R v Melo

[2000] QCA 361

[2000] QCA 361

COURT OF APPEAL

McPHERSON JA
THOMAS JA
JONES J

CA No 160 of 2000

THE QUEEN

v.

CALOS ANDRES GALLEGO MELO  Appellant

BRISBANE

..DATE 07/09/2000

JUDGMENT

JONES J:  The appellant was convicted on 26 May 2000 with the offence of knowingly being concerned with the importation of narcotic goods, namely cocaine.  The offence occurred between 1 November 1998 and 10 December 1998.

The appellant appeals against the conviction on two grounds.  Firstly, that the evidence adduced by the prosecution relating to the package contained in the prohibited import was insufficient either alone or in combination with other admissible evidence to prove the element of importation.

Secondly, that the directions in the summing-up to the jury relating to the evidence of accomplices failed properly to emphasise the possibility of fabrication in the evidence of those witnesses thereby leading to a miscarriage of justice.

The adequacy of the evidence as to importation was raised as an issue after the close of the prosecution case.  Argument then centred upon the use the jury could make of the contents of a consignment note affixed to the parcel which purported to show that the parcel was sent from South America.

Counsel for the accused argued that the terms of such label amounted to hearsay evidence and was therefore not admissible.  His Honour determined this point relying on various passages from the separate judgments in Pollitt v. The Queen (1991-2) 174 Commonwealth Law Reports 558 and Walton v. The Queen (1987-8) 166 Commonwealth Law Reports 283.

He concluded that, "The content of the consignment note can be regarded as something that was placed on the container containing the cocaine by someone purporting to be out of Australia indicating the value of the consignment in what seemed to be US dollars and would seem, on its face, the document was filled in and singed on 28 November 1998.  In my view those are all facts which irrespective of the truth of them are facts which can be properly placed before the jury for it to evaluate in determining whether that evidence together with all the other direct evidence from the two witnesses called by the Crown can satisfy the jury beyond reasonable doubt that it is indeed the box containing cocaine examined by customs officers in the DHL bond area at Brisbane airport on the day in question was imported into Australia."

His Honour then ruled that there was sufficient evidence to allow the jury to consider whether that element of the offence has been established. 

Turning to his summing-up to the jury on this point his Honour gave the following direction after advising the jury that they had to decide whether the drug was imported into Australia contrary to the customs legislation.  He invited the jury to look at the evidence of the two Crown witnesses Miss Maloney and Mr Edwards and he detailed their evidence and he went on, "Now, you can look at all that evidence.  It is direct evidence from Miss Maloney and Mr Edwards which says the agreement was that she was to receive something which was going to be delivered to her from South America.  You can look then at Exhibit 1, the box itself.  You can examine it carefully.  It has the sort of consignment note on it pasted to the box.  It is filled out in Spanish and it purports, on the face of it, to record that it was posted from Venezuela and directed to Lidia Spehar at Guy Street."

Further into the summing-up the learned trial Judge referred to the evidence of the customs officer, Mr O'Brien wherein that witness described DHL as a courier which regularly dealt with international cargo and described that when such cargo arrived it would be put into a bond store so it could be examined by customs officers and if passed by customs would be sent off to the address on the consignment note.

The jury therefore had before it direct evidence of a customs officer as to the system of dealing with parcels overseas which resulted in their being placed in a particular secured area for customs examination.  The subject parcel was found in this area. 

There was the direct evidence of the accomplices to the plan to import.  He detailed their separate conversations with the appellant.  The first accomplice, Miss Maloney, said the appellant asked her to "accept a package of cocaine from South America".  (Record 94, line 20.)

The second accomplice, Mr John Edwards, was told by the appellant that the parcel was "coming from overseas".  It was qualified by saying that he was pretty sure that was said and further that the parcel was important to the appellant.  (Record 136, line 40.)

There was no specific challenge to these pieces of conversation as the appellant's defence was that he did not know either of these persons and therefore had no occasion to converse with them.

Finally, there was the DHL consignment note affixed to the parcel which, on its face, showed the point of consignment of the parcel by DHL as Venezuela.  That is Exhibit 1.  The first ground of appeal does not make any direct challenge to his Honour's ruling on the no case submission.

Consistent with the ruling his Honour then made, he directed members of the jury that the contents of the consignment note was part of the circumstances to which they could have regard.  That direction is consisted with the principle that such evidence, if relevant, is received not as an exception to the hearsay rule but as original circumstantial evidence.

Such a point was considered by the Court of Criminal Appeal in New South Wales in Queen v. Leroy 55 Australian Law Reports 338.  The case dealt with the use which could be made of the fact that postage stamps and post marks on a parcel indicated the point at which it was posted.

At page 342 Chief Justice Street said, "The packages and the post marks they bore did amount to admissible evidence upon which the jury could conclude that the packages had come from Peru.  Indeed, it would be extraordinary if the jury had reached any other conclusion in the light of the whole of the facts."

At page 344 Justice Glass said, "In my opinion, the evidence as received was not an exception to the hearsay rule, that is, original or circumstantial evidence.  It's probative value depends not on assertions by unknown persons but upon the availability of an inference from the presence of markings on parcels which are shown to have passed, in the ordinary way, through a system specifically established for the purpose of handling overseas mail."

Whilst the consignment note on the parcel in this case does not carry any markings which have any official cachet (to use the term adopted by Chief Justice Street) it nonetheless does have markings of a recognised international courier DHL which has a licence to carry imported goods and with that an obligation to ensure that the goods are placed in the bonded area for customs examination.

The principle of admissibility of this type of evidence
was considered subsequently in Walton v. The Queen
166 Commonwealth Law Reports 283.  See particularly from the joint judgment of Wilson, Dawson and Toohey JJ at page 203.  It was considered, again, by the High Court in Pollitt v. The Queen 174 Commonwealth Law Reports 558.  See particularly the joint judgment of Justices Dawson and Gaudron (with whom Justice Deane agreed) at page 602.

In this case the relevant fact is whether the parcel came into Australia from overseas and the terms of the consignment note are relevant to this issue.  Whilst they are not looked at for the purpose of establishing the truth of their terms they do add to the circumstances which the jury could properly consider in order to draw inferences which might establish the fact to be proved beyond reasonable doubt.

In my view, his Honour's direction as to the use to which the consignment could be put was correct.  More generally, I take the view that the direct evidence of Mr O'Brien as to the system for the landing and inspection of imported goods, the direct evidence of Miss Maloney and Mr John Edwards (which the jury clearly must have accepted) and the circumstances of the presence of the consignment note written in the Spanish language and bearing the date that it did was ample evidence upon which the jury could be satisfied beyond reasonable doubt of the element of the importation.

The second ground of appeal raises the question of the adequacy of his Honour's direction to the jury about the scrutiny of the evidence of an accomplice.  In the context of discussing the onus of proof being upon the prosecution even though the accused gave evidence, his Honour said, "Of course you would be careful to evaluate his (the appellant) reliability as you would be to evaluate the reliability of all other witnesses; the policeman and so on and the two accomplices Miss Maloney and Edwards who, on the Crown case, on their explanation had a change of heart and eventually told the police the truth and came to this Court and told you the truth."  (Record 288, lines 40-51.)

Later, when dealing with matters of evidence his Honour gave quite specific direction on the need to scrutinise carefully the evidence of accomplices and to determine whether there was any corroboration for such evidence.  The directions commence at page 304, line 40 of the record and continue to page 312, line 10.

In the course of that discussion the learned trial Judge delivered such salient remarks as follows:  "You may think in the ordinary scheme of things honest people are not involved in criminal offences which are normally committed in secret with a view to avoiding detection and you might think it is not infrequent that accomplice's evidence must be relied upon.  However, because it is dangerous or you think it might be dangerous to do so particularly in a case like this where the accomplices agreed to give evidence to assist the authorities, the police and the Crown, then you can take into account where there has been submitted on the part of the accused, that they have simply put their heads together and concocted a story which has no truth in it for the purpose of reducing their own sentences for the offences to which they have pleaded guilty."  (Record 306, line 35 to 307, line 20.)

Further, on page 307 of the record his Honour said, "Sometimes, in the experience of the law accomplices have tried to shift the blame from their own shoulders by dobbing in or making assertions against other person who they assert were involved in criminal activity also so that they will be rewarded by having their sentence reduced.  Because, on the Crown case and on their own evidence they were accomplices.  You must exercise great care in considering their evidence."

The learned trial Judge dealt with the question of corroboration and identified evidence that was capable of supporting the evidence of Miss Maloney and Mr John Edwards.  He directed the jury that the evidence of either accomplice could not corroborate the evidence of the other and later referred to the fact that each of the accomplices initially lied to the police.

In response to a point raised by the appellant's counsel when dealing with the onus of proof his Honour put the evidence - which I have referred to above - of accomplices on the same footing as the evidence of police officers and the appellant himself.

His Honour, in response to that request repeated the warning about accomplices in these terms.  "I mention to you that you had to scrutinise the evidence of all the witnesses carefully but most particularly you had to scrutinise the evidence of the two accomplices because they are, of course, under our system in a different category from either the accused or other police officers.  You have got to look at everybody's evidence carefully but you have got to look particularly carefully when they are an accomplice and particularly an accomplice who by incriminating someone else in their confession might gain or hope to gain, at some stage, some benefit with respect to the penalty that was imposed upon them."  (Record pages 352-353.)

The appellant before this Court in his list of cases referred to Robinson v. The Queen (1999) 170 Commonwealth Law Reports 162.  That case concerned a conviction of the offence of having unlawful anal intercourse with a child under the age of 12 years.  The complainant was eight at the time of the incident and made no complaint until three years later.

The High Court considered the impact of section 632 of the Criminal Code of Queensland which provides that a person may be convicted of an offence on uncorroborated testimony of one witness unless the Code expressly provides to the contrary and directed that a Judge is not required by any rule of law or practice to order a jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness.

In that case the High Court addressed the question of unreliability which would arise from matters personal to a witness or to circumstances of a particular case. 

In Robinson, in the judgment of the Court, the following passage appears:

"The law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.  However, as was held on Longland v. The Queen, 168 Commonwealth Law Reports 79 at page 86, in relation to a similar Western Australia provision, the subsection is not directed to such a general requirement.  Rather, it is aimed at a more specific rule by which the common law identified certain classes of case where the evidence was considered to suffer from intrinsic lack of reliability."

Well, there the classes are not closed, they include certain well-established categories.  Thus, in Kerr v. The Queen reference was made to:

"The rule which obliged the trial Judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence and the sworn evidence of a child."

In Robinson the case fell within two of those categories.  Moreover the complainant's evidence in that case was given by way of videotaped interview which was tendered in evidence. 

In this case the matter before the Court is quite different.  The evidence of each of the two accomplices is separately corroborated by independent evidence.  Each accomplice was vigorously cross-examined about prior inconsistent statements and about the circumstances in which their respective pleas of guilty resulted in a reduced sentence.

In this case also his Honour did warn, in clear terms, the need to scrutinise the evidence of Ms Maloney and Mr John Edwards on the basis that they were accomplices.  In all those circumstances there does not appear, in my view, any perceptible risk of a miscarriage of justice having occurred.  I would therefore dismiss the appeal.

McPHERSON JA:  I agree.

THOMAS JA:  I agree.

McPHERSON JA:  The appeal against conviction is dismissed.

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