone later. At 2106 hours Andres spoke with Rivadavia and confirmed that he was to see the appellant soon. Rivadavia said, "Let's go upwards".
There were several telephone calls extending over several days between the appellant and Andres about arranging a meeting, with Andres pressing for one. They met for about five minutes on 17 November 2001 near Big John's.
Between 20 and 22 November 2001 the appellant and Andres left messages for each other. They were attempting to arrange a meeting. At 2221 hours on 22 November 2001 Andres telephoned the appellant. A meeting was proposed. Shortly before he was due the appellant telephoned Andres and told him that something had come up. They arranged to meet the next day. On each of 23, 24 and 25 November 2001 Andres left messages for the appellant to contact him. On 25 November 2001 the appellant telephoned Rivadavia, but the telephone cut out.
On 4 December 2001 at 1208 hours Andres telephoned El Akkaoui. Andres remarked that Greek Salad had left a message with Danny (Danielo Abal), an associate of Andres, Rivadavia and El Akkaoui. Danny, who was Uruguayan, worked with El Akkaoui. FA McClure did not know whether Abal had any illegal connection to narcotic substances
On 4 December 2001 about 2025 hours Andres met Danny Abal who said "The other one said don't call him from your phone …" Andres said "because he wants to give me a new one.." Abal purports to hand to Andres a small packet. Abal disclaimed any knowledge of what it contained. FA McClure doubted if there was a packet present. Having regard to the entire terms of the conversation and the context in which it occurred she thought that Danny Abal was passing on messages from the appellant to Andres.
On 5 December 2001 Rivadavia enquired whether they were going to see the appellant. Andres does not answer directly but leaves the impression that they are not. There were no recorded conversations between 5 December 2001 and 9 January 2002.
The important conversations of 9 January 2002 are set out earlier. On 19 January 2002 Andres, after remarking that he was supposed to be with Greek Salad asked Rivadavia to use a public phone to tell the appellant that he was running late and enquire if they could do it tomorrow, that is, meet tomorrow. On 20 January 2002 Andres told El Akkaoui that he had not met with Salad yet but he would do so when he left work. On 21 January 2002 Andres told Rivadavia that he had to see "Greek Salad six thirty tomorrow." In different conversations on 22 January 2002 Andres told El Akkaoui and Rivadavia of his intended meeting with Greek Salad.
On 22 January 2002 at 1317 hours Kastellorizos telephoned El Akkaoui and asked him to have Bob telephone Mark. El Akkaoui conveyed that message to Andres in a telephone conversation at 1319 hours that day. Andres stated that Mark "imports all this stuff for all the Creatine man." Mark was the appellant. There is a reference by Andres to Creatine having the liquid one and new products and being an importer who was doing really well at it and "building about ten grand a month … of that stuff." There is a discussion about the high costs of the drink and its use by high ranking sportsmen and those in the special forces of the Army. Mark was described as a big boy. Creatine was said to give energy to the recipient. Andres said that he wanted to start the gym very very soon and that he was going to ring "Mr … Greek Goddess (sic) " . El Akkaoui asked Andres to let him know what happened. Andres said that it was getting close and he would let him know.
On 22 January 2002 at 2135 hours Andres and the appellant met at Dolls Point and the part of their meeting which took place in Andres' car was recorded. Andres said he would telephone the appellant who replied "If I need …you before Saturday I'll call you." At 2145 hours the appellant used a public telephone.
At 1317 hours on 29 January 2002 Kastellorizos telephoned El Akkaoui and asked him to tell Bob (Andres) to ring Mark (the appellant) "… late this afternoon". At 1319 El Akkaoui relayed this message to Andres who said he would call him (the appellant). El Akkaoui said, "let me know what happened," Andres responded, "… it's getting close mate so I'll let you know for sure … "and we might have to get together".
On 8 February 2002 at 2031 hours Kastellorizos telephoned El Akkaoui and asked him to tell Bob "to ring the other one". A minute later El Akkaoui left a message for Andres to telephone him urgently as he needed to call "a certain friend of mine". At 2044 hours El Akkaoui telephoned Rivadavia and asked him to get in touch with Andres and tell him to contact Salad (the appellant).
On 9 February 2002 at 2008 hours the appellant telephoned Rivadavia and said that he was looking for "our friend" as he needed to see and talk to him. The appellant suggested Rivadavia ask "our friend" to call him (the appellant) that night. At 2010 hours Rivadavia telephoned Andres and said "Greek Salad called me" and requested Andres to "call him [Greek Salad] now please." Rivadavia reminded Andres not "to let the chicken go cold because later we don't eat anymore." At 2133 hours Andres telephoned the appellant. They arranged to meet the following evening. At 2146 hours Andres relayed this news to El Akkaoui. In a conversation at 0427 hours on 10 February 2002 Andres told El Akkaoui that he had to go and see Greek Salad and later that day at 1537 hours El Akkaoui told Rivadavia that Andres was going to see "Greek" after work. That news was well received by Rivadavia. At 1730 hours Andres told El Akkaoui that he had been to see Mr Greek Salad.
The police had no surveillance officers operating on 10 February 2002 and did not know whether Andres and the appellant met on that day,
On 12 February 2002 at 1925 hours the appellant telephoned Rivadavia and asked him to ask "our friend" to call again. The appellant said that he had not yet seen him (Andres) and asked "… what's going on with you guys". The appellant by his comment seems exasperated that Andres always seems tied up and is reluctant to accept that Andres was too busy to see him. The appellant told Rivadavia, "yeah tell him [Andres] I'm waiting." At 2040 hours Rivadavia telephoned Andres and said that the "Greek Woman" (the appellant) had called and wanted Andres to telephone him urgently. Andres did not want to do so. At 2106 hours Rivadavia telephoned the appellant and advised that Andres would not be able to telephone "until about this time tomorrow".
On 14 February 2002 a package was lodged with FedEx in Belgium that attracted the attention of law enforcement authorities in Belgium and Australia. The package was consigned to "Michael Le, Intaface Aust Pty Ltd, O'Riordan Street, Sydney." Interface Australia was a legitimate existing company which had an account with FedEx in Sydney. The costs associated with the sending of that parcel were billed to a different company which also had an account with FedEx and the bill was sent to that different company.
That parcel arrived in Sydney on 17 February 2002 where it was processed through the FedEx system and sorted for dispatch to go to the O'Riordan Street address. On 18 February 2002 the package was delivered to that address and passed to Mr M Sutton who worked for Interface, On opening up the package and inspecting the contents Mr Sutton realised that the package was not for Interface. The package contained no drugs It is believed to have contained low value computer parts. He kept one, which was later given to the police, and threw the rest away.
There were two guarded telephone conversations between Andres and Cesan on 14 February 2002. In the latter conversation there is a reference to a sample.
At 0205 on 16 February 2002 Rivadavia sent an SMS message to Andres stating "OK I saw Greek today Must Cal Him 2 Morrow B4 11am". At 10.27am Rivadavia telephoned Andres, saying "…The Greek wants you to call him." It was also stated "we still got it", "Beautiful day", and "Iot's all right". At 1139 hours Andres telephoned the appellant. They agreed to meet in about 20 minutes at a car wash. The police had no surveillance on that day and thus could not say whether a meeting took place.
On 18 February 2002 at 2333 hours Cesan telephoned Andres who supplied certain numbers, namely 0011 2793 4559 4642. Cesan promised to ring "that lady". That was a ruse. 0011 are the numbers dialled to obtain an international connection and had nothing to do with the other numbers being given. FA McClure explained that 0011 should be disregarded save for its deceptive quality. The airway bill numbers for FedEx all have 12 digits. If you deduct each of the remaining numbers from 10 the resulting number is 8317 6551 6468. The number on the parcel sent from Antwerp was 8310 6551 6468. Thus one digit did not correspond. Cesan clarified that when he said, " … did you see that there is another number that is of seven." Cesan was asked to look into the matter.
In a telephone conversation on 19 February 2002 at 2336 hours Cesan asked Andres did he call that girl and Andres replied in the affirmative and that all was okay.
On 19 February 2002 a package was sent from Antwerp through the FedEx system addressed to Michael Lee, Interface Australia Pty Limited, O'Riordan Street. The airway bill number for the second package was 8310 6551 6478. The second package arrived in Sydney on 21 February 2002. It was processed by FedEx and sorted for dispatch. When the second package was lodged in Antwerp the FedEx computer system was activated so as to nominate the recipient as Software Associates Pty Limited. On 22 February 2002 FedEx contacted Software Associates Pty Limited about the collection of the package and was referred to Mr Wayne Johnson. Ultimately the second package was delivered to Mr Wayne Johnson. The police seized it. It was found to contain packing foam and several compact disk racks.
On 25 February 2002 a third package was consigned from Antwerp to Jenny McGrath, Jenny M Horizon Austral Pty Limited. The airway bill for that package was given the number 8310 6551 6480. It arrived in Sydney late on 27 February 2002 and was at FedEx premises the following morning. Ultimately the package was delivered to the business premises of Horizon Austral at Parramatta Road, Camperdown on 1 March 2002. It was handed by a fellow employee to Zhenya Mulet, Cesan's cousin. The police seized the package after delivery. It contained packing material and various low value computer goods.
On 26 February 2002 Wayne Johnson contacted FedEx and told them that the second package did not belong to him and arranged for FedEx to pick it up from an address in North Sydney.
On 27 February 2002 at 2020 hours in a conversation between Andres and Cesan, which is hard to follow, there is a reference by Cesan to Wayne Johnson. The conversation suggests that something is going on but it is difficult to determine what it is. At p6 of the transcript there is discussion about who "is this guy". At p7 Cesan seems to contemplate telephoning the company and asking to speak to Wayne Johnson and he's "going to back the number from FedEx". Andres told Cesan to tell him they were trying to find out why the packages went to him. Was there a wrong label or some other mistake. They were going to look into the matter and get back to him. Cesan remarked "The new one is all right" and Andres replied, "I think it arrived tonight … there is a little problem … look at the address they mucked it up when they made the package …" . At p10 Andres stated, "It comes via Singapore …" and "Check how the other one is coming …".
At p8 there was some discussion about the wrong address on the third package. Parramatta Road was typed in the Belgium office computer data box of FedEx as "Para Mattard". Andres and Cesan were aware of the slip. The address should have been Parramatta Road, Camperdown. At p13 Cesan said "… if this one goes through all right the new one passes all right" to which Andres replied, "the other one comes on Monday". Monday was 4 March 2002. The "dummy run" package arrived in Sydney on 8 March 2002 and was delivered by FedEx on 11 March 2002. Johnson is referred to as the crazy one.
Andres said he had the three numbers, the two old ones and the new one. There is further discussion about how W Johnson became involved and the question is asked if somehow he came across his account. Various possibilities are canvassed. Cesan appears to have been anxious to find out what happened. He said, "I go on to a public phone and talk talk talk and then I'll get back to you." Cesan appears to want to make a number of calls from a public telephone in order to ascertain what happened. After further discussion, which is not easy to follow, Cesan said that he needed one or two accounts from USA or from Australia. There is some discussion about using an account and paying in cash for sending packages and that Argentina did not allow you to send packages. Cesan said that he needed more accounts and Andres "bet" Cesan that on the following day he (Andres) would give Cesan twenty accounts. Each concluded with the catchcry "Lets go upwards". The lengthy conversation as a whole points to Andres and Cesan being involved in importing packages from overseas and trying to do so in a way where they are not detected and the package does not go to a destination which is unacceptable to them.
As is apparent I have digressed from the main narrative to highlight the involvement of Andres, Cesan and others in importations of prohibited drugs other than the one the subject of the trial. I now return to the main narrative.
On 24 February 2002 at 2053 hours the appellant requested El Akkaoui to "ask your friend to ring Bob or can you ask Bob to ring …" At 2229 hours El Akkaoui advised Andres that the appellant wanted Andres to call him.
On 25 February 2002 at 1819 hours the appellant asked Mas Rivadavia to have him (Andres) call him. At 2009 hours Andres telephoned the appellant and they arranged to meet near Big John's.
On 27 February 2002 at 2130 hours the appellant asked Rivadavia to have "him" give the appellant a call. Rivadavia immediately telephoned Andres and advised him that Greek Salad wanted him (Andres) to telephone in half an hour. There was much conversation about Andres suffering from eye disease and the treatment he should receive. There was also a veiled reference to a matter affecting Rafi (possibly Cesan) to be discussed at a later stage.
This possibly related to matters discussed at a meeting Andres had with Cesan earlier. Rivadavia was concerned about something being jinxed, possibly relating to Cesan.
At 2228 hours on 27 February 2000 Andres telephoned the appellant from a public telephone. They agreed to meet around 1730 hours on the next day.
At 1933 hours on 28 February 2002 Cesan and Andres made arrangements to meet. It was suggested that Rivadavia might also be there. At 1951 hours there was another telephone conversation between Andres and Rivadavia. There was some discussion about what to do with something which was "saladonsky". A lot of the conversation seems incomprehensible. It was hard for an outsider to know what the parties were talking about. There is a reference to Andres needing "that one". There is a further telephone conversation between them at 1959 hours in which Rivadavia asks Andres "Did you call That One that told me you to call him".

FA McClure understood that the proposed drug deal involved Fernando Andres, Illhan Goktas, Russell Cole and some other men and an importation of cocaine through Australian Post.
At 1443 hours Goktas telephoned Andres, who had spoken to his brother. Goktas claimed it was fortunate that Russell Cole became involved as he knew the men whom Fernando took the money off and they were about to kneecap him (Goktas) when the police arrived. Apparently, the men gave the money to Goktas who then gave it to Fernando after which it seemed to disappear. Goktas claimed he had no money.
In a telephone call at 1746 hours on 1 April 2002 Fernando Andres sought the assistance of Rafael Andres. Apparently, the group of men had taken the truck driven by Fernando, but which belonged to St Vincent's. It was essential that it be recovered. Rafael Andres undertook to telephone Illhan Goktas. Andres did so at 1749 hours on 1 April 2002. Goktas explained the position and that no-one believed Fernando. Rafael Andres asked Goktas to have Radar (Haydar Bolat) (one of the men involved in taking the truck) telephone Andres.
Goktas said, "What I want to do is with Ruben". When asked by Goktas how Alex (Bittner) was doing Andres replied, "Oh he's doing post, man you know what I mean?" Goktas replied, "Why don't we do it that way?" Andres responded, "He's takin' his chances. Well, you can, you can. Talk to my brother about it … he'll tell you that you can … it's a big risk."
Andres said that he would ring Radar from outside. There was then a spirited conversation as to what Andres should say and do. Goktas wanted Andres to promise to pay $2500 and interest. Andres was not prepared to do so. Andres stated that he did not have the money to pay Ali Riza Bolat. Goktas said he had to go and requested Andres to telephone him later. FA McClure thought that Ali Riza Bolat had invested in a proposed importation of drugs. Haydar Bolat and Ali Riza Bolat were associates of Russell Cole and all of them were involved in the proposed importation.
At 2037 on 1 April 2002 Goktas telephoned Andres and urged him to take a conciliatory approach to Radar (Haydar Bolat). Rafael Andres declined to assume personal liability for the debts of Fernando, but he was prepared to tell Radar that he would press his brother into making sure that Radar received his money back. Goktas gave Rafael Andres the telephone number of Radar.
At 1907 hours on 4 April 2002 Goktas telephoned Andres who insisted that he had nothing to do with his brother taking $2500 – and his brother's relationship with the group of men seeking the return of the money.
Goktas stated that Fernando Andres had told this group that Rafael Andres "gets stuff from the federal express". Rafael Andres replied, "I've got nothing to do …" and that his brother could say that he flies to the moon. Goktas stated that the group believed Fernando and gave him the money. Rafael Andres told Goktas not to bring him into this matter – he was getting sick of it and it was not his problem.
FA McClure said that while the police suspected Fernando Andres (Rafael's brother) was a person possibly interested in importing drugs, Fernando was a person whom the police did not believe was capable of organising the importation of narcotics into the country and, she added, that was what the evidence proved.
FA McClure said that there were three packages sent from Germany. Police intercepted the third package as earlier mentioned. On arrival in Sydney on 10 April 2002 police had custody of it and then put in place arrangements whereby the police were informed about any attempts to deliver it or to collect it. On 24 April 2002 about 1745 hours a man by the name of Iden Chan picked up the package and got into a taxi. While in the taxi he telephoned a man called Ho and was heard to tell Ho, "dad I have got Mum's package, I'll be home soon." Mr Chan had the taxi take him to an address in Croydon. He was arrested reaching into the boot of the taxi to pick up the parcel at the Croydon address.
The second package sent from Germany was dispatched on 28 March 2002 and arrived in Sydney on 31 March 2002. Police did not intercept this second package. Nor did they intercept the first package sent from Germany.
I have not referred to some of the conversations recorded nor to substantial parts of many of the conversations. Some parts of the conversations cannot be readily understood without more background information and it is not possible, on occasions, to decipher the code being used. However, taken as a whole the conversations reveal a close relationship between Andres, Rivadavia, El Akkaoui and Cesan and a close working relationship between Andres, Rivadavia, El Akkaoui, the appellant and Kastellorizos. Andres, Rivadavia and El Akkaoui were close friends but they were not friends with the appellant. Those relationships were on foot from at least late August 2001 (and in most instances earlier than that) and continued until April 2002.
A close study of the many tapes reveals that the various conspiracies and importations were quite separate and did not involve all the same people. The use, at least in part of similar methods of operation and the sharing of musical interests and activities by Andres, Rivadavia and Cesan does not mean that the conspiracies were mixed in together and could not be separated or that there was confusion as to them.
Andres and Rivadavia were well placed to be in a number of conspiracies and importations and were so involved but they did not have sufficient funds to finance any of them. The conspiracy involving the appellant, Andres, Rivadavia and El Akkaoui, with the assistance of Kastellorizos and Aksu with delivery to Nitsas and Nikiforidis was a separate one and centred upon the delivery of heroin. It was of long standing and stretched from August 2001 to April 2002 with the appellant wishing to appear to have no or little involvement. His caution, in large measure, dictated the speed at which the conspiracy was implemented.
The evidence discloses that Andres, Rivadavia, El Akkaoui and the appellant were active in their endeavours to import prohibited drugs. The appellant preferred that others should make the requisite arrangements and carry out the ground work.
The statements of Andres on 22 January 2002 make it plain that the appellant was an importer "of stuff". From 9 February 2002 the appellant was in frequent contact with Andres and his assistants.
There was telephone contact between Andres and the appellant on 2 March 2002 and between the appellant and Rivadavia and Andres and the appellant on 6 March 2002. The telephone contacts on 6 March 2002 followed on FA Burgess sending a FAX letter to Andres requesting information about the three packages sent via FedEx from Antwerp.
Further, as mentioned, on 7 March 2002 a package addressed to Comparts Solutions was delivered to FedEx in Hong Kong. It arrived in Sydney on 8 March 2002, was delivered to the Botany Road address on 11 March 2002 where it was received by Aksu.
On 10 and 11 March 2002 Andres telephoned the appellant and on 11 March 2002 the appellant telephoned Rivadavia. In all the appellant was a party to some five telephone calls on 11 March 2002. Andres and the appellant also met for over twenty minutes. The telephone calls on 11 March 2002 took place after 8.00pm which was well after the search of the vehicle in which El Akkaoui was travelling.
On 29 March 2002, while Andres was in Singapore, the appellant and Rivadavia met. At 0859 on 30 March 2002 El Akkaoui telephoned Rivadavia and said, "I went to see um the Greek man … and you guys have to be okay. Raf has gotta be um at that place where we always have coffee at … twelve cause my friend's … got that phone number for him As mentioned, the appellant and Andres, met within McDonald's, with the appellant having a white plastic bag and appearing to give something to Andres. The meeting inside McDonald's, in all, lasted about 12 minutes, that is from 12.11pm to 12.23pm when both men left the inside of McDonald's. They then walked together for some distance, separating about 12.34pm. There was activity from 1.02pm to 9.29pm involving Rivadavia, El Akkaoui and Andres.
The evidence does not reveal any further telephone contact or meetings between the appellant on the one hand and Andres, Rivadavia and El Akkaoui on the other. There was telephone contact between Kastellorizos and El Akkaoui on 31 March 2002.
On 3 April 2002 a second package addressed to Comparts Solutions was delivered to FedEx in Hong Kong. From 11.06am on that day there were telephone calls between El Akkaoui and Rivadavia, amongst others.
On 4 April 2002, the day on which the second package lodged with FedEx in Hong Kong was intercepted at Sydney Airport and the heroin removed, there were many telephone calls involving Andres, El Akkaoui and Rivadavia throughout that day, from 8.41am onwards and both before and after Aksu collected the package from FedEx. The preparations and organisation for the receipt and delivery of the heroin were considerable.
There was a gap of but four days from the last meeting of the appellant and Andres on 30 March 2002 and the delivery of the parcel containing heroin to FedEx on 3 April 2002 in Hong Kong. That is minimal. Further, after the meeting on 30 March 2002, the appellant would have wished to and did distance himself from those involved in the collection and distribution of the parcel containing heroin.
On 9 April 2004, pursuant to the execution of a search warrant at the appellant's home at 17 Harris Street, Sans Souci, the following were found and seized:
-four Nokia mobile phones, an Ericsson mobile phone, a quantity of phone cards, a pager bearing the number 9963 2073 and two starter kits for pre-paid mobile telephone services all of which were located on a computer desk
-a further Ericsson mobile phone which was behind a lounge together with a Link pager
-two cardboard boxes for two Ericsson mobile phones in the linen cupboard
-two phone cards in the main bedroom
-an Ericsson mobile phone, a box for an Ericsson mobile telephone and a Motorola mobile phone in the laundry.

Appellant's Submissions

275The appellant submitted that the evidence was not capable of:
(a)   proving beyond reasonable doubt that -
(i)    the appellant became a party to a concluded agreement to import any narcotic substance prior to 15 December 2001; and
(ii)   even if there was an agreement prior to 15 December 2001 it involved an agreement to import heroin as opposed to some other narcotic substance
(b)   excluding the reasonable hypothesis that even if there was on foot at all relevant times a conspiracy to import heroin that the appellant himself became a party to the importation as opposed to being merely aware of the intention of others to import heroin but then being in a position to be able to distribute the heroin after the others imported it.

276The appellant submitted that the prosecutor had invited the jury to use ex post facto deductive reasoning and had argued that because heroin arrived in a parcel on 4 April 2002, the subject of all previous communications and intercourse between the appellant and the other co-conspirators concerned must only have concerned the importation of heroin. Further, the jury were invited to conclude that agreement to import heroin was reached prior to 15 December 2001, that the conspiracy was never abandoned before or after that date and that it continued seamlessly through until 4 April 2002.
277The appellant submitted that this was a dangerous form of logic where at least some of the participants were also conspiring with others to import different types of drugs through the FedEx system at roughly the same time. It was submitted that this was a case of truly conflicting hypotheses. Reliance was placed on R v Scienczuk (1981) 5 A Crim R 243 at 245 and R v Greenfield (1973) 3 All E R 1050 at 1054. This submission is not correct as a detailed consideration of the facts demonstrates.
278It was contended that it was not simply a matter of determining whether there was sufficient evidence for the case to be left for the jury, but rather whether, in all of the circumstances the jury could have safely concluded beyond reasonable doubt that the appellant was a party to the instant conspiracy as particularised and left for their consideration. The appellant relied on the following:
(a)   the appellant never spoke about the enterprise in any telephone conversation
(b)   none of the co-conspirators spoke about the nature of the enterprise on the telephone such as to suggest that the drug involved was heroin or to suggest that the role of the appellant in the general enterprise was as a party to the importation as opposed to somebody who merely knew of their involvement in the importation
(c)   there long gaps in the physical surveillance evidence suggesting that the planning was dormant or had been abandoned.
(d)   many of the conversations involving the alleged co-conspirators suggested that no crystallised agreement had been reached with the appellant – especially prior to 15 December 2001
(e)   the prosecution could not establish any link between the appellant on the one hand and the dispatch of any parcel from overseas. No link was established as to the parcel containing the heroin which arrived on 4 April 2002
(f)    there was no evidence indicating that the appellant had any connection in Hong Kong
(g)   there was no evidence that he had control over the FedEx parcel system. That was the domain of Andres and Rivadavia, both of whom were employed by FedEx
(h)   there was no evidence to link the appellant with the premises in Botany Road rented for the apparent purpose of receiving the parcels. Those premises were rented by a number of men, none of whom matched the appellant's description
(i)    the application for the registration of the business name "Comparts Solutions" was filled in by "Alan Lee" who signed part of the form in Chinese writing.

279The appellant submitted that the largest hurdle for the prosecution resulted from the initial discussions between him and Andres and others starting in August 2001 and the parcel not arriving until April 2002 and that during this period many events occurred which cast doubt on:
(i)whether any agreement was reached prior to 15 December 2001
(ii)whether the object of the discussions between the appellant and the other illegal conspirators remained focussed on the same objective, i.e., the importation of heroin as distinct from any other drug
(iii)whether there was an abandonment of any previous scheme and a subsequent re-ignition of interest in a drug related enterprise
(iv)whether the appellant agreed to be a party to the importation as opposed to simply being aware of the FedEx employee's ability to be able to import prohibited drugs and demonstrating an interest in distributing those drugs at a later time.

280One of the fundamental problems with the appellant's submissions is that they tend to focus on evidence which was not adduced, rather than evidence which was.
281I do not see any difficulty arising from the time it took to implement the conspiracy, that is, about 8 months. The offence lies in the making of the agreement. With the Customs and Police supervision which existed (and to which reference was made) and the internal supervision and security which existed at FedEx with its internal cameras, it was necessary to hasten slowly. Andres realised that he was in a vulnerable position. There was a noticeable gap between the dummy run from Hong Kong on 7-8 March 2002 and the importation of the heroin on 3-4 April 2002, and the method of delivery was changed. It is not a valid objection that it took some time to implement the conspiracy. Nor can reliance of substance be placed on the apparent lack of activity between 5 December 2001 and 9 January 2002. This is, after all, the Christmas and holiday period when people are likely to be otherwise occupied. It was primarily a matter for the conspirators when they wished to actively implement the agreement.
282It is necessary to consider the totality of the conduct of the appellant and the co-conspirators. It is a mistake to focus upon individual conversations. The conspirators were careful not to say too much that was overt in relation to drugs although they discussed other subjects, for example the making and recording of music and their relations with various women at considerable length. Short and isolated meetings were held. Essentially, the Crown asked the jury to draw inferences from what was said and done. The inference that they were involved in importing drugs and that the drug was heroin was irresistible.
283The conversation recorded at 1547 to 1607 hours on 8 September 2001, especially at p3 makes it apparent that the agreement existed at that point. Andres referred to a forthcoming meeting with the appellant where he wanted to get together "to tell us how it's gonna start and where the money would be discussed". Everything was "gonna be a lot stricter". A little later, after a reference to the appellant by El Akkaoui, Andres remarked, "That's the whole idea mate he's safe man he doesn't want … to get caught we are a team man." A cautious conspiracy had been formed.
284It is apparent from the conversations of 5 April 2002 between Andres and Cesan and the remainder of the evidence, that Andres' involvement with Cesan was unrelated to Andres' connection with the appellant. There was no evidence of any telephone contact between the appellant and Cesan nor any evidence of their meeting during the period of the conspiracy.
285While Andres was involved in other illicit ventures during the period of the conspiracy with the appellant, the crucial question is whether the appellant was involved in a conspiracy with Andres, Rivadavia and El Akkaoui to import heroin. The evidence establishes that they were involved in a drug conspiracy. It further establishes that the drug involved was heroin as imported on 4 April 2002.
286It should not be overlooked that:
(a)   the appellant met with Andres on the night of 11 March 2002
(b)   the appellant used Kastellorizos to act as his intermediary in the conspiracy
(c)   there was an association between Kastellorizos and Nitsas, the intended recipient of the heroin which commenced well prior to 15 December 2001. On 30 August 2001 Kastellorizos and El Akkaoui went in the latter's car to Homer Street, Earlwood. Kastellorizos got out of the car and spoke to Dimitrios Nikiforidis who was walking along the street towards the car. At about 6.53pm Kastellorizos leaned into the front passenger side of the car and appeared to give El Akkaoui the thumbs up signal. He then got out of his car and the three men had a conversation. About 6.54pm the three men got into El Akkaoui's car which was driven to the H J Mahoney Reserve in Marrickville where they engaged in conversation for a few minutes at the rear of the toilet block. The car was driven back to Homer Street where Nikiforidis alighted. Subsequently El Akkaoui reported that Nikiforidis was all right – beautiful.
(d)   On 21 March 2002 at about 1847 El Akkaoui, Kastellorizos and Nikiforidis were seen conversing in Homer Street, Earlwood and subsequently at the H J Mahoney Reserve for about four minutes. Nikiforidis was driven back to Homer Street in Kastellorizos's vehicle and Nikiforidis alighted. On 4 April 2002 the parcel was taken to Homer Street, Earlwood and handed to Dimitrios Nitsas who was accompanied by Christopher Nikiforidis, Nitsas and Nikiforidis having emerged from 61 Homer Street, Earlwood.

287After a detailed examination of the evidence I have concluded that it was reasonably open to a jury to be satisfied beyond reasonable doubt that the appellant became a party to a concluded agreement to import a narcotic substance prior to 15 December 2001, and that it involved an agreement to import heroin and this to the exclusion of all other hypothesis. There was no other rational hypothesis open.

288I have further concluded that it was reasonably open to a jury to be satisfied beyond reasonable doubt of the guilt of the accused of the offence charged. See M v The Queen (1994) 181 CLR 489 at 493-494 and MFA v The Queen (2002) 213 CLR 606.
289I propose that the appeal against conviction be dismissed.

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LAST UPDATED: 22/04/2005