R v Neale

[2004] NSWCCA 311

Reported Decision: 148 A Crim R 493

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Neale [2004] NSWCCA 311
HEARING DATE(S):	25 August 2004
JUDGMENT DATE:	10 September 2004
JUDGMENT OF:	Grove J at 1; Sully J at 2; Kirby J at 87
DECISION:	Appeal against conviction dismissed; Leave granted to appeal against sentence; Sentence passed on 15 November 2002 varied as to non-parole period; non-parole period reduced to period of 15 years to date from 9 December 2000 and to expire on 8 December 2015; Appeal against sentence otherwise dismissed
LEGISLATION CITED:	Evidence Act 1995 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	ITA 2003 139 A Crim R 340 Briginshaw and Briginshaw 1938 60 CLR at 362 R v Birks 1990 19 NSWLR 677 R v Twala CCA (unrep) 4 November 1994 R v Nai Poon [2003] NSWCCA 42 R v Holyoak 1985 82 A Crim R 502
PARTIES :	Regina James Linaker Neale
FILE NUMBER(S):	CCA 2002/2814
COUNSEL:	M. J. King - Crown J. S. Stratton SC/M. S. Pickin - Appellant
SOLICITORS:	C'wealth Director of Public Prosecutions - Crown Legal Aid Commission of NSW - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0869
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

2002/2814

GROVE J
SULLY J
KIRBY J

10 September 2004

REGINA v JAMES LINAKER NEALE

Judgment

1 GROVE J: I agree with Sully J.

2 SULLY J: On 26 November 2001 the appellant, Mr. James Linaker Neale, was presented for trial in the District Court before her Honour Judge Hock. He was so presented upon an indictment charging that between about July 2000 and 9 December 2000 at Sydney and elsewhere he had been knowingly concerned in the importation into Australia of a prohibited import, namely a quantity of the drug that is described conventionally as MDMA or Ecstasy, the quantity imported having been not less than the commercial quantity as prescribed by law for that particular drug.

3 The appellant pleaded not guilty and he was put accordingly upon his trial by jury. That trial continued until 17 December 2001, on which day the jury found the appellant guilty as charged. The appellant stood for sentence accordingly on 15 November 2002. Judge Hock sentenced the appellant to imprisonment for life and set a non-parole period of imprisonment for 21 years.

4 The head sentence thus passed upon the appellant by her Honour is the statutory maximum penalty applicable to the crime of which the appellant was found guilty by the jury. The quantity of MDMA/Ecstasy which is prescribed by law as a commercial quantity of that substance is 500 grams or more. The particular MDMA/Ecstasy in connection with which the appellant was tried and convicted was imported into Australia in the form of about 271,000 tablets having a gross weight of 105.54 kilograms; and a pure weight of 52.33 kilograms. The wholesale value of that consignment was estimated as lying somewhere between 2.7 million dollars and 5.4 million dollars.

5 A convenient overview of the relevant facts is contained in the following excerpts from Judge Hock’s remarks on sentence:

“In August 2000 the offender who was a resident of Hong Kong and who was running a business there importing wine, travelled to St Emilion, France and arranged for shipment of 940 cases of wine to be sent to Australia. Before it left the offender and others packed in excess of one hundred kilos of ecstasy tablets into the bottom half of twenty of the cases and they were then covered with wine bottles. Those 940 cases were sent by sea to Sydney arriving here on 22 November 2000 on board the container vessel, P & O Nedloyd Fremantle. The bill of lading for the container nominated the consignor as Lebegue and Cie, St Emilion, France. The consignee was named as James Neale, C/- a Sydney address. The shipping agent for the container was Clasquin Australia Pty Limited.
On 21 November 2000 the offender arrived in Sydney from Hong Kong. He was accompanied by his girlfriend who was apparently completely oblivious of the offender’s true reason for being in Australia. On 27 November 2000 Australian Customs Officers examined the container and discovered the tablets. The Australian Federal Police were notified and the container and its contents were seized. Their examination revealed approximately 105 kilograms of tablets concealed in the 20 cases of wine and the presumptive narcotic test conducted on the sample of the tablets indicated the presence of 3-4 methylenedioxymethylamphetamine, commonly known as MDMA or ecstasy. A controlled operation was then authorised and Australian Federal Police removed most of the tablets and replaced them with a substitute, leaving a controlled delivery sample in one of the cases.
At about 2 am on 28 November 2000 the container was returned to the depot and physical and electronic surveillance was maintained on it. That afternoon a container truck collected the container and delivered it to Oswalds, 1 Hale Street, Botany, New South Wales. On 30 November 2000 Oswalds unpacked the 940 cases of wine from the container and secured them in their bonded warehouse. Clasquin were then notified that the container had been unpacked and the wine was available for collection, subject to the customs duty being paid. The offender made arrangements for the clearance and storage of the wine. Once the offender’s interest in the wine became apparent he was kept under surveillance and his phone calls were monitored or intercepted.
On 5 December 2000 90 cases of the wine from the shipment, which had been cleared through customs, were delivered to Ansett International Airfreight, Botany Road, Banksmeadow. Bruce Anthony Ridgway, a co-offender, arrived in Australia from Hong Kong on 6 December 2000. On 7 December a further 50 cases of wine from the shipment had been cleared through Customs and were delivered to Ansett. Included among the 140 cases of wine then held at Ansett were the 20 cases of wine which had originally contained the ecstasy tablets. At about 8.52 pm the offender made a call from the public phone in the lobby of the Regent Hotel, George Street, Sydney to Ridgway and his side of the conversation was able to be recorded.
On 8 December 2000 the offender contacted Ansett International Airfreight and arranged for the 140 cases of wine to be transported by Ansett to Miller Wine Storage at Alexandria.
At about 11.48 am that day the offender used the same public phone to ring Ridgway who flew into Sydney at 4.10 that afternoon from Brisbane. The call was recorded, again capturing only the offender’s side of the conversation. About 5.15 pm the 140 cases of wine held at Ansett were delivered to Millers Wine Storage and at about 6.00 pm the offender attended and took possession of two of the wooden wine cases which contained the substituted tablets. He then took those cases to his room at the Regent Hotel, George Street, Sydney.
His hotel room was subject to video and audio surveillance. AFP officers observed the offender meeting Ridgway at the bar on the ground floor of the Regent Hotel at 8.15 that evening. Approximately an hour later the offender went to his hotel room, opened the wine cases and put some of the tablets into a brown leather brief case. He then joined Ridgway again in the bar. Later the offender returned to his room and placed the remaining packages of tablets in the brief case and then took it back to the bar and placed it on the ground between Ridgway and him. The video captured the offender’s actions in respect of the drugs in his hotel room.
At about 10.55 pm Ridgway took possession of the brief case and left the Regent Hotel. The offender followed and engaged in a further conversation with him just outside the main entrance of the hotel and then returned to the bar.
Ridgway entered a hire car, placing the brief case onto the rear passenger seat. A short time later he was arrested by members of the Australian Federal Police. Ridgway pleaded guilty to attempted possession of not less than a commercial quantity of ecstasy, namely the drugs in the brief case and he has been sentenced.
The offender was arrested in his hotel room in the early hours of 9 December 2000, declined to take part in a recorded interview and was charged. Documents found during a search of his hotel room clearly established that the offender was responsible for the importation of the container of wine.”

6 The substance of the Crown case as thus summarised was not disputed at trial by the appellant. The appellant’s stance at trial was, rather, that what he had done in connection with the importation of the MDMA/Ecstasy had been done by him under duress. He gave extensive evidence in that connection; and its substance was to the effect that persons previously unknown to him had, in effect, kidnapped him; and had taken him to a location at which they had informed him that they were collecting various debts owed by him. The appellant asserted that these people had threatened him that, unless he undertook to assist in the importation into this country of the MDMA/Ecstasy, he, his then girlfriend, and her daughter, would all be executed. According to the appellant he was originally told, and believed, that he was being pressured into assisting in the importation into this country of steroids and Viagra. The appellant said in his evidence that, after he had handed over the suitcase to Ridgway, he had entertained “grave suspicions” that the suitcase contained drugs.

7 In addition to raising at trial a defence of duress, the appellant contended that some, at least, of the material led in the Crown case against him, although open to an adverse construction, was in fact explicable by reference to a substantial cigarette-trading business in which he was engaged at the material times.

8 It is plain from the verdict of the jury that the jury rejected both the defence of duress and the cigarette-trading explanation.

9 The appellant now appeals against his conviction, and he applies also for leave to appeal against the sentence passed upon him.

10 The articulation of the grounds of appeal has had something of a checkered career in the present case. The actual presentation of the grounds of appeal has been similarly unusual in that learned senior counsel was briefed to argue the application for leave to appeal against sentence; learned junior counsel was briefed to appear to argue particular grounds of appeal against conviction; and the appellant himself made submissions in support of additional grounds of appeal against conviction.

11 On 20 October 2003 there was filed the original notice of grounds of appeal. Its contents have been superseded by later notices, and nothing further need be said about the details of the original notice.

12 On 11 May 2004 there was filed what amounts to a substituted notice of grounds of appeal. It contains six individual grounds of appeal against conviction and one ground supportive of the application for leave to appeal against sentence. Of the six grounds against conviction, those numbered 3, 5 and 6 were not pressed at the hearing before this Court. The other three grounds of appeal against conviction are expressed in the notice as follows:

“1. Her Honour erred in not rejecting the evidence part of Exhibit G being a telephone conversation between the appellant and a person identified as Raymond Chan namely, a conversation recorded on 7 December 2000 at 7.45 pm;
2. The above conversation being admitted into evidence, caused a miscarriage of justice due to the absence at trial of evidence of Raymond Chan;
…………………………………………………………………………..
4. Her Honour the learned trial judge misdirected the jury as to the persuasive onus applied to the element of duress.”

13 At the hearing before this Court the ground numbered 2 was by leave amended so as to read:

“2. The absence at trial of evidence of Raymond Chan caused a miscarriage of justice.”

14 The ground propounded in support of the application for leave to appeal against sentence is:

“7. Her Honour erred in sentencing the appellant as follows:
(i) Her Honour erred in finding that this was a worst case simply on the basis of the weight of the MDMA imported and the role of the appellant;
(ii) Her Honour erred in refusing to admit into evidence statements of Raymond Chan and Scott Paillas; and
(iii) The sentence imposed was manifestly excessive.”

15 On 24 August 2004, that is to say on the day before the hearing in this Court, there was filed in the Registry a document described as “Amended (Additional) Grounds of Appeal”. This document propounds the following additional grounds of appeal:

“1. A miscarriage of justice was caused by the absence at the trial of evidence as follows:
(i) Documentary banking records evincing a business relationship between Michael Bastion and the Appellant;
(ii) Evidence from a relevant officer as to the attendance by members of the Royal Hong Kong Police at the office’s (sic) of the Appellant in or about June 2000 in response to a telephone call made by the Appellant.
2. A miscarriage of justice was caused by inadequate counsel. In particular:
(i) Failure to object to the evidence adduced in the context of exhibit ‘G’ being the subject matter that gave rise to Ground One until 7 December 2001, being Day Ten of the trial, the evidence initially being adduced without objection on 26 November 2001, being Day One of the trial;
(ii) The evidence being admitted, the failure to take steps to adduce evidence from Raymond Chan;
(iii) Failure to seek a direction as to the limited use to be made of the evidence that gave rise to Ground Three;
(iv) Failure to seek a direction/re-direction pursuant to Ground Five and Ground Six.”

16 The simplest overview of these additional amended grounds of appeal is that they resurrect in part the grounds originally filed on 20 October 2003, the grounds thus resurrected not having been included in the substituted grounds of appeal filed on 11 May 2004.

17 Learned junior counsel appeared at the hearing before this Court in order to argue the conviction-related grounds numbered 1, 2 (as amended), and 4 in the notice filed on 11 May 2004; and the appellant in person put, essentially in the form of written submissions, his contentions in support of the amended and additional grounds of appeal notified by him in the document filed on 24 August 2004, the day preceding the hearing in this Court.

18 Given that state of procedural affairs, it will be convenient to consider first the grounds of appeal that were argued by learned junior counsel for the appellant; then to consider the additional conviction-related grounds as to which the appellant made submissions in person; and finally to consider the application for leave to appeal against sentence.

Ground 1: Grounds of Appeal as filed on 11 May 2004

19 On the first day of the appellant’s trial the Crown tendered an audio tape recording together with a transcript of its contents. There was no objection by experienced counsel then appearing for the appellant. The items were admitted accordingly and were marked respectively Exhibit G1 and Exhibit G2.

20 Exhibit G1, the audio tape, was a compilation of excerpts of various other so-called working tapes. These working tapes were tape recordings of the product of authorised listening devices which had recorded various telephone conversations to which the appellant had been a party. One such working tape was numbered 9. The various excerpts taken from working tape number 9 and included in Exhibit G1 were identified by individual item numbers. Item 8 of working tape number 9 was a recording of a telephone conversation between the appellant and somebody known only as “Raymond”. The conversation was recorded at 7.45 pm on 7 December 2001. The text of the conversation is, relevantly, as follows:

“(Talking on telephone) Hello? Hello? Yes. Raymond, how are you? Good. Still in Australia at the moment but we’re making good – yes. But making good progress. I will be able to speak to him tomorrow morning. Yeah. So, I can give you a call. Raymond, just one thing just if we have to stick to the one seventy price to begin with will that come down for the future after that? Right. What would the – like, what would it come down to at best? Okay. Okay. And the other thing is because you realise the reason we’re here is that we’ve got to and I’ll explain what we’ve actually done. There’s a lot of money got to be paid up front here. If we can get – can we come down to a twenty percent deposit possibly? Could you think about that for us? Right. Even twenty five? Well, I – is what? Right. Okay. I’ll explain more when we are face to face. We’re making good progress although it’s just taking a little bit longer than we would like but I will be in touch with Bruce tomorrow. I would think by Monday, maybe Tuesday and then – then it will be go, go, go if once you – you’ve got the agreed deposit going would – how – how long would that take you? Would it be very quick? What, available? Too long. Too long. Needs to be quicker. Yeah, yeah. Much faster because then we’re upon Christmas because it’s two weeks, then sailing isn’t it? Yeah. Well, one to begin with and then you’ll be getting regular orders of three. Okay. Well, anyway, just – that – that’s what – that’s what will be happening. So, you must start to phone accordingly. All right. One and then there will be up to three. But, anyway, let’s get the first thing going first. That’s the important thing but we’re making good progress here. Yeah. Okay. All right. Okay. Anyway, we’ll call as soon as we’ve got – everything is definite. They’re making good progress here and it’s very, very important that everything here is right. Okay. All right. Thank you. Thank you at all Okay. Bye for now.”

21 On the tenth day of the trial a point had been reached in the trial at which the Crown case had been concluded and the appellant was giving evidence in his own case. He had given evidence upon the conversation above recorded. He had said that the man “Raymond” was in fact Raymond Chan; and that the conversation was concerned, not with the importation into Australia of MDMA, but with the importation into Australia of a consignment of cigarettes.

22 In that context, and in anticipation of cross-examination upon the appellant’s evidence concerning Raymond Chan, counsel then appearing for the appellant applied to the trial Judge to withdraw from the consideration of the jury items 2 and 4 on working tape 6. In the course of the discussion upon that application, the appellant’s counsel at trial had this interchange with the Judge:

“My friend’s case is that the evidence given by the accused he was involved in trading in cigarettes is just nonsense and a lie. What can I say? That evidence at best in working tape 9 is completely ambiguous. There’s a name there, Raymond, he has given evidence about who he says that is. The Crown obviously doesn’t accept that and that becomes a matter of issue.
HER HONOUR: A matter for the jury ultimately. So ultimately on the issue that needs to be decided, the first issue, whether the Crown can cross-examine on item 8 working tape 9, there’s really nothing I need to rule on.
[COUNSEL]: No.
HER HONOUR: What I need to rule on is your application to withdraw those two items. Mr. Crown, do you want to say anything about …….(counsel’s) …….. application items 2 and 4;”

23 That particular argument was then further developed and resulted in a ruling which is not the subject of any present ground of appeal.

24 The upshot of what is thus recorded as having happened at the appellant’s trial is that Ground 1, as at present framed, is misconceived in that the trial Judge was never asked to exclude the evidence of the relevant conversation. Indeed, the trial Judge was told in terms by experienced counsel then representing the appellant that she was not required to rule upon the admissibility of that conversation.

25 The appellant’s counsel at trial has sworn a brief affidavit in connection with the present proceedings in this Court. The affidavit does not canvass the decision of counsel not to press for the exclusion of item 8 on working tape 9.

26 In those circumstances, it is relevant to have regard to what is said in the recent decision of this Court, (Ipp JA, Buddin and Shaw JJ) in ITA 2003 139 A Crim R 340. That decision breathes, if not perhaps new life then at least a fresh and much-needed resolve into the proper construction of, and the proper application of, Rule 4 of the Criminal Appeal Rules. Because this point arises in connection with various of the present grounds of appeal, it is useful to note the following statements taken from paragraphs 97 and 98 of the judgment of Ipp JA:

“It is disturbing that so often no account is taken of the clear warnings which have been given by this court. It is not unusual for appellants, without making any application for leave under r4, to proceed blithely to argue grounds that should have been raised by counsel at trial but were not. There is usually, as in this case, no explanation whatever for the omission to raise the perceived difficulties with the trial judge.
The existence of r4 and s99 imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold to the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported), Court of Criminal Appeal, NSW, number 60206 of 1994, Gleeson CJ, Mahoney and Dunford JJ, 18 July 1994 that: ‘it would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred’.”

27 I can see no reason in logic or principle why what is thus said about the duty to take legitimately available points arising from a summing up at trial, should not apply with equal force and resolve to the proper taking of points during the course of the trial. A fortiori where, as in the present particular case, the Judge is told in terms by experienced trial counsel that it is not necessary to have a ruling upon the admissibility of a particular item of evidence which is subsequently put in question by a ground of appeal to this Court.

28 On that basis alone, I would not uphold Ground 1. I would make, however, the following additional observations out of a consideration for the way in which Ground 1 was in fact argued before this Court.

29 It would seem to me that Ground 1, if it is to succeed, must succeed upon the basis of an argument framed broadly to the following effect:

[1] Evidence of the conversation was not admissible because it was not relevant in the sense contemplated by section 55 of the Evidence Act 1995 (NSW) .

[2] If, and in so far as evidence of the conversation was prima facie relevant and therefore prima facie admissible, the evidence should have been, nevertheless, excluded pursuant to section 137 of the Evidence Act .

[3] Had an application been made for the exclusion of the evidence, whether upon the basis of section 55 or upon the basis of section 137, or upon the basis of both of those sections in the alternative, then the only reasonable supposition is that such an application must have succeeded.

[4] The evidence was, therefore, wrongly admitted.

[5] The wrongful admission of that particular piece of evidence was itself productive of such manifestly unfair prejudice to the appellant that there was, in the terms of the Criminal Appeal Act , a substantial miscarriage of justice such that the ultimate conviction of the appellant should not be allowed to stand.

30 It seems to me that such an argument could not fairly be upheld by this Court in the absence of facts and circumstances so clear and cogent as to lead irresistibly to a conclusion that the appellant’s conviction is based, in a real and substantial sense, upon a miscarriage of justice.

31 I am wholly unpersuaded that such a case can be made out. The conversation now in point was not an isolated conversation. It was part of a skein of conversations which themselves formed but part of a larger circumstantial case upon which the Crown relied at trial. The thrust of that circumstantial case was two-fold. First, the thrust of the Crown case was that a realistic overview of what the appellant could be shown to have been saying and doing at relevant times was simply inconsistent, as a matter of sound common sense, with the principal defence of duress. Secondly, the Crown case was that a sensible overall view of what the appellant could be shown to have been saying and doing at relevant times was not consistent with the appellant’s proposition that, duress apart, he was engaged at the material times in a wholly legitimate commercial exercise having to do with the importation into this country not of MDMA but of cigarettes. It was relevant to the circumstantial Crown case that the reference in the conversation to “Bruce” was a reference to Bruce Ridgway.

32 In my opinion Ground 1 has not been established.

Ground 2: Grounds of Appeal as filed on 11 May 2004

33 The first obvious question to be asked in connection with this ground is why Raymond Chan, if his potential evidence was of such vital importance to the appellant’s case at trial, was not in fact called by the appellant as part of his case at trial.

34 In this connection, this Court has before it affidavit evidence of the appellant himself; affidavit evidence from the appellant’s counsel at trial; and evidence both on affidavit and oral from the appellant’s solicitor at trial. The Court has, as well, a lengthy affidavit purporting to have been sworn by Raymond Chan. The appellant’s solicitor at trial appeared before this Court on the hearing of the appeal, and was cross-examined by learned counsel for the Crown; but the appellant himself, his counsel at trial, and Raymond Chan were not cross-examined upon their respective affidavits.

35 The appellant’s own evidence is brief and to the point. He deposes:

“When the nature of my relationship with the man Raymond Chan was challenged by the Crown, the Crown asserting that there was no tobacco business and that we were discussing narcotics, I gave instructions to obtain a statement from him but was told by …. (counsel at trial for the appellant) ….. that we did not need a statement from him.”

This proposition is advanced in paragraph 16 of an affidavit sworn by the appellant on 3 October 2003 and is repeated in paragraph 18 of a later affidavit sworn by him on 11 March 2004.

36 On 30 July 2004 the appellant’s counsel at trial swore a brief affidavit in connection with the present appeal proceedings. The relevant parts of that affidavit read as follows:

“2. During the course of the Appellant’s trial, the Trial Judge, her Honour Judge Hock, admitted into evidence as Exhibit G2 a telephone conversation had between Mr. Neale and another unidentified person. …………………..
3. To the best of my recollection, the Appellant instructed me in the presence of my instructing solicitor, that the unidentified person in the conversation ………….. was a Mr. Raymond Chan.
4. I recall and verily believe it a fact that at the time of the Appellant’s trial, Mr. Chan lived overseas, possibly in Hong Kong, and that if Mr. Chan were to give evidence on behalf of the Defence, he would have to do so via video link as did a number of other witnesses.
5. I recall and verily believe it a fact that my instructing solicitor, …………….. attempted to contact Mr. Chan to give evidence on Mr. Neale’s behalf. I believe it also to be a fact that …………. (she) ……….. was unsuccessful in making contact with Mr. Chan.
6. I have seen paragraph 18 of the Appellant’s affidavit sworn on 11 March 2004 and filed in these proceedings. I do not recall having this conversation with the Appellant and am of the opinion that I would not have given advice to this effect.
7. To the best of my recollection, it was because of the inability to contact Mr. Chan that the decision was made to conduct the trial without the benefit of Mr. Chan’s evidence.”

37 The appellant’s solicitor at trial gave the following oral evidence to this Court:

“Q. Were you aware of Mr. Neale having his own ‘separate’ means of communication with persons in Hong Kong during the course of the trial or prior to the trial?
A. I was aware that he had a solicitor prior to myself being engaged, called Michael Tudori in Perth, who travelled to Hong Kong and made inquiries for him; and I received a report from him. I am not sure what you mean in terms of ‘separate means of communication’.
Q. Mr. Tudori was a solicitor practising in Perth, Western Australia?
A. That is what I understood.
Q. After Mr. Neale was arrested he was engaged by Mr. Neale to represent him?
A. I understand that.
Q. To your understanding Mr. Tudori travelled to Hong Kong to interview various potential witnesses in relation to Mr. Neale’s matter?
A. Yes.
Q. At some subsequent stage Mr. Tudori ceased acting and your firm commenced acting?
A. Correct.
Q. You said that you received a report from Mr. Tudori?
A. Yes.
Q. Did that include information as to any conference he had had with Raymond Chan?
A. No it did not.”

38 The solicitor had sworn an affidavit on 20 August 2004. In it she had deposed to having received prior to the trial instructions concerning Raymond Chan. The affidavit deposes to unsuccessful attempts made prior to the trial, and subsequently during the course of the trial, to get in touch with Raymond Chan.

39 In her oral evidence before this Court the solicitor explained that having had, between the date of her affidavit and the morning of her appearance before this Court, an opportunity of examining her relevant office file, she could not “…… say with any definition that I attempted to make contact with (Raymond Chan) prior to the trial”. She confirmed that she had made attempts during the course of the trial to make such contact with Raymond Chan; and although she did not say so in terms, I infer from what she did say that she does not depart from that part of her affidavit which explains that such attempts made during the course of the trial were fruitless.

40 The appellant relies in part upon an affidavit sworn on 19 March 2004 by Raymond Chan. The affidavit deposes to the fact that Raymond Chan and the appellant never discussed the importation of drugs into Australia; that the only relevant discussions they had, including the discussion in the conversation forming item 8 of working tape 9, were conversations concerned with a cigarette-importing enterprise then on foot; and that Bruce Ridgway, the person to whom the appellant had in fact handed over the controlled MDMA delivery earlier herein described, had been associated, also, in that particular cigarette-importing enterprise.

41 The affidavit does not explain when Raymond Chan first became aware that the appellant had been charged with having been knowingly concerned in a major importation of MDMA into Australia. The affidavit does not explain how or in what circumstances the deponent first became aware of that fact. The affidavit says nothing about the deponent’s place or places of residence, place or places of business, or relevant movements at the time of the trial or during the months immediately preceding the trial.

42 It is timely to note at the inception of any discussion of the present ground of appeal that it is for the appellant to make the ground good. In that connection I am of the opinion that the correct analysis of the available material is as follows.

43 First, there is a threshold inconsistency between the evidence of the appellant and the evidence of his counsel at trial, in that the appellant says that he gave instructions to his counsel that Raymond Chan should be called, whereas counsel cannot recall such a conversation. In addition, the appellant contends that counsel told him in terms that there was no need to get a statement from Raymond Chan; whereas counsel conveys, as I understand what he has actually said in his affidavit, that he did not give such advice.

44 Secondly, if the appellant is correct in what he says about his appreciation of Mr. Chan’s importance, and about his instructions that steps should be taken to obtain a statement from Mr. Chan with a view to calling him as a witness, then I do not see how it is open to the appellant to contend that the evidence of Mr. Chan, as it is now briefly outlined in the relevant affidavit evidence, is fresh evidence within the conventional legal understanding of that term. The appellant nowhere says that it came as a surprise to him to learn that the Crown was relying in part upon conversations between him and Raymond Chan; or that it came as a surprise to him to learn that the Crown was alleging, albeit incorrectly as the appellant would have it, that the substance of, in particular, the conversations constituting item 8 on working tape 9 was alleged by the Crown to be a discussion of an MDMA importation.

45 Thirdly, this Court is in no position to reach a properly informed view as to the cogency and the credibility of the evidence which it is supposed by the appellant that Mr. Chan would have given if called as a witness at the appellant’s trial; or would give in the future if called in the appellant’s case on any re-trial now ordered by this Court. All that the Court has from Raymond Chan is a brief affidavit. Its contents are wholly untested. The Court has neither seen nor heard Mr. Chan.

46 Fourthly, the present ground of appeal ought not lightly to be upheld. It is a serious thing to set aside a jury verdict regularly taken at the end of a lengthy trial in which the accused person was represented by experienced counsel. For such a step to be taken it is for the appellant to establish that there has been, in the requisite legal sense, a miscarriage of justice. In my opinion this Court should not make such a finding of miscarriage upon the basis of “inexact proofs, indefinite testimony or indirect references”, to borrow from Dixon J in Briginshaw and Briginshaw 1938 60 CLR at 362.

47 I would not uphold Ground 2.

Ground 4: Grounds of Appeal as filed on 11 May 2004

48 The learned trial Judge gave the jury the following oral direction:

“That is, essentially, the evidence in a shorthand way and the competing submissions which are no doubt fresh in your mind on that first aspect of whether the accused has proved beyond reasonable doubt that when the accused did those acts, the acts amounting to the importation, there is no reasonable possibility that he did so because of a threat, as I have identified, either to himself, Ms Graham or the child.” (emphasis added)

49 It is, I think, a fair inference from the overall tenor of the summing up that this was, if correctly recorded, an innocent slip on the part of her Honour, in that the highlighted words should have referred, not to the accused, but to the Crown.

50 It seems to me, however, that any suggestion of a resulting miscarriage of justice is effectively rebutted by the consideration that her Honour sent out with the jury careful written directions of law which are conceded to have been completely clear and correct. Her Honour asked in terms for any submissions from counsel as to relevant matters of law or fact, and neither the Crown Prosecutor nor the appellant’s counsel at trial sought any re-direction in what is now said to have been an obvious, and an obviously fatal, misdirection.

51 Once again, the observations earlier herein quoted from the judgment of Ipp JA in ITA are very much in point.

52 I would not uphold Ground 4.

Ground 1 (Amended Additional Ground filed 24 August 2004)

53 In his affidavit of 3 October 2003 the appellant explains as follows his relationship with the man named Michael Bastion:

“Michael Bastion was a private financial adviser/investor who I had met in mid-1999 and commenced a business venture with me involving the purchase of a container of Italian wine for sale and distribution in China. During that venture my business JNS Fine Wines received approximately $600,000 Hong Kong dollars by way of funds transfers and $50,000 HK in cash. Some of that money was repaid. About March 2000 Michael Bastion died in suspicious circumstances. I believed that Michael Bastion had been murdered and that it was highly likely that his murderers may also have been responsible for or connected with the men and organisation who had kidnapped, threatened and caused me to participate in the subsequent importations. That subjective view is made more plausible when my financial association with Mr. Bastion is demonstrated, something achieved by the production of the aforesaid banking records.”

54 In his subsequent affidavit of 11 March 2004 the appellant repeats the substance of this description of his relationship with Mr. Bastion. The appellant annexes to that later affidavit some 14 pages of banking records which were supplied by the Hong Kong & Shanghai Banking Corporation Limited under cover of a letter dated 27 October 2003 and addressed to Mr. Paul Hardin, a solicitor, of Hardinlaw at Bondi Junction. I have read what the appellant says in his affidavit as conveying the proposition that an examination of those bank records affords some corroboration, however general, of the substance of what the appellant is saying about his relationship with Michael Bastion.

55 I have done my best to read and to understand the contents of the banking documents. This has not been an easy task for the reason that the contents of the documents are largely illegible to me. I am not able to identify, and the affidavit evidence of the appellant does not itself identify, any particular item(s) to which reference might be made in order to test what the appellant has to say about the possible significance of these records.

56 The incident said to have occurred in or about June 2000 was described in graphic detail by the appellant in evidence that he gave, as follows, in-chief at his trial:

“Q. What happened please.
A. I came out of my office and it is a self-locking door and at the next room on the left is the gents and I went into the gents and as I did I noticed the lift arrive at the – on the 10th floor and three Chinese gentlemen came out of the lift and when they saw me they were shouting, yes shouting, and obviously were after me because they said ‘James stay there’.
Q. What language were they speaking?
A. When they said that they spoke English.
Q. What if anything happened after that please?
A. I went into the gents’ toilet immediately locked myself in and I made a 991 call to the police.
Q. Tell us what happened please.
A. I said to the police exactly where I was. I gave them my name and that I had what I thought was a Triad invasion in my office and I had three people after me.
Q. You use the word ‘Triad’. What do you mean by that?
A. It is a term that I use and the nearest equivalent I can give you is probably Chinese Mafia.
Q. What happened as you made that call? Did anything else happen at that stage or whatever the situation?
A. I made the call. They asked me several obviously important questions as to where I was and why I thought I was in danger et cetera and I said I was in the gents on the 10th floor and I was talking from my mobile which they asked me the number of.
Q. Did you provide that number?
A. Yes I did and they said that – I said I was very frightened and very concerned and that it was for real because --

Q. What happened afterwards?
A. The police arrived – oh, then everything went quiet so I came out and I put my head round the corner to look round the door and saw that they were right at the end of the passage way where the stair way went down. The lift is about halfway down the passage way and the stairwell is right at the end and they were down there and as soon as they saw my head going round, they came down the corridor and I locked myself in the gents again.
Q. Tell us how this situation developed please.
A. I heard them pushing the office door very hard trying I thought to break in and then probably two, maybe two minutes after this the police arrived and they disappeared straight away.
Q. What happened then please?
A. I came out and we all went into my office and there must have been about eight police officers there. There were a lot. In the meantime Stephanie came, the land lady’s agent, the land lord’s manager from the upstairs floor had come down and everybody was very concerned as to what had happened.
Q. Whilst you were in the gents, did you make any other call apart from to the police?
A. No.
Q. Did the police take any statement from you or write down information?
A. Of course they took notes down. I explained that I was in serious debt to people. They said, they wanted a description of the people.
Q. Did you provide that?
A. As best I could because, to be honest, I hadn’t got a very good description of them but I knew there were three, that they were Chinese and were acting in a very aggressive manner.
Q. How they were dressed?
A. Casually.
Q. What then happened please?
A. They said that they posted people around the building and they are making a thorough search for people. They were going to check the camera system if that was working and I suppose for about ten minutes later somebody came back to say that whoever it was had gone, had deserted the building and they did their best to actually calm me down because I was in a very, very frightened state, I was shaking.
Q. What then happened please?
A. Eventually everybody left and I was left in the office on my own. I remember shortly after that telephoning Trevor just as somebody to talk to because I was still very frightened.”

57 The “Trevor” referred to in that passage of evidence from the appellant was one Trevor Gregory, a sometime business associate of the appellant. Mr. Gregory gave evidence in the appellant’s case at trial, doing so on a video link from Hong Kong. His evidence, if accepted, corroborated the appellant’s description of the incident in or about June 2000.

58 It is for the appellant now to demonstrate that he has suffered a miscarriage of justice by reason of there not having been called at his trial evidence of the kind described in paragraph (ii) of Ground 1; and by reason of there not having been produced at his trial evidence of the kind described in paragraph (i) of Ground 1.

59 In the present particular case, I see no utility in an abstract theoretical discussion of whether the evidence to which the appellant now points is properly to be categorised as fresh evidence or as new evidence. On either approach it would be necessary for this Court to be persuaded by the appellant that there is a significant possibility that the jury at trial, acting reasonably, would have acquitted him had the additional evidence been before the jury at the trial.

60 I am unpersuaded that the appellant has demonstrated such a significant possibility. So far as concerns the evidence of the incident that occurred in or about June 2000, the fact is that the appellant gave to the jury in his own words a comprehensive description of what he says happened; and Trevor Gregory gave evidence capable of corroborating, at least to some extent, the appellant’s own evidence. It is not possible to say in a particular way what the jury made of that body of evidence; but the jury, obviously, did not consider that that evidence was fatal to an otherwise comprehensive, and in my own opinion strong, circumstantial Crown case.

61 As to the suggested business relationship with Michael Bastion, I cannot find in the 14 pages of bank records of which I have earlier herein spoken any material apt to raise a significant possibility of the relevant kind. There is, so far as I can see, no evidence otherwise that would identify other documentary banking records having such an apparent cogency as would establish a significant possibility of the relevant kind.

62 I would not uphold Ground 1.

Ground 2 (Amended Additional Ground filed 24 August 2004)

63 The relevant legal principles are not in doubt. They are summarised as follows in the judgment of Gleeson CJ in R v Birks 1990 19 NSWLR 677 at 685D-F:

“1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

64 That statement of principle summarises conclusions reached after a close analysis of relevant principle and precedent. The Chief Justice explains earlier in his judgment that:

“The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.”

65 The Chief Justice continues:

“It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.” (at 684E – F)

66 It is, once again, the onus of the appellant to bring his case within the stated principles and so as to demonstrate, in the sense discussed by Gleeson CJ, that there had been a miscarriage of justice. The onus thus cast upon the appellant is not an insubstantial one; and it is not to be discharged upon the basis of what has earlier herein been described as “inexact proofs, indefinite testimony, or indirect references”. As to the matters to which the appellant points in the paragraphs (i), (iii) and (iv) of the present ground of appeal, there is, so far as I can see, absolutely no evidence apt to carry the argument that the appellant now makes. The appellant’s counsel at trial said nothing about any of these matters in the brief affidavit which he swore in the appeal proceedings and to which I have earlier herein referred. The affidavit and the oral evidence of the appellant’s solicitor at trial is in exactly the same position.

67 As to the matter to which the appellant points in paragraph (ii) of the present ground of appeal, I cannot add usefully to what I have said earlier herein in connection with the putative evidence of Raymond Chan.

68 I would not uphold Ground 2.

Sentence

69 It is convenient to deal with this ground by discussing seriatim each of the three particular propositions that are stated in the relevant notice as the bases of the ground itself.

70 As to paragraph (i), it is convenient to begin by noting the following passages in her Honour’s remarks on sentence:

“There must be cases involving this drug which attract the maximum penalty because they fall within the worst case category. To so categorise a case it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime, as distinct from subjective features mitigating the penalty to be imposed. In Twala CCA (unrep.) 4 November 1994.
In my opinion the present case falls within that category for the following reasons: The enormous quantity of the drug that was imported, namely a hundred times the commercial quantity; the fact that the offender was a principal in what was a purely commercial major importation and the detailed planning and execution involved in committing the offence for which the offender was responsible.”

71 The attack made by the appellant upon this assessment by her Honour is conveniently and clearly summarised in the following excerpts from the written submissions of learned senior counsel who argued the sentence application on the appellant’s behalf:

“45. It is submitted that a number of factors, individually and in combination, took this case far from the ‘worst class of case’.
46. Firstly, the importation was of the drug ecstasy, a middle-range drug …… .
47. Secondly, the judge found that the appellant’s life had been threatened because he owed money. ……….. . Even in the context of her Honour’s finding that this did not cause the appellant to participate unwillingly in the importation, it is submitted that the proved threats must mitigate the appellant’s culpability.
48. Thirdly, although the appellant was sentenced after trial, ….. there was no challenge to the bulk of the Crown case and the only real issue in the trial was duress.

49. Fourthly, the appellant had no prior convictions for any sort of drug offence, albeit it is conceded he had some convictions for matters of dishonesty.

50. It is submitted that this case was not in the worst case category and that her Honour was in error in so categorising this case.”

72 First, the principles which her Honour drew from the decision in Twala are well entrenched. To be added to them is the proposition, which is trite, that a particular offence does not cease to qualify as a worst case example of the kind merely because human ingenuity can conjure up an even worse particular example.

73 Secondly, the bald proposition that MDMA is to be treated as “a middle range drug”, in the sense that it is to be accepted more or less as a matter of course that an MDMA-related offence is to be treated, as a proposition of law, as being less serious than a heroin or cocaine-related offence, is in my opinion wrong. The written submissions of learned senior counsel for the appellant point to a number of reported decisions which might appear to be supportive of counsel’s present submissions. I prefer to follow the approach taken by this Court, (Ipp JA, Hulme and Bell JJ), in R v Nai Poon [2003] NSWCCA 42. It is convenient to set out the following passages taken from the judgment of Ipp JA in that matter:

“16. It is plain from these authorities that in recent times there has been a recognition by courts in most parts of the country that the use of mid-range drugs causes great harm to the community and there is a need for sentences that have an effect of general deterrence. I would follow that approach.
17. Furthermore, following R v Efendi , I agree with Hulme J that a primary factor in determining the appropriate sentence will be the relevant statutory regime, and the sentencing tribunal will have due regard to the maximum penalty prescribed for the particular drug in question.
18. With respect to those who have expressed different views, I do not think that a person who commits a mid-range drug offence is entitled to a discount in comparison with the sentence that would be imposed for a similar offence, relating to heroin or cocaine, merely on the ground that a mid-range drug is a less harmful substance.
19. Where the maximum penalty for an offence involving one drug is the same as that for an offence involving another, it may be said in a very general sense that there is an equivalence between the two offences. But that will not be a particularly helpful observation as the quantities of the drugs involved will almost certainly differ, and the criminality to be attributed to the conduct involving a particular quantity of one drug will almost certainly differ from that involving a like quantity of the other drug. Accordingly, it will usually be futile to compare sentences imposed for one offence with another. In any event, I agree with Ormiston JA who observed in R v Spokes [1999] VSCA 210 that comparative exercises in sentencing are almost invariably misconceived, except when true issues of parity or lack of parity as between co-offenders require them to be conducted. The reason for this is, as his Honour said:
“The circumstances of each offence vary and, more importantly, the relevant personal circumstances, as defined by the courts, of the offenders vary so markedly that to compare one case with another throws up more questions than it answers.”
20. In conclusion, I do not think that Kirkham DCJ’s remark that “MDMA is equivalent to cocaine” was anything more than a passing observation carrying little significance. I come to this view as I consider, for the reasons expressed by Hulme J, that the sentence imposed was within his Honour’s discretion. In any event, in the very general sense that I have explained, the remark in question is correct.”

I am in complete and respectful agreement with what is there stated.

74 Thirdly, I would not accept the proposition advanced in the concluding words of the submission numbered 47. The relevant findings entail the willing participation by the appellant in the importation into this country of an enormous quantity of a prohibited drug. The appellant was not himself a person with any kind of drug addiction. His willing participation is explicable only upon the basis that he was seeking substantial financial gain which he plainly needed in order to pay off his accumulated debts. Those considerations, so far from mitigating the appellant’s criminal objective culpability, seem to me significantly to aggravate it.

75 Fourthly, it is not strictly correct to say that “the only real issue in the trial was duress”. The appellant raised a further issue of substance, namely the alleged existence of a cigarette-importing enterprise, his association with which explained circumstances otherwise apt to incriminate him, as alleged by the Crown, in the particular MDMA importation.

76 Fifthly, I do not accept the submission in paragraph 50 of the written submissions. Looking only at the matter from the point of view of objective criminality, the plain fact of the matter is that an amount of 500 grams of MDMA is the minimum amount prescribed by the Legislature as constituting a commercial quantity of MDMA. It is, putting the point another way, the trigger for the opening up of a range of sentence, the high point of which is a sentence of imprisonment for life. It could not be contended sensibly, in my opinion, that an MDMA-related offence concerning a quantity of 500 grams, or a trifling amount above that level, could attract, the most exceptional circumstances apart, a sentence of imprisonment for life. It must be, however, that the more a particular offence is removed, in terms of quantity, from the bare minimum of 500 grams, then the more apt the offence is to be characterised as a worst class of case of the kind; and the more apt, therefore, the offence becomes to attract the statutory maximum penalty. The deliberate importation into this country of an amount of MDMA that is one hundred times the prescribed minimum amount must constitute, as a matter of common sense as it seems to me, an offence which is well capable of being categorised as the worst class of case of its kind.

77 It cannot follow, of course, that such a conclusion entails the more or less automatic passing of the statutory maximum sentence of life imprisonment. Whether that should be the end result of the particular sentencing exercise must depend, of course, upon the proper bringing to account of relevant subjective matters. In the case of the appellant, the relevant subjective matters were canvassed, as I respectfully think, with all appropriate care and clarity by the learned sentencing Judge. Her Honour’s conclusion that it would be appropriate to pass upon the appellant the statutory maximum penalty as a head sentence, but to afford the appellant some mitigation of that sentence by the stipulating of an appropriate non-parole period, was an approach that was, in my respectful opinion, open to her Honour. It will be necessary to return to the matter of the non-parole period set by her Honour, and to consider whether or not some other and more lenient non-parole period is warranted in law: see section 6(3) of the Criminal Appeal Act. Before doing that, it is necessary to consider the second and third of the three stated propositions upon which the appellant’s present application rests.

78 As to paragraph (ii), the statements in question were tendered in the proceedings on sentence rather than during the trial proper. Each statement was marked for identification and has not been reproduced in the Appeal Books. Paragraphs 53 and 55 of the written submissions of learned senior counsel for the appellant contain a brief description of each statement. As to the statement of Raymond Chan, it is said that it “…… was to the effect that his conversations with the appellant were in relation to legitimate transactions involving cigarettes”. As to the statement from the former Federal Police Agent, its contents are described as having been directed “…….. to the methods used by triads”. Judge Hock rejected both tenders. Her Honour’s view was that it was simply too late to re-agitate in the proceedings on sentence matters that went, not to the mitigation of objective culpability or to the mitigation of sentence, but to the very different question whether there had been, in truth, any criminal culpability at all.

79 In my opinion, her Honour was correct in taking that approach to the two tenders.

80 As to paragraph (iii), I do not accept, for the reasons earlier herein explained, that the head sentence was manifestly excessive; and I would not disturb it.

81 As to the non-parole period set by her Honour, the appellant’s strongest point seems to me to be the submission that is set out in paragraph 7 of the written submissions of learned senior counsel for the appellant. That submission is:

“The appellant was born on 18 December 1945 and so is presently 57 years old. As the life expectancy of males living in Australia is 77 years old, it is likely that the result of the sentence imposed upon the appellant is that he will die in gaol.”

82 I have not found this an easy issue to resolve. Judge Hock does not advert to it in the way that is done in the appellant’s present submission; but I think it is unacceptably artificial to suppose that, because her Honour has not said anything in precise terms about the topic, she did not turn her mind to the realities involved in requiring an offender standing for sentence at the age of 57 years to serve in full-time custody a minimum period of 21 years.

83 I have had regard to the detailed analysis of the topic that was undertaken by Allen J in his Honour’s judgment in R v Holyoak 1985 82 A Crim R 502 at 507, 508. I am in respectful agreement with the points made by Allen J in that analysis. In Holyoak the Court, (Handley JA, Allen and Hulme JJ), was dealing with a number of offences of indecent assault by the there applicant of children under his care as supervisor of a particular institution for the care of children. Allen J’s particular conclusion in that context, very different as it is from the context of the present appellant’s case, was that the offences with which his Honour was dealing were “so objectively horrendous ………… particularly considering the breach of trust which (they) involved, that I find myself unable to say that, assuming that all other matters he took into account were appropriate to be so taken, the severity of the sentences imposed is indicative that his Honour failed to give due weight to the significance of the plaintiff’s age”.

84 If this Court affirms, as in my view it ought to do, the head sentence passed by her Honour upon the appellant, then in my opinion it is unnecessarily harsh to give the appellant the prospect of a non-parole period at all, and then to set the period at a level that will entail either that the appellant dies in prison, or that he has upon release at the age of 78 years little if any productive and useful life in prospect.

85 I have come to the conclusion, albeit not without some hesitation, that the implications of the non-parole period of 21 years set by Judge Hock justify a conclusion by this Court that there is latent error in that part of her Honour’s sentence. On that footing I would favour the substitution of a non-parole period to expire on 8 December 2015, which will be 10 days prior to the appellant’s 70th birthday. Assuming that the head sentence of life imprisonment is not disturbed, the appellant’s then release to parole would entail that for the remainder of his life he was subject to some proper parole supervision. I think that the combination of the head sentence of life imprisonment and of the reduced non-parole period which I now propose would be a just way of doing whatever is necessary in order fairly to punish and to deter the appellant himself; while the maintenance of the head sentence itself will do all that can be done in order to deter others who might be tempted to commit serious drug-related offences.

Orders

86 In my opinion the Court should make the following orders:

[1] That the appeal against conviction be dismissed.

[2] That leave be granted to appeal against sentence.

[3] That the sentence passed upon the appellant on 15 November 2002 be varied only as to the non-parole period then set; and so as to reduce that non-parole period to a period of 15 years to date from 9 December 2000 and to expire on 8 December 2015.

[4] That the appeal against sentence be, otherwise, dismissed.

87 KIRBY J: I agree with Sully J.

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Last Modified: 09/13/2004