R v Roberts
[2004] VSCA 1
•6 February 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN v. WERNER PAUL ROBERTS | No.297 of 2001 |
| THE QUEEN v. CARL HEINZE URBANEC | No.298 of 2001 |
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JUDGES: | BATT, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 10, 11, and 12 February, 26 August and 20 November 2003 | |
DATE OF JUDGMENT: | 6 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 1 | First Revision – 17 March 2004 |
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CRIMINAL LAW – Importing cocaine by one applicant and other’s being knowingly concerned therein – Recorded interview – Whether voluntary – Whether to be excluded in discretion on ground of unfairness or public policy – Whether inadmissible because earlier discussion with police not recorded – Whether that was part of “questioning” and applicant then “being interviewed as a suspect” – Whether police witnesses who denied alleged importer’s case but had before his trial been charged with drug offences committed subsequently to the importation might be cross-examined as to having been charged or as to their alleged offending conduct – Whether independent evidence of that conduct admissible as being, or tending to prove, a fact relevant to a fact in issue – Whether objection to answer on ground of privilege against self-incrimination might be taken in absence of jury and globally and proleptically – Whether any inference arose from claim of privilege – In any event proviso applicable – Whether pleas of guilty to some drug offences by the police witnesses after applicants’ trial and the conviction and sentencing of the former constituted fresh evidence showing the applicants’ convictions were a miscarriage in the sense that there was a significant possibility that jury would have acquitted if the evidence had been before it – Applications dismissed – Crimes Act 1914 (Cth), ss.23S, 23V(1) and (5); Evidence Act 1958, ss.26, 29, 149.
CRIMINAL LAW – Sentencing – Importing commercial quantity of cocaine – 13 years’ imprisonment with minimum of 10 – Being knowingly concerned in the importation – 9 years’ imprisonment with minimum of 6 – Disparity of neither sentence from co-offenders’ sentences such as to engender justifiable grievance – Neither sentence non-reflective of (moderated) adjustment for absence of remissions – Second sentence not manifestly excessive – Crimes Act 1914 (Cth), s.16G (rep.).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown (conviction applications) | Mr. O.P. Holdenson, Q.C., and Mr. R.T. Barry | Commonwealth Director of Public Prosecutions |
| For the Crown (sentence applications) | Mr. R.T. Barry | Commonwealth Director of Public Prosecutions |
For the Applicant Roberts | Mr. J.G. Traczyk | Mr. D. Morey |
| For the Applicant Urbanec | Mr. W.E. Stuart | Lewenberg & Lewenberg |
BATT, J.A.:
After these substantial applications had been reserved for some months, the Registrar was approached in June, initially by counsel for the applicant Urbanec, with a request that the court not proceed to judgment until an application could be made to add a ground of appeal relating to the police witness Stephen Paton, who had pleaded guilty on 11 June 2003 to two counts of drug trafficking and was about to be or had just been sentenced by Judge McInerney. The short vacation intervened and the preparation of the necessary papers, together with supplementary outlines (which the court required), took some time. Like applications by both applicants were in due course heard on 26 August, with the result stated later in these reasons.
The evidence on those applications indicated that it was very likely that another police witness, Malcolm Rosenes, would plead guilty to at least some drug charges. The court was, therefore, expecting a further application from each applicant. Rosenes in fact pleaded guilty on 2 October 2003 to seven counts of drug trafficking, conspiracy to traffic and drug possession and was sentenced on 24 October. In due course applications were at first foreshadowed and then filed on 10 and 13 November 2003. The same procedure, with the requirement for supplementary outlines, was adopted as had been adopted on the earlier applications, and the further applications were heard on 20 November 2003, again with the result stated later in these reasons.
THE APPLICANTS’ CONVICTIONS, SENTENCES AND GROUNDS
On 25 January 2001 an indictment/presentment was filed in the County Court at Melbourne against the applicants, Werner Paul Roberts (who was born on 14 February 1947) and Carl Heinze Urbanec (who was born on 26 July 1955), and also against Andrew Roderick Fraser and Andrea Christine Lucia Mohr, who was Roberts’ wife. The indictment/presentment contained ten counts. Counts 1, 2 and 4 related to Roberts. The first two counts were put as alternatives. Count 1, as amended during the trial, alleged that between 10 and 11 September 1999 at Melbourne and Sydney, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth), he imported prohibited goods, being narcotic goods consisting of not less than a commercial quantity of cocaine, and count 2 alleged that on 11 September 1999 at Melbourne, contrary to s.233B(1)(ca) of that Act, he had in his possession prohibited imports, namely, narcotic goods consisting of not less than a commercial quantity of cocaine, reasonably suspected of having been imported into Australia in contravention of the Act. Count 4 alleged that between 9 and 16 August 1999 at Melbourne, contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981, he trafficked in cocaine. Count 3 related to the other three accused and alleged that between 1 August and 11 September 1999 at Melbourne, contrary to s.233B(1)(d) of the Customs Act, they were knowingly concerned in the importation into Australia of prohibited goods, namely, narcotic goods consisting of not less than a commercial quantity of cocaine imported into Australia between 10 and 11 September 1999. That was the importation the subject of count 1. Counts 5, 6 and 7 related to Urbanec and alleged that between 17 August and 9 September 1999 at Melbourne, contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act, he trafficked in cocaine (count 5), that on 17 September 1999 at Elwood, contrary to s.73(1) of the last-mentioned Act, he had in his possession cocaine (count 6), and that at the last-mentioned date and place and contrary to the same provision, he had in his possession heroin (count 7). The last three counts (counts 8, 9 and 10) related to Fraser and alleged that between 1 January 1997 and 12 September 1999, contrary to s.71(1) of the last-mentioned Act, he trafficked in cocaine (count 8), that on 12 September 1999 at Melbourne, contrary to s.73(1) of that Act, he had in his possession cocaine (count 9) and that on the last-mentioned date at St. Kilda, contrary to the same provision, he had in his possession ecstasy (count 10). For the purposes of counts 1, 2 and 3 a commercial quantity of cocaine was two kilograms.
The maximum custodial penalty for the Commonwealth offences (those the subject of counts 1, 2 and 3) was imprisonment for life and that for trafficking (the subject of counts 4, 5 and 8) was imprisonment for 15 years. That for possession (counts 6, 7, 9 and 10) was, if the sentencer was satisfied on the balance of probabilities that the possession was not for any purpose related to trafficking, imprisonment for one year and otherwise imprisonment for five years.
The four accused were arraigned on 25 January 2001 and entered pleas of not guilty to all counts, except for Fraser, who entered pleas of guilty to counts 9 and 10 and not guilty to the remaining counts against him (counts 3 and 8). On 4 September 2001 Fraser was re-arraigned on the last-mentioned counts and entered pleas of guilty, and the prosecutor announced the entry of a nolle prosequi in relation to count 9. On 21 September 2001 Mohr was re-arraigned and pleaded guilty to count 3. Roberts was re-arraigned and pleaded not guilty to counts 1 and 2, but guilty to count 4; and Urbanec was re-arraigned and pleaded not guilty to count 3 but guilty to counts 5, 6 and 7.
The hearing concerning the four accused had in fact commenced on 27 August 2001. On that day a voir dire hearing commenced before the County Court judge in relation to the admissibility of certain evidence. That continued on 28, 29 and 30 August. On 10 September further preliminary issues were raised and a voir dire was conducted that day and on 11 September. Further preliminary issues were argued on 17, 18, 19, 21, 24 and 25 September 2001 and eventually, on 25 September, a jury was empanelled, Roberts having been re-arraigned and pleaded not guilty to counts 1 and 2 and guilty to count 4 and Urbanec having been re-arraigned and pleaded not guilty to count 3 and guilty to counts 5, 6 and 7.
The trial of the applicants on the counts to which they had pleaded not guilty commenced on 26 September. The Crown case closed on 16 October. On 17, 18 and 19 October Roberts gave evidence. Urbanec neither gave nor called evidence. Counsel gave their closing addresses on 19 and 22 October and his Honour’s charge was given on 22 and 23 October. The jury retired at about 11 a.m. on 23 October to consider its verdicts and at approximately noon the following day delivered verdicts of guilty against Roberts on count 1 (importation of cocaine) and against Urbanec on count 3 (being knowingly concerned in the importation of cocaine). Count 2 being an alternative to count 1, no verdict was taken on it.
On 2 November 2001 a plea in mitigation of penalty was made on behalf of Urbanec. He admitted five previous convictions from four court appearances in Germany, the relevant one being a conviction on 9 March 1982 of illegal dealing in narcotics for which he was given a sentence of imprisonment for two years and probation for four years, which was explained to his Honour as being effectively a two-year term wholly suspended for four years. Pleas in mitigation of penalty on behalf of the other prisoners were heard on 15 and 16 November. Roberts admitted having been previously convicted in 1991 of the cultivation of a narcotic plant, possession of a drug of dependence and using a drug of dependence, for which he received relatively small fines.
On 3 December 2001 his Honour sentenced the prisoners as follows:
Roberts:
To 13 years’ imprisonment on count 1 (importation of cocaine) with a non-parole period of 10 years and to 1 year’s imprisonment on count 4 (trafficking in cocaine), both terms to commence that day, so that the total effective sentence was 13 years’ imprisonment with a minimum term of 10 years, the period of 814 days being declared to be reckoned as already served under the sentence.Urbanec:
To 9 years’ imprisonment on count 3 (being knowingly concerned in the importation of cocaine) with a non-parole period of 6 years, to 1 year’s imprisonment on count 5 (trafficking in cocaine), to 6 months’ imprisonment on count 6 (possessing cocaine) and to 3 months’ imprisonment on count 7 (possessing heroin), all the sentences to commence that day, so that the total effective sentence was 9 years with a minimum term of 6 years, the period of 808 days being declared to be reckoned as already served under the sentence.
Mohr:
To 8 years’ imprisonment on count 3 (being knowingly concerned in the importation of cocaine) with a non-parole period of 5 years, the period of 814 days being declared to be reckoned as already served.
Fraser:
To 6 years’ imprisonment on count 3 (being knowingly concerned in the importation of cocaine) with a non-parole period of 4 years, to 3 years’ imprisonment on count 8 (trafficking in cocaine) with a non-parole period of 2 years and to 3 months’ imprisonment on count 10 (possession of ecstasy), the sentence in respect of count 8 to commence that day and the sentence in respect of count 3 to commence immediately at the expiration of one year from that day, so that the total effective sentence was 7 years with a minimum term of 5 years[1], the period of 19 days being declared to be reckoned as already served under the sentence. His Honour stated pursuant to s.21E of the Crimes Act 1914 (Cth) that because of Fraser’s undertaking to cooperate with law enforcement agencies in the future he had reduced his sentence in respect of count 3 and that otherwise it would have been 7 years with a non-parole period of 5 years.
[1]The 3 months’ sentence on count 10 would presumably be served concurrently with the sentence on count 8 by operation of law: Sentencing Act 1991, s.16(1). The State offences were not “drug offences” and so not “relevant offences” for the purposes of Part 2A of that Act.
On 13 December 2001 each of Roberts and Urbanec gave notice of applications for leave to appeal against conviction and for leave to appeal against sentence. Mohr and Fraser have applied for leave to appeal against sentence, but their applications are not before the court.
In the case of Roberts the grounds of proposed appeal stated in the notice relating to conviction are:
1.The learned trial Judge erred in admitting evidence of the record of interview between the Applicant and the Police conducted on 16 November, 1999.
2.The learned trial Judge erred in admitting evidence of the statement made by the Applicant to the Police on 18 November, 1999.
3.The learned trial Judge erred in ruling as inadmissible any evidence relating to or questions concerning criminal charges laid against the prosecution witnesses Malcolm Rosenes and Stephen Paton.
4.The learned trial Judge erred in upholding a claim of privilege against self-incrimination made by the prosecution witnesses Malcolm Rosenes and Stephen Paton in the absence of a jury.
5.The learned trial Judge erred in ruling that documents which the defence had sought pursuant to subpoena issued 17 September, 2000 were privileged from disclosure to the defence
6.The decision by the learned Crown prosecutor to call and adduce positive evidence from the witnesses Malcolm Rosenes and Stephen Paton led to a miscarriage of justice.
On 4 February 2003 the Registrar gave leave to add a further ground, which (as amended by this court on 10 February 2003) reads:
7.The refusal to order a stay amounted to a miscarriage of justice.
On 26 August and 20 November 2003 this court gave leave to add the following two grounds respectively (omitting a transcript reference):
8.The conviction of the applicant on Count 1 of the Indictment was unsafe and unsatisfactory by reason of the conviction of Stephen Paton and the facts referred to in the affidavit of Douglas Morey sworn 15 August 2003 (other than paragraphs 16 and 17 thereof) and Exhibit C thereto.
9.The conviction of the applicant on Count 1[2] of the Indictment was unsafe and unsatisfactory having regard to fresh evidence relating to Malcolm Rosenes, a witness called by the prosecution, namely his conviction in the County Court at Melbourne on numerous counts of trafficking in drugs of dependence and the aggregate sentence of 6½ years’ imprisonment[3] with a minimum period of 3½ years to be served before being eligible for parole imposed by his Honour Judge McInerney on 24 October 2003.
[2]Leave was actually given to add the ground that was stated in the notice filed on behalf of the applicant Roberts, which referred to count 3; but that was obviously a slip from a slavish copying of Urbanec’s corresponding notice.
[3]In fact the total effective sentence was 6 years and 3 months.
In the case of Roberts the grounds of proposed appeal stated in the notice relating to sentence are:
1.The learned trial Judge erred by failing to have proper regard to the principles of parity having particular regard to the sentences imposed on Andrea Mohr and Andrew Fraser.
2.The learned trial Judge erred by imposing a sentence which did not properly reflect the adjustment required by s.16G of the Crimes Act 1914 (Cth).
In the case of Urbanec the grounds of proposed appeal stated in the notice relating to conviction are:[4]
[4]Omitting the helpful transcript references to rulings, discussion and evidence.
1. The learned trial Judged erred by:
(a)not allowing the jury to hear the Crown witnesses Malcolm Rosenes and Stephen Paton claim privilege against self-incrimination in relation to allegations of their corrupt dealings in narcotics whilst serving police officers;
(b)allowing, in the absence of the jury, those witnesses to claim privilege against self-incrimination in relation to those dealings;
(c)ruling, in the absence of the jury, that the witnesses were entitled [to] claim privilege against self-incrimination;
(d)prohibiting disclosure to the jury that the witnesses claimed privilege against self-incrimination in the absence of the jury.
2.The learned trial Judge erred by prohibiting cross-examination of the Crown witnesses Malcolm Rosenes and Stephen Paton about any aspect of their corrupt dealings in narcotics whilst serving police officers.
3.The learned trial Judge erred by prohibiting proof of the corrupt dealings in narcotics by the Crown witnesses Malcolm Rosenes and Stephen Paton whilst serving police officers.
4.The conviction of the applicant was unsafe and unsatisfactory in the circumstances referred to in grounds 1, 2 and 3.
On 26 August and 20 November 2003 this court gave leave to add the following two grounds respectively (omitting transcript references):
5.The conviction of the Applicant on Count 3 of the Indictment was unsafe and unsatisfactory having regard to fresh evidence relating to Stephen Paton, a witness called by the prosecution, namely:
(a)The matters referred to in Stephen Paton’s sworn statement dated 10 March 2003, and
(b)Stephen Paton’s conviction in the County Court at Melbourne on two counts of trafficking in commercial quantities of drugs of dependence and the aggregate sentence of 6 years’ imprisonment with a minimum period of 3 years to be served before being eligible for parole imposed by his Honour Judge McInerney on 20 June 2003.
6.The conviction of the Applicant on Count 3 of the Indictment was unsafe and unsatisfactory having regard to fresh evidence relating to Malcolm Rosenes, a witness called by the prosecution, namely his conviction in the County Court at Melbourne on numerous counts of trafficking in drugs of dependence and the aggregate sentence of 6¼ years’ imprisonment with a minimum period of 3½ years to be served before being eligible for parole imposed by his Honour Judge McInerney on 24 October 2003.
In the case of Urbanec the notice relating to sentence states the following grounds of the proposed appeal:
1.The learned sentencing Judge erred in sentencing the applicant on Count 3 by failing to have proper regard to the principles of parity of sentencing having particular regard to the sentence imposed on Andrea Mohr on that Count.
2.The learned sentencing Judge erred by imposing a sentence on Count 3 which did not reflect the adjustment required by s.16G of the Crimes Act 1914 (Cth).
3.The learned sentencing Judge erred by imposing a sentence which was, in all the circumstances, manifestly excessive.
The Crown case at trial
Before the various grounds can be considered, it is necessary to outline the case presented by the Crown to the jury and the defence cases. The following summary of the Crown case is based on his Honour’s sentencing remarks, supplemented by reference to Roberts’ visit to Fraser on 16 August 1999, to telephone calls to and from Benin, to events after the return of Roberts and one Carol Brand to Australia and to Brand’s evidence at trial.[5] The Crown contended that on 10 September 1999 Roberts imported into Australia in eight ornamental plaques 5.5 kilograms of powder containing 3.7 kilograms of pure cocaine having a street value of between $1.35 to $2.7 million or, if sold in bulk, a value of between $970,000 and $1.36 million approximately. On the Crown case, Roberts was not a mere courier, but the principal in the scheme and the leading actor in it. Roberts had previously flown to the West African state of Benin to obtain the cocaine. His wife, Andrea Mohr, and his friend Urbanec had been to Benin on an earlier occasion and had met a person named Raphael, who made known to them that he had access to large quantities of cocaine, apparently of high quality, which were available for purchase. On their return to Australia, Mohr and Urbanec told Roberts about this and eventually he decided to fly to Benin to purchase cocaine, first spending two weeks’ holiday in Europe. He took with him an ex-girlfriend, Carol Brand. He took her at his own expense and for the purposes of using her to give a certain innocent appearance to his trip and of using her, as necessary, to help carry the cocaine through Customs. She knew nothing of his purposes and nothing of the cocaine, and, if and in so far as she carried any plaques containing cocaine, she did so unknowingly and innocently. Roberts and Brand left Australia on 17 August, 1999.
[5]So far as one or two facts stated may not be relevant to issues at the trial, they are relevant to the sentences imposed on the applicants, either directly or indirectly by reason of the parity grounds.
Both Mohr and Urbanec knew of the purpose of Roberts’ visit to Benin, the Crown contended, and were knowingly concerned in the importation, particularly in the respects about to be stated. With the assistance of his wife, who was in frequent contact by telephone with Benin, Roberts met, not Raphael, who was absent at the time, but a certain Cornelius, who stood in for him. It was Cornelius who, on the Crown case, supplied the cocaine to Roberts. He, Roberts, received considerable support and assistance from Mohr during his time in Benin and especially in the regard just mentioned. He received some, but less, assistance and support from Urbanec, including the transmission of $900, urgently required by Roberts, to Benin.
Amongst the telephone calls the Crown proved Mohr and Urbanec made to and received from Benin were the following, to many of which Roberts was directly a party. On 30 August 1999 Mohr called Benin and spoke to a person she knew named Cornelius, telling him that her husband was arriving that night and that she and Kalle (that is, Urbanec) had been in Benin previously. On 30 August Roberts by telephone gave Mohr details of the hotel in Benin where he was staying, the Hotel du Port. He asked for the phone number of a person named Raphael and Mohr told him it was Cornelius and gave the latter’s number to him. Mohr told Roberts that all would be prepared at 9 a.m. the next day and he could pick up the “presents”. In a conversation of 1 September Roberts told Mohr that he was waiting for Cornelius. On 4 September Cornelius asked Mohr to send money. She indicated it would be via Western Union. He gave her the details of Roberts’ changed return airline bookings. There were references to “presents” in the conversation. On 6 September Roberts asked Mohr why she had sent only $2,500 Australian. He said that Cornelius had rung her and asked for $3,000 American. He was about $500 Australian short. Mohr said that she would send that sum the next day. On 7 September Urbanec told Roberts that he had sent the money in his name and told him to bring back a few figurines. Roberts said everything was organised. Urbanec said to make sure “they” were varnished, otherwise they would make trouble in Australia. Roberts said that he had considered all that. Early on 8 September Roberts said to Mohr that he was waiting for Cornelius and that he was two hours late. He wanted souvenirs from Cornelius so that he could pack. Mohr told him to pack them on top. He rang three hours later, saying that it was half an hour after the meeting time fixed with Cornelius and he had not heard: it all looked very suspicious. Mohr then rang Cornelius and told him that Roberts was waiting at the hotel and was leaving the next day. Twelve hours later, still on 8 September, Roberts left a message on Mohr’s answering machine that he was to leave in one hour and that none of the boys was there. He did not know what to do. Three hours later he told her that everything was OK. He was waiting for the taxi driver. Everything was packed. He said that “they” had sewn that stuff together in a hurry and the varnish was not properly dry. He said that he had divided it all up. Early on 9 September Mohr spoke to Cornelius, who told her that Roberts had left at 5 a.m. and that there were eight “presents”.
The other person who knew the purpose of Roberts’ visit to Benin and was knowingly concerned in the importation was Fraser, a prominent Melbourne solicitor practising particularly in the area of criminal law. He provided advice, encouragement and the offer of legal services if Roberts should need them. In particular, on 16 August 1999 Roberts visited Fraser in his office in Lonsdale Street, Melbourne, and amongst other things, in a conversation monitored by Victoria Police and recorded pursuant to a lawful warrant, they had a discussion concerning the proposed purchase of cocaine overseas and the importation of it into Australia. In the course of the discussion Fraser gave Roberts advice as to what he should do on re-entering Australia. (That conversation of course bore on Roberts’ guilt as well as Fraser’s.) Fraser was at the time a heavy user of cocaine. The other three accused had for some time been one of his sources of cocaine and during Roberts’ absence overseas Mohr and Urbanec continued to supply him.[6] It was this past and continuing supply and use of cocaine that explained the participation of Fraser.
[6]Mohr was not, however, presented on a count of trafficking in cocaine.
Amongst the conversations the applicants and their co-accused were proved to have been party to in Australia the following are significant. On 10 September there were various conversations between Fraser and Mohr as to whether she had heard from Roberts and when he was arriving. At 8.03 p.m. Roberts told Fraser by telephone that “the eagle has landed” and said that he would talk to him in the next two or three days. Roberts had telephoned Mohr immediately before that to tell her also that “the eagle landed”. Four minutes after the call to Fraser Urbanec telephoned Fraser to say that Roberts had just arrived and everything was fine. At 6.46 p.m. on 11 September Roberts rang Urbanec to say that he was in Brighton Road and should be “there”, meaning at his and Mohr’s flat (which was at the Elwood address mentioned below), in ten minutes.
The reason for importing the cocaine was to provide a stock of it which Roberts, Mohr and Urbanec would have available for a number of purposes, namely, to a small extent, for their own use; to supply Fraser for profit; and, judging by the quantity and value of it, to sell on a wider market for profit. Although Roberts, Mohr and Urbanec used cocaine none was addicted to it in any relevant sense.
The evidence from the time of the arrival of Roberts and Brand in Australia that was led by the Crown showed the following. On Friday 10 September shortly after 7 p.m. Roberts and Brand arrived in Sydney on board a South African Airways flight from Johannesberg. They passed through Customs and presented themselves to the quarantine barrier, saying that they had “wooden carvings” and on request produced two small black wooden carvings from a plastic bag. As these did not pose a quarantine risk they were allowed to go. They hired a Budget rental car. From the time of their arrival in Sydney they were under surveillance by members of the Australian Federal Police (“AFP”) and the Victoria Police. They drove to the El Toro Motel in Liverpool (also referred to as being at Warwick Farm) and checked out at 5.25 a.m. the following morning. Their car was kept under surveillance at the motel by the Victoria Police Crimes Surveillance Unit until 4 a.m., when the police moved out of the motel car park to a street. A tracking device had been installed in the car and at about 4.30 a.m. it started beeping loudly, possibly indicating movement. Three or four minutes later a surveillance officer walked through the car park and there was no-one in the vicinity of the car. On his return to his car the beeping had stopped.
At 2.02 p.m. on 11 September the rental car reached the flats at 59 Alma Road St. Kilda. Roberts and Brand went into Unit 11, Brand’s home address, carrying various items of baggage. At 2.13 p.m. Roberts purchased a chisel, claw hammer, safety locking knife and a roll of packaging tape from a hardware shop in Barclay Street, St. Kilda, and then returned to Unit 11. Roberts left a little before 7 p.m. and drove to Flat 4/6-8 Greig Court, Elwood, the premises where he resided with Mohr. A listening device installed in the flat recorded a conversation between Mohr, Urbanec and Fraser. There was discussion and some confusion about Roberts’ exact whereabouts. The listening device also recorded a conversation between Mohr and Roberts after the latter’s arrival home. There was argument between them during which there was a reference to “Cornelius”. During the continuation of the conversation Roberts said, “It is 5.55”, meaning, the Crown alleged, 5.5 kilograms of powder containing cocaine. Mohr said, “They are eight presents”. She referred to there having been seven last time. Roberts said, “But Cornelio did it that way”, and Mohr said that it was not very good.
At 9.46 p.m. on 11 September members of the AFP and Victoria Police (including Detective Senior Constable Firth and Detective Senior Sergeant Strawhorn, both attached to the Drug Squad) executed a search warrant at Flat 4/6-8 Greig Court. On opening the boot of the rental car police found a small black suitcase and eight A4-size wooden wall plaques. One of the plaques appeared to be opened as it had two pieces of brown tape at one end. Police found a hardware shopping bag containing a hammer, chisel, knife and roll of brown packing tape. The plaques were found on examination to be rectangular in shape and lacquered, with African motifs on their front. One of them appeared to have been cracked open and was found to contain a bag of white powder. A presumptive test found it to consist of cocaine. Roberts was placed under arrest.
In the following days each of the eight plaques was dismantled and found to contain a bag with white powder. The total weight of the powder seized was 5437.2 grams. Subsequent chemical analysis confirmed it to be approximately 65 per cent pure cocaine, making the quantity of cocaine seized 3695 grams. Expert evidence was given by a “profiling chemist” with the Australian Government Analytical Laboratories that some 150 cocaine samples seized by the AFP in the then past five years had all had a foreign origin, most from South America. Those samples did not fit the profile for regions other than South America or the profile of synthetised cocaine. It was most unlikely that cocaine would be produced in clandestine laboratories in Australia because of the skills and amount of expenditure required and the difficulty of doing so. Other expert evidence was given that the various woods used in the construction of the eight plaques were consistent with their having come from trees which principally grow in northern and western (that is, “the hump” of) Africa.
Carol Brand was a prosecution witness. She gave evidence of her trip to Benin with Roberts. Amongst other things she stated the following. Roberts introduced her to a man by the name of Cornelius. On the day they were due to leave Benin to return to Australia Cornelius came to their hotel room. He had some souvenirs for her which were in two woven bags. He showed her a wooden sculpture from one bag. She then saw in the other bag something flat and black which had on it a map or postcard of Benin. She only saw half of the object. It was flat, relatively thick and made of some sort of timber. It was 9 to 11 inches long. That item was similar to something she was shown by Roberts when she arrived at her flat in Melbourne. He showed it to her from the open boot of the car, telling her that he had decided he wanted some of the souvenirs to give to friends. She found that strange as he had not indicated that previously. She was shown Exhibit A, the plaque which was found by the police to have been opened, and said, “Well, it could be what I believe I saw in Benin. It certainly had similar characteristics.... It seems to be the same size, as I recollect, and the same thickness.” In Benin Roberts finalised the packing of the suitcases. When they stopped at the El Toro Motel they only took overnight bags into the room. No-one came to the room to her knowledge. At 4 a.m. she woke and saw in the room the luggage they had left in the car and Roberts was zipping it up. They had a fight over why he woke her up so early. Roberts took off and returned about 20 minutes later. They then drove to her flat in Melbourne. There Roberts helped unpack the luggage. That was when she saw the object similar to Exhibit A. It was not in a woven bag or luggage. It was possibly in a plastic bag. All of the luggage was taken inside. Roberts then left for 15 minutes and when he returned he had s small amount of cocaine with him.
The Crown contended that Roberts had admitted his importation of the cocaine in a recorded interview conducted on 16 November 1999 and also, after the Crown had been allowed to tender the statement in rebuttal of suggestions in cross-examination by Roberts’ counsel and after notes of the conversation had been cross-examined into evidence by Roberts’ counsel[7], in a 17-page statement made by him which he signed on 18 November 1999 and in a conversation with police on 15 November 1999. It will be necessary later to state the circumstances in which the record of interview occurred and the statement was made.
[7]The Crown did not seek to lead evidence of the conversation as it was “off the record”.
As regards Urbanec the Crown contended amongst other things that the answers he gave when interviewed proved that he was knowingly concerned in the importation by Roberts of cocaine. On 17 September 1999 Urbanec was arrested. He was formally interviewed at AFP headquarters commencing late that day. He admitted having travelled to Benin in May 1999 with Mohr, who was a friend. He said that he became aware in Benin of the availability of cocaine through a Spanish-speaking Columbian named Raphael at the Hotel du Port. Raphael gave a telephone number which he or Mohr wrote down. Urbanec said Roberts travelled to Benin subsequently and his understanding was that Roberts went there to buy cocaine and bring it back to Australia. Roberts told him this two weeks prior to his departure. He said that he knew Roberts planned to travel with Brand and that Brand had no knowledge of the plan to purchase and import cocaine into Australia. He and Mohr had told Roberts about Raphael’s ability to obtain cocaine. Urbanec said that when Roberts returned from his overseas trip and arrived at Greig Court he (Urbanec) was present and Roberts said, “I made it”, meaning that he had managed to get some cocaine. Urbanec said that he spoke to Roberts on the phone a few times while he was overseas. On one occasion, at Mohr’s insistence, he tried to convince Roberts that there was nothing to fear by taking a domestic flight when carrying cocaine if he had already passed through Customs after landing on an international flight. Urbanec displayed awareness of telephone conversations that had occurred between Mohr in Australia and Roberts in Benin. More importantly, he said that two or three days before Roberts returned he had sent Roberts $A900 via Western Union in Benin. Roberts had told Urbanec before his departure that he had arranged for Fraser to be available for him to contact in the event of any trouble with Customs. Urbanec agreed that he had at Mohr’s request rung Fraser to tell him that Roberts was back and everything was fine in the sense that Roberts had gone through Customs successfully without any problems arising from his having cocaine with him.
The defence cases at trial
It is trite law that the applicants did not have to prove anything at their trial, but the course of argument on their applications necessitates a fairly brief statement of the case made for each of them at trial. Roberts’ case, in support of which he gave evidence, was that, although he pretended to Mohr and Fraser (and, it would seem, to Urbanec) that he was going overseas to acquire drugs, he did not purchase any cocaine in Benin or import any cocaine into Australia. Rather, the cocaine in question was delivered to him at the El Toro Motel for the purpose of falsely implicating Fraser in the importation of a large quantity of cocaine, only for him, Roberts, to find that the member of the police force whom he had arranged to assist in this, Malcolm Rosenes, reneged on the arrangement, so that in effect the cocaine proved to have been “planted”[8] on him. Urbanec’s case was two-fold. First, he adopted Roberts’ case that he, Roberts, had not imported any cocaine, so that he could not be knowingly concerned in its importation: R. v. Toubya[9]. Secondly, if that was rejected, whilst he knew of Roberts’ intention to purchase cocaine in Benin and to import it into Australia, he did not assist the importation and was not otherwise concerned in it: R. v. Tannous[10].
[8]In this case the colloquial use of this word does not have the connotation of concealment, for, according to Roberts’ evidence (at T1558), he went with the person who called at his motel room to the rental car and placed the two paper bags in the car boot. In other words, the putative planting was leaving the cocaine with him in order that it might be discovered in his possession.
[9][1993] 1 V.R. 226.
[10](1989) 10 N.S.W.L.R. 305.
Roberts’ evidence was quite lengthy, but the essence of it was as follows. In about June 1999 a policeman, who proved to be Rosenes of the Drug Squad, accosted him as he was coming out of Fraser’s office. Finding a few grams of cocaine in Roberts’ possession, Rosenes threatened or induced him to agree to assist Rosenes to “get Fraser” for a major crime. After various other instructions at meetings and by telephone, Roberts was instructed by Rosenes to tell Fraser that he would go to Africa at his own expense and bring back half a kilogram to one kilogram of cocaine and to try and enlist Fraser’s help to sell that amount quickly. This he did. Fraser responded positively. Rosenes agreed to Roberts’ taking Brand with him. He gave Roberts $8,000 for the air tickets and a further $12,000. He said he would give Roberts the cocaine upon his return. Roberts and Brand travelled to Europe and then to Benin. When he telephoned Rosenes, as arranged, partway through the trip Rosenes gave him completely different instructions. He was told not to come back to Melbourne, but to fly from Africa to Sydney and then to take a rental car and drive to the El Toro Motel and stay there overnight. Rosenes told him that either he, Rosenes, or a friend would contact him at the motel. Rosenes also instructed him during that conversation to ring Fraser from the airport and say, “The eagle has landed”. Roberts said that the reference to “presents” in a telephone conversation with his wife was to eight presents which he had bought for her in Berlin based on a list she had given him. He did not buy any cocaine while in Africa nor did he see any there. He had not seen the eight plaques produced in evidence before arriving in Sydney. After landing in Sydney he and Brand drove to the El Toto Motel. He woke up at about 3 a.m. He was expecting to be contacted by Rosenes or his friend. He got dressed and tried to make some room in his luggage where he could hide a kilogram of cocaine from Brand. A short time later he heard a knock on the door. He saw a person, who was not Rosenes, with two paper bags, who said, “This is for Fraser. It’s 5.55”. He told Roberts to take it to Melbourne and wait for instructions. Roberts told the person to take the bags with him to the car boot. It was there that for the first time he saw one of the pieces in the bag. It was rubbish, a crude attempt having been made to make it look as though it came from Africa. He could not say that the person was Paton.[11] On arrival at Brand’s flat in Melbourne, he went to the hardware shop and bought a hammer and chisel because he wanted to find out in what unit of measurement the “5.55” were. Having opened one plaque, he realised that the unit of measurement was the kilogram. He removed about half a gram of cocaine from the article for use in the flat. He was not surprised to be arrested as Rosenes had taken him through all that. He did not alert the police to Rosenes’ plot at the time of his arrest as that would have defeated the plot. He said that in prison he received a visit from Rosenes and Firth on 14 November and understood from them that by making a statement implicating Fraser in the importation he would be released from prison. The admissions he made in the record of interview conducted by Federal Agent Hurley were completely untrue. The reason for making them was the police promise to secure his release from gaol once he had complied with their requirements. The admissions contained in his written statement taken on 18 November were also untrue.
[11]The precise purport of Roberts’ evidence as to this, summarised in the text, is discussed in more detail later.
APPLICATIONS RELATING TO CONVICTION
It is to be remembered that these applications concern only the federal offences of which the applicants were found guilty by the jury. It is now possible to consider the several grounds relied on by them respectively. Where similar grounds are relied on by both applicants they will be taken together.
Roberts: ground 1
Counsel for Roberts sought on a voir dire to have the record of interview that was conducted on 16 November 1999 at Port Phillip Prison with Roberts by Federal Agent Hurley and Detective Senior Constable Firth of the Victoria Police (and as to the last ten questions by Firth and Detective Sergeant Rosenes) excluded from evidence on the ground that it was not voluntary, or alternatively in the exercise of the judge’s discretion to exclude evidence on the ground of unfairness or on the ground of public policy. That application was rejected by his Honour, who, for reasons summarised later, held.[12] that Roberts’ answers in the interview were voluntary and declined to exercise his discretion to exclude them on either ground relied on.
[12]At T272-277 of Vol.A.
On the next day of hearing proper counsel for Roberts applied for the record of interview to be excluded as inadmissible by reason of non-compliance with s.23V(1) of the Crimes Act 1914, which made inadmissible in proceedings for any Commonwealth offence any confession or admission made to an investigating official by a person “being interviewed as a suspect (whether under arrest or not)” unless, so far as relevant, the questioning and anything said by the person during the questioning was tape recorded. The contention was that the whole of the questioning had to be recorded and there had been discussion (by implication constituting or including questioning) between Firth and Roberts for some 20 to 25 minutes before the tape recorder was activated on 16 November 1999. His Honour ruled against that submission[13], holding that what was recorded was a “discrete questioning properly considered to have a logical entirety”[14] of which the earlier discussion was not part. Secondly, his Honour considered that the earlier discussion was not “questioning” within the meaning of s.23V and, further, that Roberts was not “being interviewed as a suspect” before the tape recorder was activated. In any event, even if the record of interview were otherwise inadmissible by reason of non-compliance with s.23V(1), “having regard to the nature of and the reasons for the non-compliance”, including the police belief that the earlier discussion and what was recorded were separate and that the earlier discussion was not to be led in evidence, his Honour was satisfied that in the special circumstances the admission of the recorded interview "would not be contrary to the interests of justice” within sub-s.(5), which permitted the judge in his discretion to admit the evidence.[15]
[13]At T26-27.
[14]R. v. Heatherington [1993] 1 V.R. 649 at 654 per Marks, J.; affd. as Heatheringtonv. The Queen (1994) 179 C.L.R. 370.
[15]The court was not referred to any statement by his Honour as required by sub-s.(7), or any warning by him about the evidence of confession or admissions, but his Honour’s reliance on sub-s.(5) was merely contingent upon his first two (or three) reasons being incorrect. In any event, no argument based on sub-s.(7) was, to my understanding, advanced, no ground of appeal relied on it and it was not suggested that any exception based on it had been taken.
To assess the challenge to his Honour’s two rulings it is necessary to state lengthy further facts, relating to the interaction of police and Roberts. After Roberts was arrested at the Greig Court flat on 11 September 1999 he was spoken to by police, who sought to ascertain whether he was prepared to assist with a “controlled delivery” of cocaine to Fraser. Roberts declined. While he was being conveyed by car to AFP headquarters he was told that he could do himself a favour by assisting the police in a controlled delivery. He again declined. He was interviewed by members of the AFP on 12 September and declined to answer questions on the basis of legal advice.
On 3 November 1999 Firth and Rosenes visited Roberts at Port Phillip Prison after receiving information that Roberts had suffered a drug overdose. He was in the isolation ward and under observation. The police had information that the overdose was not self-administered, but did not know whether the information was correct. According to Firth, the purpose of the visit was not to see whether Roberts would implicate Fraser in the importation. Roberts told the police that he had administered the heroin himself. They told him that if he was concerned about his safety that issue could be addressed within the prison system, but he said that he was not concerned. Towards the end of the visit the police told Roberts that there existed “opportunities for benefits by sentencing judges in relation to people who assist with the prosecution of co-offenders”. Roberts neither accepted nor rejected this. Firth said in evidence that there was no suggestion of other benefits that might accrue to Roberts, such as getting bail.
As a result of a phone call from staff at Port Phillip Prison, Firth rang the prison at 2.02 p.m. on 11 November and spoke with Roberts, who told him that he did not mix up the heroin which led to his overdose and that he would like to see the police. Roberts said that he had heard rumours that somebody might be trying to kill him. Firth visited Roberts that afternoon by himself. He said that Roberts wanted to get out of gaol and be placed in witness protection in return for cooperating with the police in implicating Fraser. Firth told Roberts he would need to speak to his superiors.
Firth and Rosenes again visited Roberts in prison on 15 November. Firth said this was because he had been directed by his superiors to go back and find out what information Roberts could provide in order to ascertain whether it was worth pursuing speaking to him. Federal Agent Hurley was also present. Firth said that their discussions with Roberts that day were “off the record”. Their discussions took about an hour.
Firth, Rosenes and Hurley returned to the prison at 11.10 a.m. the next day, 16 November, and spoke to Roberts. A formal taped record of interview commenced at 12.47 p.m. with Firth and Hurley, but not Rosenes, present. In the preceding 40 minutes or so[16] there was discussion between the police and Roberts about the course of action he was considering undertaking. Firth said in evidence that Roberts was concerned that if he elaborated on Fraser’s involvement in the importation during the course of the record of interview the level of risk to him would rise; that Roberts made a voluntary decision to go down the path of assisting police by participating in the record of interview and then making a written statement; and that Roberts was told that the police had spoken to the prosecutors and if he was prepared to give evidence then his position would be looked at favourably in accordance with the usual practice in the courts. Roberts was told that the record of interview would be admissible against him. Hurley completed the interview at 1.38 p.m. She left the prison at 2.20 p.m. Later she telephoned Firth, who was still at the prison, as was Rosenes, to say that she had omitted to ask certain questions relating to inducements and threats and accordingly Firth, with Rosenes present, re-opened the interview to ask those questions, receiving the answers stated summarily later. That took from 3.03 p.m. to 3.07 p.m. Firth and Rosenes commenced taking the written statement of Roberts, but realised that they needed to bring records with them to complete the statement satisfactorily. They left the prison at 4.40 p.m.
[16]On the voir dire Firth’s estimate was 20 to 25 minutes.
On 17 November Firth visited the prison and commenced taking the statement proper from Roberts. He returned on 18 November to conclude the process. The statement was read back by Roberts before he signed it and the reading back was tape recorded. Roberts signed after making some amendments. At that time he clearly intended to plead guilty. In the statement Roberts admitted to having imported cocaine from Africa. The Crown did not seek to tender the statement as part of its case in view of the circumstances in which it had been made, but was allowed[17] to tender it through Firth in rebuttal of some of the cross-examination of him on behalf of Roberts. In re-examination Firth said that Roberts did not at any stage during their various discussions tell him that it was all a mistake and that he was only there because Rosenes initially approached him to assist him, Rosenes, to get Fraser and there was no importation, as Rosenes knew. Firth said that no threat or promise was held out to Roberts.[18]
[17]At T761-763, as already indicated when concluding the outline of the Crown case against Roberts.
[18]The foregoing paragraphs contain only a bare summary of Firth’s evidence, which was largely given under cross-examination.
Hurley gave evidence on the voir dire in the course of which she said that no threat, promise or inducement was offered to Roberts prior to the interview which was recorded.
Roberts gave evidence in the voir dire. His evidence is sufficiently summarised in the summary given later of his Honour’s ruling on voluntariness.
It is now possible to consider the challenge to his Honour’s rulings. By way of introduction it may be noted that s.23S of the Crimes Act 1914 provides, so far as material, that nothing in Part IC (which is entitled “Investigation of Commonwealth Offences” and includes s.23V) affects any burden on the prosecution to prove the voluntariness of an admission or confession or to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of it was adversely affected; or the discretion of a court to exclude unfairly obtained evidence or illegally or improperly obtained evidence.
Now, his Honour was exercising Federal jurisdiction. By s.68(1) of the Judiciary Act 1903 (Cth), so far as material, the laws of a State respecting the procedure for the trial and conviction on indictment of persons charged with offences shall, subject to the section, apply and be applied so far as applicable to persons charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State by the section.[19] Accordingly, by virtue of s.68(1) s.149 of the Victorian Evidence Act 1958 applied, whereby, so far as material, no confession is to be rejected on the ground that a promise or threat has been held out to the person confessing, unless the judge is of opinion that the inducement was “really calculated to cause an untrue admission of guilt to be made”. The statement that s.149 applied by virtue of s.68(1) is predicated on the view that s.149 is a law “respecting the procedure for ... trial”, in which case the more general provision contained in s.79 of the Judiciary Act (whereby, so far as material, the laws of each State, including the laws relating to procedure and evidence, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable) did not apply, since, within the exception in it, other provision was made by s.68(1), a law of the Commonwealth. But, if s.149 is not a law respecting the procedure for trial, it is clearly a law relating to evidence and was therefore picked up by s.79.[20] Compare R. v. Drury[21].
[19]Essentially by sub-s.(2) as qualified by later sub-sections.
[20]Section 23A(2) and (3) of the Crimes Act 1914 made it clear that Part IC of that Act did not exclude or limit s.149.
[21][1984] 1 Qd.R. 356, CCA, where in relation to a different Queensland provision Kelly, J. considered s.68(1) operated, whilst G.N. Williams, J. considered it was picked up by either s.68(1) of s.79.
In his ruling on whether the answers given in the record of interview were voluntary his Honour adopted the correct onus and standard of the proof (namely, that it was for the Crown to prove voluntariness on the balance of probabilities) and posed for himself the correct question (namely, whether the answers were made in the exercise of a free choice to speak or to be silent[22]), which he amplified by reference to certain authorities which made clear that the question was one of fact and degree.
[22]R. v. Lee (1950) 82 C.L.R. 133 at 149.
His Honour then stated the contention for Roberts as being that his will had been overborne by a course of conduct on the part of the police, especially Firth, commencing from the time of his arrest and continuing to the time of the making of the record of interview that involved inducements, manipulations, suggestions and pressure, the manipulations commencing with the concoction by the police of a story that an overdose of heroin was given to Roberts by a well known prisoner in order to kill him at the behest of Fraser which was used to frighten him into giving them the information against Fraser they wanted in return for protection in prison or release on bail or the dropping of charges. His Honour, however, said that he accepted the evidence of Firth and acted on it and not on the evidence of Roberts whenever they were in conflict. He was satisfied that what happened upon Roberts’ arrest on 13 September[23] was not related to and had no influence on what occurred during November. He found that the visit of police on 3 November was for the purpose described by Firth and was not undertaken as the first step in a plan to exert pressure or sow seeds of fear. That day an informer’s discount was raised. On 11 November, his Honour said, Roberts himself initiated what became a series of bargaining sessions in which the police sought to find out what information and assistance Roberts was prepared to give and Roberts sought to discover the terms most favourable to him upon which he would be prepared to do this. He was willing to speak, but on his terms. He sought not only an informer’s discount, but release from prison by one means or another. The police “offered” or made known the availability of no more than cooperation in respect of an informer’s discount, but only if his information or assistance was valuable. By 16 November Roberts realised that he could obtain no more than an informer’s discount together with some degree of protection by way of agreement to confine his information in respect of Fraser to a statement to be made separately from his answers which were to form the subject of the record of interview (and to be used in evidence). His Honour found that Roberts was satisfied with this and proceeded accordingly. It was his decision to do so. He made answers freely, and decided that further bargaining would be fruitless. He must have appreciated that the evidence against him was strong, he having been caught virtually red-handed. It was not a situation in which pressure was applied or inducements were made. He had at all times bargained at arm’s length. Accordingly his Honour found the answers in the record of interview to be voluntary.
[23]A slip for 11 September.
On the hearing of the application counsel for Roberts relied on the submissions advanced at trial. He accepted that it was open to his Honour to make the findings of fact as to what he, the judge, described as “a series of bargaining sessions” except for the conclusion that it was not a situation in which pressure was applied or inducements were made. That conclusion was said to be inconsistent with the earlier finding that the police “offered” or made known the availability of no more than cooperation in respect of an informer’s discount. It was submitted that such an “offer” amounted to an inducement in the sense of an external factor which overbore Roberts’ will to speak or remain silent. (If the will were overborne the answers would not be voluntary.) His Honour’s statement that Roberts bargained at arm’s length in that he knew the police wanted information in respect of Fraser involved by necessary implication that such an inducement as mentioned above was conveyed by word or conduct to Roberts. It was submitted that the record of interview resulted from a course of conduct consisting of “persistent importunity or sustained or undue insistence or pressure”[24] or alternatively from inducements or hope held out by the police, so that it was not voluntary. Counsel took the court in detail through a summary of the evidence on the voir dire with some references to the actual evidence. It was submitted that it was not open to his Honour to hold that what happened on 11 September was not relevant to the events of November. In any case, it was submitted, it was not open to his Honour to conclude that the interview was voluntary. Alternatively, counsel submitted, adopting the words of Brennan, J. in R. v. Collins[25], that “[a] careful assessment of the effect of the actual circumstances of [the] case upon the will of the particular accused” could only lead to the conclusion, on the balance of probabilities, that the interview was not voluntary.
[24]R. v. Lee at 144.
[25](1980) 31 A.L.R. 257 at 307, a judgment dissenting in the result.
In my opinion, his Honour was correct in concluding that what happened on 11 September was not related to and had no influence upon the events of November 1999. As to those events, his Honour had the benefit of seeing and hearing Firth, Hurley and Roberts give evidence on the voir dire. He was entitled to prefer the evidence of Firth to that of Roberts where they differed. Further, the applicant accepts that it was open to his Honour to make the findings of fact as to what he described as a “series of bargaining sessions” (apart from the conclusion). His Honour had, too, Roberts’ answers at the re-opened interview that no promise or inducement had been held out nor any threat made to bring about his participation in the interview and that the interview was given by him voluntarily and of his own free will. In my opinion, it was open to his Honour to find, and he did not err in finding, as he did, that there was no “inducement” or overbearing of Roberts’ will because Roberts at all times bargained at arm’s length and, in any event, that there was no causal relationship between the impugned police conduct and Roberts’ participation in the recorded interview because by 16 November Roberts had formed the view that further bargaining was fruitless and decided, of his own accord and freely, to allow himself to be interviewed. It is implicit in his Honour’s ruling that there was, within s.149 of the Evidence Act, no inducement that was really calculated to cause an untrue admission of guilt by Roberts. Accordingly, the challenge to his Honour’s factual finding that the answers were voluntary must fail.
It is convenient to take next the submission based on s.23V. It was submitted for Roberts that it was not open on the evidence to find that the conversation on 16 November 1999 prior to the recorded interview was separate and distinct from it, reference being made to Heatherington v. The Queen[26]; that it was not open on the evidence to find that that conversation was not questioning or that Roberts was not being interviewed as a suspect; and that there was no evidence of special circumstances justifying the reception of the interview into evidence. It was submitted orally that all conversations between Roberts and the police from the time of his arrest until the completion of the written statement on 18 November constituted one period of questioning, so that all had to be tape recorded. That submission is simply far too wide. The alternative oral submission was that at least the conversation of 40 minutes or so preceding the recorded interview together with that interview (with or without the immediately following period) constituted one period of questioning.
[26]At (179 C.L.R.) 376-378.
In my opinion, his Honour’s ruling on s.23V, which has been summarised earlier, was clearly correct. First, in the 40 minute discussion, as I shall call it, Roberts was not, within the meaning of s.23V(1), “being interviewed as a suspect (whether under arrest or not)”[27]. Rather, arrangements were being made with him orally as to the interview which would be conducted with him as a suspect and as to the written statement which he was prepared to make thereafter. This case is quite different from Heatherington v. The Queen. There in the first period of five to ten minutes the accused was interviewed in an interview room and gave details of events leading up to the assault, of the assault itself and of his conduct after it.[28] The corollary or obverse of the point that has been made is that, whereas, as appears from paragraph (a) of s.23V(1), for the sub-section’s denial of admissibility to operate there must be “questioning of the person” which can be recorded, here there was no such questioning in the 40 minute discussion. This follows from s.23B(6), whereby, in Part IC, a reference to questioning a person is, so far as material, a reference to questioning the person “to investigate the involvement (if any) of the person in any Commonwealth offence”. Secondly, on the assumption that what has been stated so far is incorrect, the 40 minute discussion was not part of the questioning which constituted the interview in which Roberts made a confession or admission. Despite the differences in phraseology between the two provisions, the view expressed in Heatherington v. The Queen[29] about s.464H(1) of the Crimes Act 1958[30] that, where there have been different periods or episodes of interrogation, the requirement that “the questioning” which yields a confession be recorded relates to the particular period or episode during which the confession was made seems applicable to s.23V(1), though, if, as here, the confession or admission is made in a second period of questioning, there is still a question whether the earlier questioning was part of the same questioning as produced the confession or admission. If it was not, the fact that the earlier questioning was not recorded will not of itself preclude the reception of evidence of the questioning in the course of which the confession or admission was made if that questioning was tape recorded.[31] Whether the two periods of questioning should be characterised as the same questioning involves questions of degree and may require the weighing of a variety of factors, including the proximity in time and venue of and the relationship between the two occasions and the relationship between the interrogations which took place on them. One starts from the position that an appellate court will not readily interfere in the factual question whether there was one questioning or more.[32] Here, despite the proximity in time and the identity of venue the purpose of the 40-minute discussion and that of the recorded interview were different and the questioning in the interview was not influenced by what was said in the discussion save that both the investigators and the suspect avoided the question of Fraser’s complicity. Particular lines of questioning were not suggested by or derived from the 40-minute discussion. The recorded interview was self-contained.[33] It did not purport to be a resumption of the 40 minute discussion. It was therefore appropriate, in my opinion, for his Honour to characterise the recorded interview as “discrete”, even if the full words Marks, J. used in R. v. Heatherington, received some criticism on appeal.[34] It follows from my view that his Honour was correct in the two grounds I have so far considered that I reject the submission that it was not open on the evidence to make the findings (or characterisations) underlying those two grounds.
[27]Having been remanded by a magistrate, he ceased to be treated for the purposes of Part IC as being under arrest: s.23B(3). But, as the parenthesis in the quotation in the text shows, that alone did not make s.23V(1) inapplicable.
[28]This appears from (179 C.L.R.) 371 and 372.
[29]For example, at (179 C.L.R.) 375.
[30]The requirement for recording in that section is excluded in relation to Commonwealth offences by s.23A(4).
[31]Heatherington v. The Queen (179 C.L.R.) at 376.
[32]Heatherington v. The Queen (179 C.L.R.) at 386 per Toohey, J.
[33]Questions 17 and 18 (and perhaps 6) refer to the 40 minute discussion, but they are purely administrative, not substantive or concerned with the merits. In any event Questions 17 and 18 obtained confirmation which was able to be recorded.
[34]Heatherington v. the Queen(`79 C.L.R.) at 381-2.
Since s.23V(1) did not, in my opinion, operate to render the record of interview inadmissible the discretion under sub-s.(5) was not engaged. But, if it were, I am inclined to think that it was open to his Honour to take the view that there were special circumstances and to be satisfied that the admission of the record of interview would not be contrary to the interests of justice. In other words, his Honour’s contingent exercise of discretion did not, I am inclined to think, miscarry.
The answers in the record of interview having been correctly found to be voluntary and s.23V(1) not rendering the record of interview inadmissible, his Honour ‘s exercise of discretion now falls for consideration. His Honour noted that the onus on the application that he reject the record of interview in his discretion was on the accused on the balance of probabilities. He dealt only with the reasons that had been advanced, or at least persisted in, before him in favour of the exercise of each discretion. As to the discretion concerned with unfairness it had been submitted to him that the police made it clear to Roberts that his answers would not be used against him and it would therefore be unfair now to allow that to happen. The short answer was, his Honour said, that he did not accept that the police had done that. As to the discretion on the ground of public policy, it had been submitted to him that, although it was proper to cultivate a prospective informer, any admissions against interest made by the latter in the course of that cultivation should not be led against him, it being contrary to public policy to do so. But, his Honour said, the only admissions sought to be led against Roberts were those in the record of interview and Roberts knew that they would be led against him. He was not misled.
The correctness of his Honour’s decision on the argument advanced to him on each of the discretionary grounds cannot be doubted. But, as regards the unfairness ground it was submitted for Roberts to this court that the interview should have been excluded as having been obtained in circumstances which would render the use of it unfair and unjust to him and reliance was placed on the statement of principle in Van der Meer v. The Queen[35] that the question is not whether the police have acted unfairly but whether it would be unfair to the accused to use his statement against him, unfairness being concerned with the accused’s right to a fair trial, a right which may be jeopardised where the statement is obtained in circumstances which affect its reliability. The trial judge was criticised for considering only one aspect under this discretion, that is, whether the police did represent that the answers would not be used against Roberts; but that was the only aspect raised before his Honour. Other aspects raised on the hearing before this court were whether the circumstances in which the interview was agreed to affected its reliability; whether the circumstances leading up to the interview had impugned Roberts’ freedom to choose to speak or remain silent; and whether the relationship between him and the police had elicited a confession which would not otherwise have been made.[36] I would not permit his Honour’s discretionary decision to be attacked on the basis of arguments not put to him. In any event, the second of the further aspects now relied on is foreclosed by the decision that the answers were voluntary and as to the other two aspects there was nothing in the way in which the answers were obtained which rendered their use unfair or unjust to Roberts.
[35](1988) 62 A.L.J.R. 656 at 666, cited with approval in The Queen v. Swaffield; Pavic v. The Queen (1998) 192 C.L.R. 159 at 174 and 189.
[36]Compare Van der Meer at 662 per Mason, C.J., cited in Swaffield at 174-175.
So far as the public policy ground of discretion is concerned, reliance was placed on the statement by Barwick, C.J. in The Queen v. Ireland[37] that there is the public interest in the protection of an individual from unlawful and unfair treatment and it was submitted that the unfair treatment in this case consisted – and here again the considerations went beyond that raised below - in the conduct by the police in offering inducements to Roberts on and after his arrest; in assuring him up until the recorded interview that anything he said was “off the record”; in failing to offer protection even if his safety was at risk; and in advising him of the benefits available. The public policy aspect has developed since Ireland, but even according to that case the discretion was not engaged unless there was illegal or improper conduct on the part of the investigating authorities. Here there was no such conduct. More specifically, of the four aspects of alleged unfair treatment the first and last are inconsistent with the reasoning for the conclusion that the answers were voluntary; his Honour had in connection with the recorded interview, as already stated, rejected the second; and the third is immaterial and probably incorrect.
[37](1970) 126 C.L.R. 321 at 335.
For these reasons the challenge to his Honour’s exercise of discretion fails. It might have been sufficient to say that none of the circumstances in which a discretionary determination may be set aside had been established.
Ground 1 therefore fails.
Roberts: ground 2
It was conceded for Roberts that if (as I have held to be the case) the record of interview was properly admissible then no error or miscarriage of justice was occasioned by the admission into evidence of the statement signed on 18 November. It follows that this ground also fails.
Roberts: grounds 3 and 4
Urbanec: grounds 1, 2, 3 and 4
The remainder of each application relating to conviction was devoted entirely to the effect upon the trial of his Honour’s various rulings arising out of the arrest and charging with drug-related offences on 29 July 2001 and 31 July 2001 respectively, that is, shortly before the trial commenced, of two members of the Victoria Police attached to the Drug Squad who were part of the task force investigating suspected illegal drug activities on the part of Fraser and, eventually, Roberts, namely, Detective Sergeant Malcolm Rosenes and Detective Senior Constable Stephen Paton (as they were at the time of that investigation). Early in the hearing, before a jury was empanelled, there became available to counsel for each applicant, as a result of production on behalf of the Chief Commissioner of Police on subpoena, a Summary of Evidence relating to Rosenes and others and one relating to Paton prepared by the Corruption Division of the Ethical Standards Department of the Victoria Police, which both counsel asserted, and the prosecutor denied, constituted evidence of corruption on the part of Rosenes and Paton. During the hearing of the applications the Victorian Director of Public Prosecutions made available to counsel for each applicant copies of the charges against Rosenes and a Summary of Evidence against him and a co-accused prepared as an aid to the prosecutor on a bail application. Mr. Holdenson, appearing for the Commonwealth Director of Public Prosecutions, informed the court that he was instructed to say that the Victorian Director had informed him and his junior that they could tell the court that he believed that the contents of the new summary were true, though it was important to note that it was only a summary. Roberts through his counsel made oral application, in which counsel for Urbanec joined, for leave to rely on the matters disclosed by those documents as “fresh evidence” in support of the application for leave to appeal against conviction. The court reserved its decision on the oral applications until it should give judgment on the principal applications.
As indicated in outline at the commencement of these reasons and in the recitation of added grounds, since judgment on the applications for leave to appeal was originally reserved Paton pleaded guilty on 11 June 2003 to two counts of trafficking in a commercial quantity of drugs and was on 20 June sentenced to a total effective sentence of 6 years’ imprisonment with a non-parole period of 3 years, while Rosenes on 2 October 2003 pleaded guilty to four counts of drug trafficking, two counts of conspiracy to traffic in a drug and one count of possession of a drug and on 24 October was sentenced to a total effective sentence of 6 years and 3 months’ imprisonment with a non-parole period of 3½ years. The two counts of conspiracy to traffic related to cocaine, as did one of the trafficking counts.
It appears from an affidavit filed for the respondent that another Victoria Police witness in the trial, Detective Senior Sergeant Wayne Strawhorn (as he then was), mentioned briefly earlier in these reasons, has been charged with drug-related offences and two threats to kill and that the Victoria Police witness Firth, whose evidence has been referred to earlier in these reasons, has been suspended on full pay pending an investigation. There is no ground of appeal relating to those matters, but reliance is placed on an otherwise uncorroborated assertion by Paton, referred to in more detail later, that Strawhorn wanted him to “plant” drugs on Fraser, which he declined to do.
Counsel for Roberts informed the trial judge that he desired to cross-examine Rosenes and Paton about their having been charged and about the matters in the Summaries of Evidence produced on behalf of the Chief Commissioner, and he and, as I understand it, counsel for Urbanec indicated to the judge that they wished to lead, or to attempt to lead, through other witnesses, evidence of matters in the Summaries. At any rate counsel for Urbanec submitted that the two Summaries should be admitted because the ruling his Honour had by then made upholding public interest immunity meant that the original evidence could not be disclosed. His Honour, by ruling, refused to allow any (1) such cross-examination or (2) independent evidence of corrupt drug dealings by Rosenes or Paton. In addition, on a voir dire in the absence of the jury the judge, by ruling, allowed Rosenes and Paton to take a proleptic and global objection to answer on the ground of privilege against self-incrimination any questions relating to the charges against them respectively and upheld the objection of each of them. In essence the grounds now under consideration challenge the correctness of his Honour’s ruling on each of those three aspects.
The court has had the benefit of detailed written and oral argument on these grounds, together with an 11-page summary of all the discussion and evidence in the transcript of proceedings below bearing on them. It is neither practical nor necessary in this already lengthy judgment to repeat the summary of the transcript references. However, for an informed determination of the grounds now under consideration it is proper to attempt a shortened, though still lengthy, statement of the written outline of submissions for Urbanec, in which the argument for the applicants finds its most eloquent enunciation, as well as a summary of his Honour’s lengthy principal ruling and other rulings or observations.
The overall contention for Urbanec was that the trial of both applicants miscarried owing to a series of rulings by the trial judge, necessitating the re-trial of both. The first three grounds of appeal by Urbanec against conviction particularised the manner in which the presentation of Roberts’ defence was frustrated by rulings made by his Honour. Thus, Urbanec’s arguments were directed to Roberts’ defence, which had been adopted by him, that there had been no importation of cocaine by Roberts. In other words, Urbanec’s arguments were entirely derivative. After summarising the counts and the defences and the essence of Roberts’ affirmative “defence” the outline contended that Roberts’ credit was made an issue on the prosecutor’s suggestion in the presence of the jury that the whole story deposed to by Roberts was complete fiction; whereas, it was submitted, by virtue of his Honour’s rulings the credit of Rosenes and Paton was not. The outline then turned to the corrupt dealings of Rosenes and Paton. It pointed out that they were senior police officers in the Drug Squad and that Rosenes had the day-to-day management, under the direct supervision of Strawhorn, of the investigation into the dealings by Fraser and Roberts. It then summarised the contents of the two Summaries of Evidence, which it said revealed a sophisticated and high level of involvement in the illicit narcotics trade by then serving police officers, the purchase of the first of the large quantities of Sudafed tablets having occurred on 17 January 2000, some four months after the alleged importation of cocaine by Roberts. It was then submitted that the judge’s rulings occasioned a miscarriage of justice in two different ways. First, the defence could not cross-examine or lead evidence to prove that Rosenes and Paton were not credible or reliable witnesses in that they were corrupt police officers who, as such, were likely to engage in other corrupt dealings in narcotics as alleged by Roberts. Secondly, the prosecution gained an advantage by being able to call them as credible witnesses in order to deny in their evidence in chief the defence assertion that they involved Roberts in a sham importation in order to provide Roberts in Australia with cocaine to be used to concoct a case against Fraser. It was then asserted that on Roberts’ case Rosenes and Paton were critical witnesses. If they were discredited and shown to be persons likely to engage in the illicit narcotics trade, then it would leave open the reasonable possibility that they acted in the way in which Roberts maintained they did. On the other hand if, as occurred, they were presented as untarnished witnesses of truth then the jury might well have rejected Roberts’ defence as fanciful.
The outline then turned to the evolving position of the Crown in relation to calling Rosenes and Paton. Under that rubric it was asserted that the fact that Rosenes and Paton were finally regarded by the Crown as critical to rebutting the defence case emerged from the prosecution’s change from initially refusing to call them as witnesses at all to calling them to rebut the defence case. It was said that, notwithstanding that Paton was named on the indictment/presentment as a witness the Crown proposed to call and that Rosenes was named as an additional such witness, at the beginning of the trial the prosecutor took the view that he would not call either or make them available for cross-examination[38], although they would be made available should the defence wish to call them. After counsel for Roberts had outlined his client’s case to the judge, the prosecutor, the outline continued, reiterated his position[39] and elaborated upon it on two other occasions. Presumably, it was said, they were not regarded as witnesses of truth. However, after Roberts’ counsel’s opening to the jury challenging the Crown to call them and the cross-examination of Firth, establishing their availability, the prosecutor announced that he proposed to call them and ask them questions to elicit whether they agreed or disagreed in the proposition that they were engaged in a conspiracy to manufacture a case against Fraser and to “plant” drugs on Roberts.
[38]However, the prosecutor’s statement was qualified by the words “as things stand at the moment”.
[39]However, the prosecutor used the words “for the time being” and said that he could not rule out a duty to call them “for cross-examination or other purposes” if circumstances changed.
It should be stated immediately that, had Rosenes and Paton been convicted by the time they gave evidence, as witnesses they could have been asked whether they had been convicted and, if they denied that or refused to answer, the cross-examining party could have proved the conviction. This follows from s.33 of the Evidence Act 1958, which applied by virtue of either s.68(1) or s.79 of the Judiciary Act. His Honour[144] accepted that this would have been so but indicated that the trial could not await the resolution of the charges against Rosenes and Paton. The prosecutor[145] agreed that the convictions could have been put to the witnesses, though he doubted whether the convictions could be proved if denied. That overlooks the second part of s.33. Prior convictions are at common law and in Victoria by statute exceptions to the rule or standard of finality, as pointed out by McHugh, J. in Goldsmith v. Sandilands[146]. In Bugg v. Day[147] Dixon, J. considered that the better view was that at common law a conviction could not be used for the purpose of discrediting a witness if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is, in his character or trustworthiness as a witness of truth. The substantive terms of s.33 are not qualified in that way, but the section does begin “Except as hereinafter provided ...” and that seems to be a reference to s.37, which deals with cross-examination as to credit and is likewise applied by the Judiciary Act. Although in the original submissions for the respondent in opposition to Urbanec’s application for leave to appeal the contrary was submitted, I should have thought that, having regard to the occupation and rank of Rosenes (and Paton) and the nature and extent of their offending, questions of them as to their convictions should not have been held improper under paragraph (b) of s.37 on the ground that the imputation they conveyed related to matters of such a character that the truth of the imputation would not have affected or would have affected in a slight degree only the jury’s opinion as to their credibility on the matters to which they testified. I therefore conclude that, if necessary, the convictions, had they by then been sustained, could have been proved at trial, if necessary.
[144]At T359.
[145]At T370-371.
[146]At 378, para.[33].
[147](1949) 79 C.L.R. 442 at 467.
But the evidence of the convictions would have gone only to credit: for the reasons given much earlier when considering relevance, the evidence of the convictions would not have tended to prove or disprove the fact in issue (importation by Roberts) or the identified fact relevant to that fact in issue (the delivery to or “planting” on Roberts of cocaine at the El Toro Motel or even the scheme to “get Fraser” using Roberts). The position might have been different if the convictions were, for instance, for attempting to pervert the course of justice by fabricating charges or “planting” incriminating evidence. I shall return later to the fact that the convictions bear on credit only.
So far as the credit of Paton is concerned, the respondent again submitted that this did not require consideration at trial because his evidence was not in issue since Roberts exculpated him from impropriety at the El Toro Motel. I have earlier referred to the evidence of Roberts on this topic. My own opinion is that the better view of that evidence is that it meant that the person delivering the cocaine at the El Toro Motel was not Paton, and that Roberts’ attempt to depart in cross-examination from what he had said unambiguously in chief was not to be accepted. But, since a court in considering a fresh evidence ground is required to make its assessment of a hypothetical past jury verdict, I shall not base my decision on my own assessment of Roberts’ evidence on the topic. In other words, I shall not accept the foundation of the respondent’s submission, namely, that Roberts did exculpate Paton.
I am further of the opinion that evidence that Strawhorn wished to incriminate Fraser falsely in drug offending and unsuccessfully sought to have Paton bring this about would have been irrelevant. This is because counsel for Roberts expressly abstained[148] from suggesting that Strawhorn was part of the conspiracy to “plant” drugs on Roberts and because in any event Paton’s statement makes it clear that Strawhorn’s attempt to have Paton implement his wish was unsuccessful and that the wish was to implicate, not Roberts, nor Fraser via Roberts, but Fraser via Paton. Of course the mere facts that Strawhorn had been charged and Firth had been suspended, if available at trial, would, for reasons given earlier, have been inadmissible.
[148]At T1371.
In my opinion, for the reasons which follow, there is not a significant, or indeed any, possibility (or a likelihood) that the evidence relied on in these grounds, if believed (as it undoubtedly would be in the case of the convictions following pleas of guilty), would have led the jury, acting reasonably, to acquit the applicants if the evidence had been before the jury at the trial. First, the only evidence that would have been properly admissible, namely, the evidence of the convictions (and, perhaps, pleas) would have borne solely on credit and that has never, or almost never, been sufficient to make out a fresh evidence ground. Thus, in Hook v. Ralphs[149], which was an appeal to a judge from a court of summary jurisdiction, von Doussa, J. stated that a review of the authorities indicated that in theory fresh evidence going solely to credit might be treated as relevant and, in turn, as capable of raising a sufficient possibility that at trial the accused might have been acquitted had the evidence been before the court, but in practice this had not occurred. Decided cases showed that appeals had been allowed only where the fresh evidence going to credit of a witness had some additional characteristic or[150] there had been other matters as well which raised doubt about the justice of the verdict. That, his Honour said[151], was understandable. It would have to be an exceptional case for fresh evidence establishing general bad character on the part of a witness upon whose evidence at trial the verdict rested to justify quashing the conviction recorded after an otherwise regular trial. I agree. The present applications are, in my view, not exceptional cases.
[149](1987) 45 S.A.S.R. 529 at 537. In the later case of Winslett v. The Queen (1992) 60 S.A.S.R. 1 the fresh evidence did not go merely to credit. Compare R. v. Zaidi (1991) 57 A.Crim.R. 189 at 193-195.
[150]As in Davies and Cody v. The King (1937) 57 C.L.R. 170.
[151]At 537.
Secondly – and this is really a corollary of the first reason - even considered by itself, the evidence is insufficient. The returns of prisoners (recording the convictions) and relative presentments and evidence according with the statement by Paton would have neither proved nor tended to prove that any police officer (other than Rosenes and Paton and perhaps, though not in a relevant respect, Strawhorn) engaged in any improper, corrupt or criminal conduct. Nor would any of that evidence have borne upon any of the evidence given by any of the members of police who gave evidence at the trial (other than Rosenes and Paton) in such a manner that any of the last-mentioned evidence could not or should not have been accepted by the jury.[152] Importantly, for reasons given earlier in discussing relevance, the fresh evidence propounded would have neither supported nor tended to support the defence of the applicants or the sworn evidence given by Roberts in support of that defence nor would it have either disproved or tended to disprove the Crown’s contention that Roberts brought cocaine in the eight plaques through the Sydney airport on 10 September 1999. Leaving aside the fact that the earliest of Rosenes’ subsequent proven criminal conduct occurred 15 months after the conduct imputed to him by Roberts, the two sets of conduct were quite dissimilar in nature. The evidence under consideration would not have shown or tended to show a propensity in Rosenes to engage in a course of conduct of the nature imputed to him by Roberts in his evidence.
[152]As regards Strawhorn, evidence could not have been led from Paton of Strawhorn’s unsuccessful attempt to induce him to “plant” drugs on Fraser because, for the reasons already given, it would not have tended to prove the fact relevant to the fact in issue. However, on the highly dubious assumption that no claim of privilege against self-incrimination would have been made, it could have been put to Strawhorn in cross-examination. But, with some exceptions, Strawhorn’s evidence in chief and in re-examination was limited to formal matters and information he received from subordinates (both of which were no doubt proved by others) and evidence which was also given by the witnesses whose credit was not in question, such as Sergeant Werts of the AFP, who (like Strawhorn) gave evidence of offering Roberts the opportunity of taking part in a controlled delivery to Fraser and of Roberts’ declining to do so. Thus, even if, Strawhorn’s credit were destroyed there would have been credible evidence on these matters. The exceptions mentioned, however, are Strawhorn’s evidence that, so far as he was aware, Paton did not leave the motel bedroom they shared during the night Roberts and Brand were at the El Toro Motel, that Paton was still asleep when he, Strawhorn, awoke, that he, Strawhorn, did not see any luggage capable of holding the eight plaques and that he was not party to any arrangement with Paton or Rosenes or anyone else to deliver the plaques to Roberts for the purpose of his inveigling Fraser into the commission of an offence. Even if cross-examination of Strawhorn on Paton’s statement would not have been objected to and would have led the jury to disbelieve Strawhorn on those topics, that would not have proved the opposite of Strawhorn’s evidence on the topics (R. v. Brotherton at 104E-F, cited later) nor, for reasons to be given, would it have had any effect on the trial as a whole or its outcome.
Special reference should here be made to the submissions on behalf of Urbanec. The contention appears to be that the fresh evidence adds strength to the submission made under ground 4 that a miscarriage of justice arose out of his Honour’s rulings when coupled with the conduct of the prosecutor in calling Rosenes and Paton in the circumstances in which it is said he did and in his submission in response to the application made at the conclusion of the cross-examination of Rosenes. It is important to realise that, subject to possible cross-examination of Strawhorn as already discussed, the fresh evidence can only be used as going to the credit of the respective witnesses who were convicted. Further, I do not accept the submission that the prosecutor was disingenuous in presenting Rosenes and Paton as witnesses of integrity on the topic on which he called them. It does not necessarily follow from their subsequent discreditable and even dishonest conduct that they were dishonest at the earlier time, or that their evidence about the earlier time would be dishonest. This is particularly so where, as I shall later show and as the prosecutor knew, other material overwhelmingly supported the evidence he was calling them to give. As stated under Roberts’ grounds 6 and 7 the prosecutor was fully entitled to form the view that Rosenes and Paton were credible and reliable witnesses on the topic on which he called them. The case of Grey v. R.[153] is quite distinguishable. True it is that Gleeson, C.J. and Gummow and Callinan, JJ. spoke of a “disingenuous basis on which to present” a key witness,[154] but that case dealt with non-disclosure, albeit inadvertent, by the prosecution of critical information about the witness. A miscarriage was held to have occurred by reason of the non-disclosure. Here, there was no relevant non-disclosure relating to Rosenes or Paton, and the prosecutor did what he was urged to do and announced that he would do so before the judge had given his rulings which had the effect of insulating the witnesses from their then alleged criminal activities. Further, I do not accept that the prosecutor’s submission to the effect that Rosenes had not staked his reputation so much as asserted that he was telling the truth did not tally with the evidence or was misleading.[155] The submission overlooks the last three words in the statement of the witness, “I find it repugnant that you are questioning my integrity on this issue”. The only statement that in my view could support the submission is Rosenes’ statement that he had never accosted anyone in his police career. That might invoke his reputation, but it is not his reputation for honesty or integrity but rather for proper police behaviour or non-belligerence. The reference to being a wage earner is simply, in my view, concerned with a matter of fact. It is significant that the judge, who had the benefit of hearing the witness, agreed with the submission of the prosecutor which Urbanec’s counsel has described as not tallying with the evidence and being misleading. For these reasons, I consider that the invitation to criticise the prosecutor should be discountenanced entirely. Moreover, a perceived need to criticise counsel, even if made out, could not be a reason for a re-trial. A miscarriage is required. If my conclusions on the challenges to his Honour’s rulings are correct, the trial was conducted in accordance with the rules of evidence (including substantive immunities) and consequently there was no miscarriage.
[153](2001) 184 A.L.R. 593.
[154]At 598, para.[16].
[155]Even if this were correct and the ruling had been re-opened, the reasoning underlying the ruling would have required the same result.
Thirdly, the fresh evidence is to be considered with all the evidence that was given at the trial.[156] Had the evidence under consideration been placed before the jury at the trial the result would not have been different. This is because of the strength of the Crown case, of which I mention the following aspects, and the inherent unlikelihood of the defence case, of which I then mention aspects:
[156]See, for instance, Lawless v. The Queen (1979) 142 C.L.R. 659.
(a)First, Roberts confessed on three separate occasions to the commission of the crime of importation of the cocaine, namely:
(i)in a conversation at Port Phillip Prison on 15 November 1999 with Firth, Rosenes and Hurley, Firth’s notes of which counsel for Roberts had Firth read into evidence;
(ii)in the recorded interview conducted by Hurley and Firth (but not, in the principal and relevant part, Rosenes) on 16 November 1999 at Port Phillip Prison; and
(iii)in the 17-page statement dated 18 November 1999, taken on 16, 17 and 18 November 1999 by Firth (and also Rosenes on 16 November) at Port Phillip Prison and signed and “read back” (whilst being recorded on video tape) by Roberts.
(b)Secondly, evidence was led in the trial which was either contrary to or inconsistent with the evidence of Roberts that cocaine had not been obtained by him in Benin and had not been subsequently imported into Australia by him but had been, instead, provided to him by an unidentified male at the El Toro Motel on the morning of 11 September 1999, that contrary or inconsistent evidence being independent of Rosenes and consisting of at least the following:
(i)that Brand, while in the hotel in Benin, had seen one of the wooden plaques, which she said had some sort of detail on it looking like a map or postcard of Benin (her evidence as to this being impressive);
(ii)that Brand, while overseas and subsequently to seeing one of the wooden plaques, carried items of luggage which were consistent with their containing the plaques;
(iii)that the origin of the wood from which the eight wooden plaques (seven of which were intact or unopened at the time of the arrest of Roberts) were made was tropical Africa, three of the plaques bearing (under varnish) postcards depicting scenes from Cotonou, and that the cocaine was most likely of South American origin and very highly unlikely to have been manufactured synthetically in Australia;
(iv)telephone conversations recorded in telephone intercepts as follows:
CALL NO. DATE DESCRIPTION[157]
[157]Using the historic present tense.
9530 August 1999 Mohr telephones Cornelius and says that her husband is arriving that day and wants the same present.
9930 August 1999 Mohr tells Roberts that she has done it all and he is to telephone Cornelius and all is prepared and that at 9 a.m. the next day he can pick up “all [his] presents”.
5194 September 1999 In response to a question from Mohr, Cornelius says that it is finished and Roberts has the “presents”. He asks her to send money. She indicates it will be via Western Union. He gives her details of Roberts’ changed return flights.
6247 September 1999 Urbanec tells Roberts that he has sent the money and tells him to bring back a few figurines and to “make sure they are varnished, because otherwise they make trouble ...”.
6498 September 1999 Roberts tells Mohr, “They sewed that stuff together with a hot needle ... The varnish isn’t, isn’t properly dry”.
6559 September 1999 Cornelius tells Mohr that “eight presents” are being given.
2310 September 1999 Roberts tells Mohr, “The eagle landed”.
2410 September 1999 Roberts tells Fraser, “The eagle has landed”.
(v)Conversations recorded by listening devices, as follows:
16 August 1999 In Fraser’s Office
Roberts tells Fraser he will come back and deliver “about 6 kilos minimum”. Roberts and Fraser discuss what to do after “get[ting] through Customs”. Roberts and Fraser discuss Roberts giving [Brand] $8,000.
11 September 1999 At Flat 4/6-8 Greig Court
Roberts tells Mohr, “It is 5.55.” Mohr tells Roberts that she telephoned Cornelius and he told her that eight presents had been given by him to her husband.
(c)Thirdly, several other matters the subject of evidence were inconsistent with the defence relied on, namely:
(i)Roberts had (as he admitted in his evidence before the jury) previously given sworn evidence on a voir dire on 28 August 2001, in response to a question asked by his own counsel, that he did not, on 3 November 1999 at Port Phillip Prison, recognise Rosenes, whereas in his evidence before the jury he said that he had had eight to twelve meetings with Rosenes in order to arrange the incrimination of Fraser;
(ii)upon his arrival at Brand’s residence on the afternoon of 11 September 1999 Roberts (as he said in his evidence) opened one of the eight wooden plaques, extracted a small portion of the cocaine contained in it, took the cocaine to Brand’s flat and used at least some of it, although this cocaine, on the defence case, was not his to consume.
(d)Fourthly, if the sworn evidence given by Roberts was true, it necessarily meant that
(i)he had been prepared to engage in a course of conduct which put a number of innocent persons (including his wife Mohr and his friend Urbanec) at risk of being prosecuted for a serious drug offence;
(ii)he had made three detailed statements to the police falsely implicating his wife and his friend Urbanec in the commission of serious offences;
(iii)the person Roberts had sought to implicate falsely in the importation of cocaine (namely, Fraser) was the very solicitor he called for after he had been arrested and been afforded an opportunity to obtain legal advice; and
each of those matters defied belief.
(e)Finally, the very gist of the defence (that Rosenes was eager through Roberts to implicate Fraser falsely in the commission of a serious drug offence) was implausible and inherently incredible, for:
(i)it was particularly risky to engage Roberts, a person who was then unknown to Rosenes;
(ii)it was most unlikely that an intelligent and mature person could be improperly persuaded to engage in a course of conduct as expensive and sophisticated as that engaged in by Roberts in order to avoid being charged with an offence of possession in mid-June 1999 of a very small amount of cocaine;
(iii)it was most unlikely that Rosenes would provide $20,000 to Roberts in order to finance the overseas trip (and particularly so when, at a much lower cost, Roberts could be sent, for example, interstate);
(iv)it would have been much simpler for Rosenes simply to “plant” some drugs in Fraser’s premises than to engage Roberts; and
(v)it was unnecessary for such a very large and very valuable quantity of cocaine to be provided to Roberts in circumstances where it was highly unlikely that Rosenes would be able to get it back.[158]
[158]Besides the matters enumerated above, counsel for the respondent also relied on the failure by Roberts on numerous occasions to inform police that he had been engaged by Rosenes to implicate Fraser in the importation of cocaine or to complain to any official about being “double-crossed” by Rosenes; but, since the present task is directed to consideration of what would have been the verdict of the jury had the fresh evidence been led, to rely on such failures seems to infringe the rule enunciated in Petty v. The Queen; Maiden v. The Queen (1991) 173 C.L.R. 95 at 99 that it should not be suggested in a criminal case that previous silence about a defence raised at trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. Contrary to the submission for the respondent, the source of the relevant pieces of evidence does not seem material. The rule was raised by the Bench.
It is to be noted that, with the exception of the conversation on 15 November 1999 and the initial work on the statement dated 18 November 1999, the items of evidence enumerated above were independent of Rosenes and thereby actually corroborated his sworn evidence in the trial that he had not engaged in the course of conduct described by Roberts.
But even if, despite the last-mentioned consideration and all the other factors, the jury, in light of Rosenes’ convictions, would have disbelieved his denials of engaging in the course of conduct described by Roberts, that would not have enabled them to infer that Roberts’ version was or may have been true. Disbelief of a denial does not produce some evidence of the truth of the matter denied and as a matter of logic adds no greater weight to evidence of the truth of the matter denied than the absence of any denial at all: R. v. Brotherton[159] and R. v. Lovett[160]. Roberts would simply be “no further ahead”. It would just be as if Rosenes had not given evidence on the matter. The same applies to Paton’s denials if they should be material.
[159]At 104E-F.
[160][1972] V.R. 413 at 418 (3rd para.).
I have had regard to the matters raised by counsel for the applicants as constituting difficulties in the Crown case. Perhaps the strongest point is that no cocaine was detected in their hand luggage as Roberts and Brand passed several barriers in the Sydney airport. But the preferred police “scenario” was that they should not be interfered with at the airport but arrested in Melbourne.[161] In any event, non-detection can easily occur. There was also the short break in the surveillance of the rental car in the El Toro Motel car park. But it seems from Brand’s evidence that what set off the tracking device put in the car was a visit to it by Roberts to get the heavier luggage. Despite these points, the case for the Crown was overwhelming. The defence of Roberts was fanciful. The judge in his sentencing remarks described it as “nonsense” and a “fiction”. Notwithstanding the fresh evidence under consideration that defence remains fanciful. The admission of the fresh evidence could not, in my opinion, have precluded the jury from finding beyond reasonable doubt that Roberts himself imported the cocaine into Australia in the eight plaques. Accordingly, there was no miscarriage of justice by reason that the convictions of Rosenes and Paton, together with the contents of Paton’s statement, were not before the jury, and the convictions on counts 1 and 3 are not unsafe or unsatisfactory as asserted.
[161]At T1381.
The proviso
Much earlier in these reasons I stated that, if his Honour had erred as alleged in any of the grounds challenging his rulings as to cross-examination of Rosenes and Paton about, and independent evidence of, their drug dealings, I was of the opinion that the proviso to s.568(1) of the Crimes Act applied. This is because, by reason of the aspects of the case enumerated in paragraph [127] above and the discussion in paragraphs [128] to [130], neither applicant lost a chance of acquittal that was fairly open to him. Accordingly, if, contrary to my view, his Honour erred in any of his rulings, the applications for leave to appeal should nevertheless be dismissed pursuant to the proviso.
Conclusion as to convictions
For the foregoing reasons each application should be dismissed.
APPLICATIONS RELATING TO SENTENCE
The wording of each application confines it to complaining about the sentence imposed on the count on which the applicant was found guilty by the jury. The maximum penalties, the sentences imposed on each applicant and the grounds of proposed appeal have been set out earlier. Having regard to the length of these reasons already, I shall not summarise his Honour’s extensive sentencing remarks but rather shall refer to them, where appropriate, in considering the applicants’ individual grounds.
Roberts
It was submitted for Roberts under ground 1 (parity) that the disparity between the sentences imposed on him and the other co-offenders was so great that it gave the appearance that justice had not been done. There was, it was said, nothing in the antecedents, personal circumstances or roles played by each of the co-offenders, especially Mohr, to justify the disparity. In particular, it was submitted that there was nothing in the respective roles to characterise Roberts as the prime instigator. There was no credible evidence as to whose idea it was or where finance for the trip or the purchase of cocaine came from. Roberts in his statement had said that it was Fraser, but at the trial he said that it was Rosenes. (It should be recorded that in a statement relating to Fraser tendered on Urbanec’s plea the Crown acknowledged that there was no evidence that Fraser made any financial investment in the importation scheme.) It was said that the mastermind is not generally the one who does the leg work. Reliance was placed on the conversations between Mohr and Cornelius. It was pointed out that it was Mohr, not Roberts, who knew him. Her role was far higher than his Honour had recognised and indeed there was not much difference between her role and Roberts’ role.
An appellate court intervenes because of disparity only where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.[162] Whilst the differences between the sentence imposed on Roberts and those imposed on Mohr and the other co-offenders respectively are substantial, I have come to the conclusion that the differences are well explicable and not such as to engender a sense of grievance that would be shared by an objective observer. This is a case where the sentences were all imposed by the one judge and where that judge had had the benefit of listening to the evidence called in the trial of the present applicants. His Honour’s sentencing remarks, dealing with all four co-offenders, are extensive and wide ranging. He showed himself[163] mindful of the different roles played by each, of the different personal factors applicable to each and of the fact that some and not others were entitled to discounts or credits. Moreover, he stated that when considering the appropriate sentence for each he had borne in mind what he considered to be the appropriate sentence for the others.
[162]R. v. Taudevin [1996] 2 V.R. 402 at 404; Postiglione v. The Queen (1997) 189 C.L.R. 295 at 323; Lowe v. The Queen (1984) 154 C.L.R. 606 at 610, 613 and 623.
[163]At T2104.
Amongst the differences in factors bearing on sentence were the following: Urbanec’s role was far less than that of Roberts; Mohr and Fraser pleaded guilty; Fraser received a discount for future co-operation; Mohr had obtained some insight into her terrible drug problems, had become drug-free in prison and had good prospects of rehabilitation if she remained free of drugs; and Mohr and Fraser had no prior convictions. Roberts, on the other hand, was, despite his counsel’s submission to the contrary, the principal in the criminal enterprise. He was the importer, but not as a mere courier. Although Urbanec and Mohr gave him information as to the availability of cocaine in Benin, he seems to have conceived the scheme and he certainly planned and executed it. When he was in Africa he dealt with Cornelius. He was sentenced for importation. He had a prior conviction for cultivation of a narcotic plant. He used Brand and thereby exposed her to the risk of being falsely convicted. His Honour found that there was no evidence of remorse on his part and no basis for believing that he had any real prospect of rehabilitation, so that specific deterrence as well as general deterrence had to be prominent sentencing considerations.
The co-offenders, particularly Mohr, assisted Roberts in the importation. His Honour recognised that Mohr’s role was an essential one, pointing out that she made telephone calls to assist Roberts’ introduction to the supplier, sent him money and, despite her natural jealousy of Brand, was a steadying influence when Roberts showed signs of what might have been the beginning of panic. Her concern in the importation was significant. She knew that Brand was to be exposed to the risk of conviction of a very serious offence. His Honour took her plea of guilty, albeit belated, into account.
Notwithstanding the essential and significant role of Mohr, the five year difference between the sentence imposed on Roberts on count 1 and Mohr on count 3 is, I consider, objectively justifiable by reference to the mitigating factors present in her case. In particular, his Honour was entitled to give significant weight to her prospects of rehabilitation. Most reliance in the parity argument was placed on Mohr’s sentence. But, so far as Fraser’s sentence was relied on, the difference is readily explicable by reference to his undertaking to assist in the future and his absence of prior convictions. This ground, therefore, fails.
Under ground 2, it was submitted that the sentence imposed did not properly reflect the adjustment required by s.16G of the Crimes Act 1914. That section, which has been repealed as from 16 January 2003[164], required his Honour to take the fact that sentences in Victoria are not subject to remission or reduction into account in determining the length of the sentence and to adjust the sentence accordingly. (A like provision was made in relation to the non-parole period by s.19AG, which has been likewise repealed[165]). It was submitted that if the proper adjustment had been made in the sentence which his Honour imposed the starting point in determining the appropriate sentence would have been in the order of 17 years or so and that was manifestly excessive. (As worded, the ground assumes, rather, a proper starting point but an insufficient adjustment.)
[164]By s.3 of and Item 1 of Schedule 3 to the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth).
[165]As in the immediately preceding footnote, save that the item in Schedule 3 is Item 2.
His Honour expressly stated[166] that, in respect of the Commonwealth offences, he had taken into account the provisions of s.16G and the principles set out in R. v. Li[167]. In that case this court held that the discount which a court was bound to apply under s.16G was not to be calculated in accordance with a strict mathematical formula of one-third of the sentence which it otherwise regarded as appropriate, but rather by the exercise of a general discretion to make an adjustment, bearing in mind the fact that remissions had previously led to a reduction in the length of sentence of the order of one-third. Now, the offence of importation committed by Roberts warranted a very long sentence of imprisonment. It was a serious instance, with a large quantity of a dangerous drug, of a very serious offence, carrying a maximum custodial penalty of life imprisonment. It was accordingly open to his Honour to moderate the s.16G adjustment as part of his instinctive synthesis: R. v. Majeric[168]. It follows that it cannot be said that his Honour failed to make the appropriate adjustment. This ground therefore fails.
[166]At T2104.
[167][1998] 1 V.R. 637.
[168](2001) 121 A.Crim.R. 451 at 459. See also at 452.
Urbanec
On the first ground (parity with Mohr) it was pointed out that Mohr’s plea of guilty was a late plea, occurring on the seventh day of hearing, and that her role was greater than Urbanec’s in contacting her husband overseas in order to assist in making arrangements to advance the importation. His Honour had described her role as significant and essential, but Urbanec’s as not essential, though useful. (It may be added that, as appears in paragraph [16] above, his Honour had spoken of Roberts as receiving considerable support and assistance from Mohr and some, but less, assistance and support from Urbanec.) Thus, Urbanec transmitted to Roberts in Benin only $900 in contrast to Mohr. He was not the instigator, main player or driving force in the importation. His practical participation was, his Honour was prepared to find, more that of a “gopher”, a trusted and biddable gopher. Orally it was submitted that the only difference between the two offenders was Mohr’s late plea of guilty. There was, therefore, it was submitted, a sound basis for him to receive a lower sentence than she did.
I have already, when considering Roberts’ application, referred to his Honour’s awareness of the differences in various factors as between the several co-offenders. I have also referred to some mitigating factors present in Mohr’s case, namely, her plea of guilty, albeit late; her lack of prior convictions; her being drug-free at the time of sentencing; and her good prospects of rehabilitation. To those may be added the fact that at the time of offending she had a severe heroin addiction. That factor tending towards mitigation was not present in Urbanec’s case.
On the contrary, Urbanec did not have the benefit of mitigation flowing from a plea of guilty, from evidence of remorse or from good prospects of rehabilitation. Rather, he had a prior drug conviction and in view of the last three matters his Honour found that specific deterrence was a relevant sentencing consideration.
His Honour was, I consider, entitled in his discretion to sentence Urbanec as he did, particularly because of the presence in the case of Mohr of the mitigating factors I have mentioned. This is not a case where the difference between the two sentences is manifestly excessive or such as to engender a sense of grievance that would be shared by an objective observer. This ground fails.
Under ground 2 it was submitted that, given the adjustment required by s.16G, the sentence would otherwise have been in the range of 13½ years, which was a sentence which the relatively minor role Urbanec played in being knowingly concerned in the importation did not warrant. The sentence imposed did not show that the required adjustment had been made.
Although Urbanec’s role was much less important than that of Roberts, he was knowingly involved in the importation, which was a serious instance of a very serious offence. For similar reasons to those given on the corresponding ground taken by Roberts, the present ground fails. One particular argument for Urbanec, however, must be noted. This was that because his Honour relied only on R. v. Li he had not moderated the s.16G adjustment as authorised by R. v. Majeric. Although moderation will be progressively less significant as the starting point under consideration reduces, I am not persuaded that his Honour did not engage in some moderation. Alternatively, he made, as he was entitled to, an adjustment of rather less than one-third.
It was submitted under ground 3 (manifest excessiveness) that, having regard to Urbanec’s limited role, 9 years’ imprisonment was “just too much”. As has been said many times, whether a sentence is manifestly excessive does not admit of much argument. The question is not whether the Court of Appeal would have imposed a
more lenient sentence, but whether the sentence in fact imposed was within the range open to the sentencing judge in the exercise of a sound discretionary judgment; for there is no one correct judgment in any given case. In my opinion, the sentence of nine years was within the range properly open to his Honour. In coming to that conclusion I have had regard to the maximum penalty for Urbanec’s offence, to the paramount need for general deterrence, to the fact that, although his role was not very significant, he knowingly participated in and lent his assistance to a substantial importation of a baneful scourge of modern society, to the value of the cocaine, to the relevant prior conviction of Urbanec, and to the absence of mitigating factors such as remorse, plea of guilty and prospects of rehabilitation. This ground accordingly fails.
Conclusion on sentences
For the reasons I have given, I would dismiss both applications.
BUCHANAN, J.A.:
I agree with Batt, J.A. that each application should be dismissed for the reasons stated by his Honour.
CHERNOV, J.A.:
I have had the considerable advantage of reading the draft reasons for judgment of Batt, J.A. For the reasons given by his Honour I agree that the applications should be dismissed.
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