R v Sukkar - [2005] NSWCCA 54

No judgment structure available for this case.

CITATION:
Regina v SUKKAR [2005] NSWCCA 54

HEARING DATE(S): 22/7/04, 20/12/04

JUDGMENT DATE:

16 March 2005

JUDGMENT OF:
Wood CJ at CL at 1; Hidden J at 155; Smart AJ at 156

DECISION:
1.Appeal dismissed; 2.Crown appeal against sentence dismissed; 3.Leave granted to the Appellant to appeal against sentence; 4.Appellant's appeal against sentence dismissed.

CATCHWORDS:
Criminal law - importation of ecstasy tablets - being knowingly involved in importation - Customs and Police surveillance -controlled delivery - intercepted telephone calls and recorded conversations - extent of importation process - whether verdict reasonable or supported by evidence.

LEGISLATION CITED:

Crimes Act 1900 - s 16G

CASES CITED:
B v The Queen (1992) 63 A Crim R 225
Chai v The Queen (2002) 76 ALJR 628
Domican v The Queen (1992) 173 CLR 555
Green v The Queen (1971) 126 CLR 28
Harriman v The Queen (1989) 167 CLR 590
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Pemble v The Queen (1971) 124 CLR 107
R v Bartle [2003] NSWCCA 329
R v Broadhurst [1964] AC 441
R v Chan (2002) 131 A Crim R 66
R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49
R v Doney (1988) 37 A Crim R 288
R v Hannes (2000) 158 FLR 359
R v Kwong Yue Cheung SCWA CCA 28 October 1997
R v Lam (1990) 46 A Crim R 402
R v Leff (1996) 86 A Crim R 212
R v Mai (1992) 26 NSWLR 371
R v Malone NSWCCA 20 April 1994
R v Meher [2004] NSWCCA 355
R v Quach [2002] NSWCCA 519
R v Prasad [2004] NSWCCA 293
R v Schmahl [1965] VR 745
R v Shepherd [2003] NSWCCA 287
R v Taousanis [1999] NSWSC 107
R v Tillot (1991) 53 A Crim R 46
R v Tomazos NSWCCA 6 August 1971
R v Williams (1990) 50 A Crim R 213
R v Zorad (1990) 19 NSWLR 91
Stokes v The Queen (1960) 105 CLR 279
Tripodi v The Queen (1961) 104 CLR 1

PARTIES:
Regina
Steven Sukkar

FILE NUMBER(S):
CCA 2004/1918, 2004/1673

COUNSEL:
R Sutherland (Crown)
B Stratton QC

SOLICITORS:
Commonwealth Director of Public Prosecutions
Uther Webster and Evans

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/1216

LOWER COURT JUDICIAL OFFICER:
Acting Judge Andrew

2004/1918
2004/1673

WOOD CJ at CL
HIDDEN J
SMART AJ
Regina v Steven SUKKAR

Facts: The Appellant stood trial and was convicted on a charge of being knowingly concerned in the importation of narcotic goods, namely “ecstasy” tablets to the value of between $7.2M and $12M. He was sentenced on 19 December 2003 to imprisonment for fourteen years with a non-parole period of nine years. The tablets had been concealed in 48 columns in a shipping container which was transported by ship from Belgium. They were intercepted in Brisbane by Customs and Police, who initiated a controlled delivery.

The Crown case was that the Appellant’s knowing concern was demonstrated by his participation in the unloading of the columns after they were delivered to premises in Sydney owned by him, in the examination of the columns and sorting of tablets removed in a search for genuine ecstasy among the inert tablets, and in making extensive inquiries as to the whereabouts of the balance of the consignment which he, and his brothers suspected had been stolen either by those involved in the European end of the shipment, or by associates who had been responsible for the clearance and initial delivery of the container into a warehouse in Brisbane. The Appellant’s case was that he was innocently unaware of, and had no knowledge of the importation until December 1 when his brothers came to him for advice, by which time, it was contended, the importation process had ended.

Ground 1 - His Honour erred in admitting into evidence the words spoken by his brother who clearly was a Principal, “Steven ate two,” on the occasion of the unloading and examination of the columns in Sydney on 24 November 2001 during an intercepted telephone call.
Held : The words were properly to be regarded as being spoken in the furtherance of the common purpose, there being sufficient prima facie circumstantial evidence to satisfy the Tripodi test of preconcert from at least the morning of 24 November: R v Tripodi v The Queen (1961) 104 CLR 1.

Ground 2 - His Honour erred in admitting into evidence references to possible past and future importations of drugs found in intercepted telephone calls and recorded conversations to which the Appellant was a party.
Held : The evidence was relevant and probative as to the Appellant’s participation in the importation by showing his knowledge of what was involved: Harriman v The Queen (1989) 167 CLR 590 applied.

Ground 3 - His Honour erred in not discharging the jury when the jury sent a note expressing concern over the inappropriate behaviour of a person in the public gallery.
Held : The trial judge gave appropriate directions to the jury and there was no risk of a miscarriage of justice or need for a discharge of the jury.

Ground 4 - His Honour erred in his directions concerning being “knowingly concerned in the importation.”
Held : The directions were adequate and sufficiently explained what was involved in the concept of being knowingly concerned in an importation in accordance with the principles established, for example in R v Courtney-Smith (No 2) (1990) 48 A Crim R 49.

Ground 5 - His Honour erred in playing to the jury a recording of the whole of his summing up during the jury deliberations.
Held : The discretion (see R v Taousanis [1999] NSWSC 107) was appropriately exercised by the trial judge in the context of a lengthy trial, following a request by the jury for a transcript of the summing up.

Additional ground of appeal -The summing up of the learned trial judge was not balanced and leant too far towards the Crown.
Held : The summing up was comprehensive, correct and properly balanced.

Ground 6 - The verdict was unreasonable or cannot be supported by the evidence.
Held : The process of importation is an extended and flexible concept (see R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith(No. 2) (1990) 48 A Crim R 49; and R v Leff (1996) 86 A Crim R 212 and may include recovery, unpacking, storage and anything done in direct proximity, incidental to, or proximate to the bringing of goods into the country. In this context, the conduct of the Appellant (after 24 November) amounted to a knowing concern on his part, the importation process still being on foot during the period when the Appellant rendered assistance to the Principal in seeking to recover the drugs. There was a proper evidentiary basis for the jury to reach their verdict and they ought not have had a reasonable doubt as to his guilt.

Crown appeal against leniency of sentence and Applicant’s appeal against sentence
Held : No appealable error was shown. The sentence was warranted in law. Conviction and appeals against sentence dismissed.
- 89 -

2004/1918
2004/1673

WOOD CJ at CL
HIDDEN J
SMART AJ
Wednesday 16 March 2005

Regina v Steven SUKKAR

Judgment

1 WOOD CJ at CL: The Appellant stood trial, together with his brother Paul Tony Sukkar, on a charge of being knowingly concerned in the importation of narcotic goods, consisting of not less than a commercial quantity of 3,4 methylenedioxymethamphetamine (“Ecstasy”) tablets. To that charge he entered a plea of not guilty. After a trial lasting two months he was found to be guilty of that offence. He was sentenced on 19 December 2003 to imprisonment for 14 years with a non-parole period of 9 years, each to date from the time of his arrest, namely 5 December 2001.

2 The Appellant now appeals against the conviction, and seeks leave to appeal against the sentence. The Crown appeals against the leniency of the sentence.

Facts

3 On 17 November 2001, the ecstasy tablets the subject of the charge arrived in Brisbane on board the P&O Nedlloyd vessel Tuaranga. They had been transported from Belgium, via Singapore, concealed in 48 columns, which purported to be parts of a portable coolroom. They were packed into a 40 foot shipping container consigned to CJ Trade Consultants Pty Limited, a company which had been registered in April 1999 as part of business venture between Huynh Joon (John) Choi and the Appellant and of which the Appellant, Choi and Louis Sukkar were originally listed as directors.

4 After the cargo was landed it was intercepted by Customs and Police who removed the 480,000 tablets concerned from the columns which were repacked with tablets of an inert substance together with a smaller amount of the original tablets (13,000) for the purpose of allowing a controlled delivery pursuant to a certificate granted to the National Crime Authority. The total consignment of drugs had a bulk weight of 123.75 kgs, or 34.401 kgs of pure ecstasy, with a wholesale value of between $7.2M and $12M.

5 Listening devices were placed in the container and in a warehouse in Brisbane, which had been leased by Maurice Shepherd and to which the container was transported. Telephonic interception began in relation to the services of a number of suspects and video cameras were installed in the warehouse.

6 The container was unpacked in the warehouse by Shepherd and Glen Bourke, and the 48 columns together with some other parts of the cool room were loaded onto a truck which had been leased by Louis Sukkar. It was then driven by Bourke to Kempsey. Louis Sukkar, Choi and another person followed it in a motor vehicle, which Choi had rented. At Kempsey Louis Sukkar took over the driving of the truck, which arrived at 84 Consett Street, Concord West on the morning of 24 November. Bourke was a general handyman who had been used by the Appellant and Choi when they had conducted a restaurant business. He had also been used by other members of the Sukkar family, and on this occasion he had been given advance knowledge of the components within the container that contained the narcotics.

7 The premises at Consett Street had recently been purchased by the Appellant. They were occupied by Louis Sukkar, Michelle Royal and an Asian student who was boarding there. Surveillance was maintained, and from 27 November listening devices were installed.

8 Shortly after midday, the Appellant arrived at the premises, where he remained until about 4 PM.

9 During part of the afternoon, the truck was unloaded, and the columns were initially placed in a garage and later moved to a garden shed. During the period that the Appellant was at the premises Joseph Sukkar and John Choi were also present. He was observed to be assisting in carrying columns from the truck.

10 During that afternoon it appeared that the columns were examined and the contents removed from at least some of them. In the course of that activity it is evident from the telephone calls which Louis Sukkar made that he became aware of the substitution of the tablets. These calls were made to Joseph Sukkar.

11 During one call to Joseph Sukkar, Louis Sukkar said, when reporting that there was “nothing to check” that the Appellant had eaten two of the tablets during the unpacking, and that he as well as his girlfriend had similarly eaten some tablets.

12 Objection was taken to the admission into evidence of this observation, and it gives rise to one of the grounds of appeal to which I will return.

13 After 4.00 PM the Appellant left the premises with Choi and together they went to a restaurant or cafe in Strathfield. He returned after 6.00 PM but remained there for only about six minutes.

14 Over the following week the Appellant attended the premises on Sunday 25th, Monday 26th, Tuesday 27th, Friday 30th, and Saturday 1st December 2001. During that week there were many telephone calls made, involving Louis Sukkar, Joseph Sukkar, and Choi that were intercepted, and which were admitted into evidence, along with the product of the conversations that were intercepted by the listening devices which had been installed in the premises. Video recordings of the activities that occurred were also tendered. In the main the conversations during this period were concerned with attempts to bring together the documentation that had been used in connection with the importation in case it shone a light on when and where the substitution had been effected.

15 Late in the afternoon of 1 December whilst Louis Sukkar, Joseph Sukkar and the Appellant were at 84 Consett Street, arrangements were made for a barbeque at Joseph Sukkar’s home, which all three then attended.

16 During that evening the Appellant was a party to a number of telephone calls, that were obviously directed towards discovering how, when and where the substitution had been made, and whether one of the various parties involved in the importation other than a member of the Sukkar family had obtained the drugs.

17 On 2 December 2001 the Appellant, Joseph Sukkar, Paul Sukkar and Louis Sukkar gathered at 84 Consett St. A number of columns were examined and opened and a sorting process was undertaken in which the genuine ecstasy tablets were separated from the substituted tablets. The empty columns were loaded on to a truck which had been leased, and were then taken by Paul Sukkar to a storeroom in Granville. The substitute and genuine tablets remained at Consett Street. After the empty columns had been removed and most, if not all, of the sorting had been finished, the Appellant left the premises.

18 The movements of those who were suspected of being involved in the importation were kept under surveillance during 3, 4, and 5 December. Recordings of telephone calls and of conversations intercepted by listening devices between 1 and 5 December were tendered, along with video recordings of the activities and Consett Street.

19 On 5 December 2003, the Appellant was arrested and charged. It is obvious from the conversations to which I will return, in a little more detail, that Joseph and Louis Sukkar, who were clearly involved as principals, initially suspected that the substitution had occurred at the European end. Later, largely as a result of the Appellant’s inquiries, the blame shifted to John Choi. Somewhat inadvisedly, although perhaps out of misplaced confidence, they did not give serious consideration to a lawful interception by the authorities.

20 Although it was the Crown case that the Appellant had been knowingly concerned in the importation before 24 November, it accepted that there was no direct evidence of that being the case. Rather, its case in that regard was circumstantial, being pursued upon the basis that his attendances on 24 November and 2 December had not been a mere coincidence, and upon the further basis that a fair understanding of the many telephone calls, which he made, showed his knowing involvement in the venture before 24 November.

21 The Crown also contended that his actions in seeking to locate and remove any more genuine ecstasy tablets, which were still in the columns, on 2 December 2001, and to find who had taken the balance of the tablets were themselves actions which constitute his knowing concern in the importation, it being contended that the importation process was still on foot while attempts were being made to find and to recover the genuine tablets.

22 It was the case of the Appellant, who was the youngest member of the Sukkar family, and a practising solicitor, that he had known nothing of the importation until the evening of 1 December.

23 In his evidence he said that he had attended the Consett Street premises for the first time in his life on 24 November. Its purchase had been arranged by Louis Sukkar out of the profits from the sale of another house which he had owned and which had been renovated by Louis Sukkar. The arrangements which were made were similar to those pertaining to the previous house, in that Louis Sukkar was to live there and to renovate it.

24 He accepted that he had helped unload the truck on 24 November, but did so innocently unaware of the assumed presence of drugs in the columns. He denied tasting any of the tablets. He accepted that he had gone to Strathfield with Choi, but denied that this had any relationship to the importation of narcotics. Choi’s presence at the house, he said, had been unexpected, and there was nothing unusual, that he could see, in Joseph or Louis calling in that day, which was a Saturday.

25 Choi, he said, had been a client of his legal practice, whom he had introduced to his brothers because he believed him to be a person with business expertise, who could assist them in their legitimate business activities.

26 He acknowledged having visited Consett Street on a number of occasions during the following week, but said that he did not at any time discuss with his brothers the importation or substitution. His first knowledge of it, he said, was on the night of 1 December when he was asked by his brothers to assist them to ascertain how, when, where and why the substitution had taken place, because of their concern that those at the European end were accusing Joseph Sukkar, and his accomplices, of being guilty of a “rip off”.

27 Thereafter, he said, he made the various telephone calls, to which I will return in more detail when I come to the principal ground of appeal, because of his concern for the safety of his brothers in the event of there being a reprisal from the Europeans. It eventually became his belief, which was communicated to the Europeans, that Choi had been responsible for the substitution, and that it had occurred in Brisbane.

28 It was as a result of this advice to the brothers that a proposal from the European end to send out various persons to investigate the problem, resulted in only one man, Antoun El Hani arriving in this country and being arrested.

29 It is evident, from the various intercepted conversations, that it was Joseph Sukkar who had direct connections with those involved at the European end, including El Hani whom he had known while living in Lebanon. It was the case that Joseph Sukkar had travelled to Europe in October 2001 immediately prior to the despatch of the container.

30 It was also the Appellant’s case that on learning of the importation, he wanted everything connected with it, to be removed from his house. It was to that end, he said, that he went to the premises on 2 December where he assisted in checking the columns and sorting tablets, because he thought that this would facilitate their removal. He explained that while the columns were removed, the tablets had remained because Louis Sukkar had failed to deliver on his promise to remove them.

31 A number of persons have been dealt with by the Courts in relation to this importation. They include Shepherd who pleaded guilty and gave assistance to the authorities. For his role in providing assistance in relation to the clearance of the container, and its reception into the warehouse, in return for a payment of $25,000, he was sentenced, on appeal (R v Shepherd [2003] NSWCCA 287) to imprisonment for 11 years 6 months with a non-parole period of 7 years and 4 months.

32 Another offender who was also convicted of knowingly being concerned in the importation was Simon Sunil Prasad, who had an import/export business, and who was recruited by Choi to take on the role of ensuring the Customs clearance, and to act as a cut-out between Shepherd and Choi and such of the Sukkar brothers as were involved, for a net reward (after payment to Shepherd) of $25,000, plus forgiveness of a debt of about $100,000 owed to Choi. He was sentenced to imprisonment for 14 years with a non-parole period of 8 years and 8 months.

33 Although this Court held on appeal: (Regina v Prasad [2004] NSWCCA 293) that a proper sentence would have been one of imprisonment for 17 years with a non-parole period of 11 years and 2 months, it dismissed the Crown appeal against leniency, on discretionary grounds.

34 El Hani, who also pleaded guilty and provided some assistance to the authorities, was sentenced to 15 years imprisonment, with a non-parole period of 10 years. He was found to be a senior person in the importation who had been sent to Australia to discover what had gone wrong with the importation and to put the matter to rights.

35 The jury were unable to agree on a verdict in relation to Paul Sukkar who had however offered a plea of guilty to being an accessory after the fact to the importation. By the time that the Appellant came to be sentenced, proceedings in respect of Joseph and Louis Sukkar, and Choi, were incomplete.

Ground 1 – His Honour erred in admitting into evidence the words “Steven ate two” included in the intercepted telephone call between Louis and Joseph Sukkar at 19.38.05 hours on 24 November 2001.

36 This call took place after the Appellant had left the premises with Choi at about 4 PM and before his return at about 6 PM. It followed a number of calls that were made by Louis Sukkar to various people, including Choi, in which Louis made mention of being “set up”, and having “some stuff planted.”

37 In the conversation at 19.38.05, the following is recorded (M1: Louis Sukkar; M2: Joseph Sukkar):

38 It is evident from the conversations which followed this call that Joseph and Louis were working on the hypothesis that there had been two consignments of drugs on the vessel, that the “other side” had worked a substitution in respect of their consignment, and had given Customs a tip off, yet Customs had mistakenly intercepted the other consignment, an event of which mention had been made in the news on the preceding Wednesday.

39 In allowing the disputed comment into evidence as relevant to a fact in issue, namely the Appellant's “knowledge of the importation”, his Honour had regard to the decisions in Tripodi v The Queen (1961) 104 CLR 1 and R v Mai (1992) 26 NSWLR 371. Those decisions establish that where the prosecution case is one involving a number of persons acting in preconcert in the commission of a crime, then once reasonable evidence of the preconcert has been adduced, evidence of directions, instructions, arrangements or utterances accompanying acts given or made by any one of those persons, although in the absence of the others, in furtherance of their common purpose, which constitutes or forms an element of the crime, becomes admissible against the other or others.

40 It was here submitted by the Appellant that:

(a) The importation was over by the time of this conversation, and the comment by Louis Sukkar to Joseph Sukkar was not made in furtherance of any common purpose to import the drugs, albeit it was one to which undeniably they had each attached themselves;

41 The reasonable evidence of preconcert does not involve proof beyond reasonable doubt, nor is it confined to direct evidence.

42 In my view, there was prima facie circumstantial evidence of a preconcert in relation to the Appellant arising from the following circumstances:

(a) His earlier associations with Bourke and Choi;

(b) The inherent improbability of his brothers delivering a potentially enormous quantity of drugs to his premises, without his knowing consent, combined with evidence pointing to his knowledge of their earlier and ongoing involvement in drug importations;

(c) His involvement in the unpacking activities on the afternoon of 24 November;

(d) His regular attendances at the premises during the following week and the evidence pointing to his knowledge before 1 December of the fact that the tablets had been badly packed;

(e) His involvement in the checking and sorting activities on 2 December;

43 Although not necessarily determinative beyond reasonable doubt of his involvement in the enterprise before 24 November, I am satisfied that these matters constitute sufficient evidence to satisfy the Tripodi test of preconcert from at least that morning. I am also satisfied, for the reasons later set out, that the importation could not be regarded as having been completed by the time of the relevant conversation, and that the words uttered were properly to be regarded as having been spoken by Louis in furtherance of the common purpose.

44 In that regard they clearly related to what was being done in the course of recovering the drugs from the columns or from the possession of whoever then held them. Louis Sukkar was confirming to his brother that there had been a substitution, and was encouraging him to make it clear to the consignor/exporter that there had been an attempted set up. As the immediately following conversation shows it was also known by Louis that there were some genuine ecstasy tablets “sprinkled” among the substituted tablets. The evidence had a potential relevance in so far as it threw light on the assistance provided on 24 November by the Appellant, in so far as it tended to explain his apparent familiarity with the venture when he spoke to Choi on 1 December, and in so far as it tended to show his knowledge of what had been imported in the columns.

45 I am not persuaded that his Honour was in error, either in finding it relevant to a fact in issue, or in declining to exclude it on discretionary grounds.

46 This ground is not made good.

Ground 2 – his Honour erred in admitting into evidence the references to possible past and future importations of drugs which were included in a number of recordings of intercepted telephone calls and in conversations recorded by listening devices.

47 The conversations in question occurred on 1, 2, 3 and 4 December 2001, and in each case the Appellant was a speaker or was present when it took place. The first of those conversations (on 1 December) was between Louis Sukkar and the Appellant. In the course of it the Appellant reported his concerns that Max Messina of Intergroup Shipping, to whom he had spoken in relation to the movements of the container using a false name, was “sussing” him out, and had known what was arriving.

48 The conversation continued (M1: Appellant; M2: Louis Sukkar):

last time

49 The second of these conversations occurred on 2 December, and it was one in which the Appellant said:

next time

50 The third conversation occurred during the tablet sorting, the speakers initially being Louis Sukkar and Paul Sukkar in the course of which there was discussion about Choi having “overstepped the mark this time” and about temptation getting too much for people, although as the Appellant observed “how come it’s never been too much for us”. This was followed by further conversations about there being “over two hundred thousand dollars in there he’s [Choi] not seeing any of that”. A little later that day (at 12:13) the Appellant and Joseph Sukkar discussed future “work”:

next one

51 At 12:47 on the same day the Appellant and Joseph continued their discussion:

still work with you

52 At 12:57, after some discussions about sending Tony some money so that he could come (to Australia), the intercepted conversation involving the Appellant, Joseph Sukkar, Louis Sukkar included the following passages:

next one

53 In a further conversation on the same day (commencing at 13:33) Joseph and Louis discussed five hundred kilos in Brazil and doing “another one”.

54 In a conversation (commencing at 14:20) in which each of the Appellant Joseph Sukkar, Louis Sukkar, Paul Sukkar and an unknown male participated, there was the following exchange:

last one

55 The final conversation on 2 December 2001 of relevance in relation to this ground (at 17:05) involved the following exchange between the Appellant and Joseph Sukkar:

do one more

you’ll

56 Then on 3 December there was a discussion between the Appellant (SS), Michelle Royal (MR) and Louis Sukkar (LS) (at 19:11:37) in relation to the Appellant’s apparent discovery that the pipes in the columns were Australian made. That conversation included the following exchange:

last time

the last one

57 There was further discussion at 18:04:50 about the tubing in Paul Sukkar’s possession, in which Paul Sukkar confirmed that he had checked them and had found that they were solid foam, and in which the Appellant asked him to check if the other tubes were Australian made.

58 This evidence was not led as tendency or coincidence evidence. Rather the Crown relied upon it as establishing the nature of the Appellant’s relationship with those who were obviously principals in the importation and as being contradictory of the defence case that he had been a late and reluctant conscript after the importation had ceased. Objection was taken to its tender as being prejudicial and as not being probative in relation to the fact in issue, namely whether the Appellant was knowingly concerned in the importation.

59 The admissibility of this evidence was in my view properly established, in accordance with the line of authority that was settled in Harriman v The Queen (1989) 167 CLR 590, esp at 594 per Brennan J and applied in Regina v Quach [2002] NSWCCA 519 and R v Chan (2002) 131 A Crim R 66. Each provides an example of a case where conversations, or conduct, relating to other offences involving the importation or supply of drugs, were received into evidence in order to establish the true nature either of the charged transaction, or of the relationship between those involved.

60 The evidence was, in my view, admissible upon the same basis, not as tendency or coincidence evidence, but as being relevant, and probative, in relation to the defence case. That case was to the effect that the Appellant had no knowledge of the importation, or of his brother’s activities, prior to the evening of 1 December, and thereafter only behaved, in the way that he did, out of an urgent desire to have the incriminatory material removed from his property, and also to assist his brothers in establishing, to the satisfaction of the European end, that they had not “ripped off” the drugs.

61 The portions of those conversations to which objection was taken, were admitted by his Honour as being relevant to the Appellant’s knowledge of the nature of the importations and of his knowing involvement in the present one. His Honour also made it clear that he would give a direction that the evidence was received on this basis, and was not to be used by way of tendency reasoning. I am not persuaded that he was in error in finding that the evidence was relevant to a fact in issue, or in declining to reject the evidence on discretionary grounds.

62 The asserted concern that the Appellant had to remove the incriminatory material is somewhat hollow, having regard to the obvious belief of the brothers, and of the Appellant, that someone other than law enforcement authorities had intercepted the consignment, and that they had in fact targeted a quite separate consignment, and also having regard to the fact that the tablets remained on the premises up to 5 December.

63 Together the conversations show that the Appellant was well aware of the nature of the unlawful operations in which his brothers had engaged and which they had planned. The terms in which he spoke showed his acquiescence in and support for those activities and were clearly relevant to show the nature of his participation in the events which commenced, so far as he was concerned, from 24 November 2001. The obvious familiarity which he had with their activities, and the confidence which they had in speaking to him, clearly emerges from the references to past and future dealings, and in particular to the tubing or pipes which had been involved in this and in an earlier importation.

64 The use by the Appellant of the plural in relation to “our end” and to what they (“we” or “us”) had done or proposed for the “next one”, was relevant to the issue of his involvement in the transaction, and to the time that his participation began.

65 While it would not be enough for the Crown to show that the Appellant was concerned, in the sense of worried, that his brothers had imported narcotics, or that he simply knew that they had done so, the conversations, in which he became engaged, and the terms in which he spoke, particularly when read in the context of the somewhat violent response which he had in mind in relation to Choi, pointed in the direction of his knowing involvement in the transaction, and were admissible as relevant in relation to that issue.

66 It was evidence that was contradictory of the proposition that the Appellant had only been brought into the inner sanctum, innocently, and after the importation had been completed, to assist his brothers out of concern for their welfare at the hands of the aggrieved suppliers from the European end. As the Crown put it on appeal “the comfortable and knowledgeable manner in which the Appellant spoke of past and future importations” was clearly relevant to a consideration of his relationship with his brothers, and of the reason for, and nature of, his conduct from 24 November 2001.

67 This ground is not made good.

Ground 3 – his Honour erred in not discharging the jury when the jury sent a note expressing concern about a person behaving inappropriately in the public gallery.

68 This ground arose by reason of a note, which was sent by the jury on the 30th day of the trial, expressing concern that a young man in the public gallery appeared to have had in his possession a mobile phone, possibly a video phone, that had been pointed in their direction. The Appellant, who had been giving evidence at the time, indicated that he had seen a young lady, whom he knew, although not favourably, come into the Court during the afternoon, and that he had also seen a young man, whom he did not know, come into the Court. The young man remained unidentified, despite the inquiries that were made when an application for discharge of the jury was made. Later it emerged that the lady was observed making signs in the direction of the Appellant, while he was giving evidence. No application was made in this regard, although the lady was removed from the Court.

69 The Appellant submitted that the jury may have been concerned about their own security, in relation to these events, and that there was a risk that they would have connected them with the Appellant, resulting in a risk of prejudice to his case.

70 His Honour dealt with each of these matters by way of an appropriate direction to the jury.

71 In relation to the note, he said:

As a result of that note, I have taken steps to try and determine what did transpire yesterday and as to whether there were any photographs or films taken. I have taken further steps to ensure that it hasn’t and cannot happen. Please be assured that everything is being done to that end. Such an events (sic) if it did happen can have no bearing on this trial and you can and should not speculate on its meaning and nothing could be attributed in any way to the accused in relation to this event.

I propose to give you further directions at the end of the trial when I sum up in relation to that.”

72 In relation to the signs, he said:

“Members of the jury, I understand before we adjourned there was someone sitting at the back of the Court supposedly making signs to the witness, and I must say I didn’t see this, but some of you may have seen this. I just wish to say to you that person has been removed. But it has nothing to do with the accused and there is nothing that has come about because of him, and if things were seen, that should simply be ignored.”

73 He returned to the matter in the summing up, in so far as he observed:

“You may recall that I directed you at the time that this conduct had no connection with the accused. I repeat that direction, that this activity was not related in any way to either of the accused and that incident forms no part of the evidence and can from no part of the trial and cannot be used in any way adverse to the accused, and it should not be speculated upon.”

74 The directions given by the learned trial judge were appropriate to the circumstances which had arisen. There was no risk of a miscarriage of justice, or occasion for the jury to be discharged as a result of what occurred.

Ground 4 – his Honour erred in his directions concerning “being knowingly concerned in the importation”.

75 During the course of the trial, counsel were provided by his Honour with a draft of the relevant direction, and were invited to indicate any amendment which they sought. In the course of the submissions which followed, reference was made to the decisions in R v Lam (1990) 46 A Crim R 402 and R v Doney (1988) 37 A Crim R 288.

76 In Lam the Court of Criminal Appeal quoted with approval portions of the directions which had been given by the trial judge, including the following passage:

but it does not include the use, transportation or disposal of the goods after everything proximate and incidental to the importation has been completed.

77 His Honour included this direction, save for the part in italics. However he provided examples of conduct that could involve being knowingly concerned in the importation both before and after the arrival of the goods. It was the inclusion of that portion of the summing up, particularly that relating to post arrival events which, it is now submitted, gave rise to error.

78 The direction which was given needs to be considered in full. It was as follows:

“Knowingly concerned in, this is the element of the offence which is at the heart of the dispute in this trial. Firstly, what does it mean to be concerned in an importation? The concern to which the section speaks is not concern personal to the accused in the sense of being in his mind, but it is a concern which can be demonstrated objectively by reference to his association with the importation. It must be shown that he is concerned in, not just concerned about, the importation. A person would not be guilty of the offence of being knowingly concerned in an importation merely from his knowledge of the importation and his state of mind. Before he could be convicted, he would have to do something to connect himself with or involve himself in the importation.

To be concerned in an offence means to do something which involves a practical connection with the offence and all that is involved in the offence. Merely to stand by with knowledge of an importation and to do nothing is not to be concerned with it. However, if a person waits with knowledge with a view to doing something to facilitate the importation, or do something concerned with the importation that would amount to being knowingly concerned in the importation. These things must be done before or during the importation, that is, before or during all the things that are involved in importation.

The importation is the whole process of making available in Australia goods from overseas. It includes all that is incidental or proximate to the act of importation. That is, the importation does not finish the moment the goods are landed or even the moment they are cleared through customs, but extends to all matters and events which are directly related or proximate or incidental to the importation. That is, to the whole process of making the goods available in Australia. Importation is the continuing process or venture and extends to both sides of the actual act of importing to all matters which are directly related or proximate or incidental to the act of importation.

The venture or process of the importation can begin before the narcotic goods are placed aboard the craft or vessel by which they are brought into Australia and can continue after the act of importation. For example, prior to the actual act of importing narcotic goods into Australia from overseas, the process or venture of the importation can include such things as the payment for the narcotic goods, their packaging and concealment and their delivery to a courier or a freight forwarding agent or craft or vessel and their transport into Australia. Similarly, after the actual act of importing narcotic goods into Australia, the process or venture of the importation can include such things as picking up the narcotic goods following their arrival in Australia, delivering items to another person or elsewhere and packing the narcotic goods, and whatever is necessary to enable the recovery of the narcotic goods after their actual importation into Australia in order to make them available in Australia, for example for distribution to the markets for which they are intended.

Concern in an importation can commence at a time when it is apparently broken down and where efforts are being made to bring it to fruition. The part played by the accused of being knowingly concerned must be played before or during all that is involved in such importation. He must be implicated or involved in the sense of having something to do with the importation, and the importation includes all that is incidental or proximate to the act of importation. Once the importation has been completed, he cannot therefore be knowingly concerned in that importation.

How far the process or venture of the importation extends will depend upon the particular circumstances. However, it will extend to all that is directly related or proximate or incidental to the act of importation. It will not extend to conduct or acts that are not directly related or proximate or incidental to the act of importation.

To be concerned in the importation means to be involved in or take part in the importation in the sense of doing something to further or facilitate in some way the venture or process of the importation. Such involvement or participation must occur during the venture or or process of the importation and is not confined to doing something physically or acting to further the actual importation but also encompasses other conduct that contributes to the furtherance of the venture or process of the importation. A person who merely stands by with knowledge of an importation and does nothing is not concerned in the importation, but if the person has been standing by with such knowledge for the purposes of doing something to further or facilitate the importation process or venture, that person would be concerned in the importation.”

79 His Honour continued:

“There is an issue in the case as to the scope and duration of the importation with knowing concern must be shown, that is, as to when the importation may have ceased or terminated. The time will be reached when involvement with the drugs and their passage through the Australian community cannot properly be categorised as knowing concern in the importation…The question of when an importation may or may not have ceased or terminated in all of the circumstances is a question of fact for your decision within the meaning of what is an importation in the light of these directions.”

80 In my view these directions were unexceptional. They sufficiently explained what was involved in the offence, and clearly identified the critical issue in so far as the Appellant was concerned.

81 This ground is not made good.

Ground 5 – his Honour erred in playing to the jury a recording of the whole of his summing up during the deliberations of the jury.

82 The recording was supplied following a request by the jury for a copy of the transcript of the summing up and following a further request for them to listen again to the summary of the Crown and Defence cases. As the summing up had been sound recorded but not taken out, his Honour had the tape of the whole summing up played.

83 In R v Taousanis [1999] NSWSC 107, Sperling J held that a Judge had a discretionary power to make available to a jury a copy of the transcript of any part of the record of the proceedings conducted in their presence, including a transcript of the Crown and Defence opening addresses. In R v Bartle [2003] NSWCCA 329, this Court held that there had been a miscarriage of justice resulting from the refusal of the trial judge to comply with the jury’s request for a copy of the transcript of the closing address of two of the defence counsel.

84 Faced with these decisions Counsel for the Appellant accepted that, in an appropriate case, where requested, the trial judge could properly provide the jury with a copy of a transcript of the summing up or arrange for it to be replayed to them. The error which here occurred, it was submitted, was in doing so in a case where the summing up was, so it was argued, unbalanced and unduly favourable to the Prosecution.

85 For the reasons advanced in relation to the additional ground of appeal concerning the balance of the summing up for which leave was sought during the hearing of the appeal, and to which I will next turn, I am unpersuaded that the foundation for this submission has been made good.

86 The discretion which his Honour exercised was appropriate for a case which was lengthy, and involved two Appellants, and it served to reinforce for the jury the issues involved for each accused and the legal principles by which they were to be resolved. Moreover it followed several requests by the jury for assistance.

87 This ground is not made good.

Additional ground of appeal – the summing up of the learned trial Judge was not balanced and leant too far towards the Crown

88 This ground depends upon the proposition that twice as much attention was paid by his Honour, in the summing up, to the Crown case as to the defence case. In support of that proposition the Appellant relied upon an argument that a lack of balance was demonstrated by the fact that his Honour devoted 21 pages of the summing up to an outline of the prosecution case and only 10 pages to the defence case. Reference was also made to the fact that his Honour, when dealing with the Crown case, made several references to the observations in the course of the conversation between Louis and Joseph Sukkar concerning the Appellant eating some of the tablets on 24 November, and then made only brief mention of it when outlining the defence case.

89 The replaying of the summing up, it was contended, doubled the imbalance, although it is to be noted, no objection was taken to the summing up when first given.

90 In order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety, and in the context of the issues and the evidence led in the trial. Any attempt to measure the balance by reference to a mere numerical comparison of the pages devoted to the Crown and to the defence respectively, is valueless and has been held to be such. In R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 the Court (Gleeson CJ, Kirby P and Lusher J) said at 56:

“It is not the length of the time devoted to the cases of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the Appellate court must review or safeguard.”

91 As was observed in R v Williams (1990) 50 A Crim R 213 at 214, a summing up:

“should involve no more and no less than a clear and manageable explanation of the issues which are left to the jurors in the particular case before them. There is no need to venture beyond a clear statement of the relevant legal principles as they affect the particular case and against which they are to apply their decisions on the factual issues which arise”.

Chai

v The Queen

R v Meher

92 As Hunt J (as he then was) said in R v Tillott (1991) 53 A Crim R 46 at 51:

Alford v Magee

93 This does not necessarily require an exhaustive reiteration or analysis of the entirety of the evidence which has been led, or even an analysis of all of the conflicts in the evidence (R v Meher, Supra at [77]), so long as the critical evidence is identified, and the cases of the Crown and the defence in relation to the issues are identified and summarised in a fair and meaningful way. As Brennan J observed in B v The Queen (1992) 63 A Crim R 225 at 229, citing Stokes v The Queen (1960) 105 CLR 279 at 284, a summing up must exhibit a judicial balance so that the jury is not deprived “of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”. See also Green v The Queen (1971) 126 CLR 28 at 34; Pemble v The Queen (1971) 124 CLR 107 at 117-118 per Barwick CJ; R v Schmahl [1965] VR 745 at 748 cited with approval in Regina v Tomazos NSWCCA 6 August 1971 and Regina v Malone NSWCCA 20 April 1994, where Blanch J said:

“What is of paramount significance in assessing a summing up is to determine whether the defence has been fairly put thus allowing a jury properly to consider the issues raised on the accused’s side. If a jury is not given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice.”

94 If a judge does refer to the evidence in relation to a crucial issue, then there will be an imbalance in the summing up unless there is reference to the competing versions, and the competing considerations, including inferences arising therefrom: Domican v The Queen (1992) 173 CLR 555 at 560-561, R v Zorad (1990) 19 NSWLR 91 at 105 and R v Hannes (2000) 158 FLR 359 at 377.

95 As the decisions in R v Courtney-Smith (Supra at 55), R v Broadhurst [1964] AC 441 at 462 and R v Meher (Supra at [93]) show, where there has been a miscarriage of justice by reason of a lack of balance, that deprived the Defendant of a fair trial, then the Appellate Court must intervene and order a new trial.

96 Upon my reading of the summing up, I am unpersuaded that his Honour failed to comply with these requirements. Sensibly, having regard to the length of the trial, his Honour elected not to read slabs of evidence from the witnesses, or to read from the very many recordings that were in evidence. Rather he identified, in a summary way, the aspects of the evidence upon which the Crown and the Defence respectively relied, in the light of the way that their cases were presented.

97 The summing up was relatively short, but it was precisely focussed, and so far as I can see it did not omit or understate any aspect of the defence case. His Honour was careful throughout not to comment on the evidence in a way that might have been seen to advance or undercut the case of either party. He provided all of the customary directions, including conventional directions in relation to circumstantial proof, good character, avoidance of propensity reasoning and the potential unreliability of the evidence of the accomplice Shepherd, and lies. He correctly explained the law in relation to the offence charged, and he identified the one issue that was alive, namely whether the Appellant became knowingly concerned in the importation of ecstasy which was undeniably established, while it was still in progress.

98 The preponderance of the time taken during the hearing was occupied by the Crown case, and the Prosecution address involved an analysis of the events in which the Appellant had been actively engaged and of the conversations attributed to him. The defence depended significantly upon identifying conversations or events in which his participation was not established, and in providing explanations of why he had made the telephone calls from 1 December onwards and of what he had been doing on 2 December. The inevitable difference in detail attaching to those circumstances, and the fact that it was the Crown which had to make the running, if it was to satisfy the onus of proof, necessarily meant that more time needed to be given by his Honour to the Crown case than to the defence case.

99 In my view, the summing up was comprehensive, and correct, and reflected a proper balance, a circumstance which is only confirmed by the fact that experienced trial counsel did not make any complaint about it or seek any redirection.

100 This ground is not made good.

Ground 6 – The verdict was unreasonable or cannot be supported by the evidence

101 It was the Crown case, based upon inference from circumstantial evidence that the Appellant had been knowingly involved in the importation prior to 24 November. Alternatively its case was that the importation was still in progress up to 5 December and that the Appellant was knowingly concerned in it from 24 November.

102 This ground requires the Court to make its own examination of the available evidence, in order to determine whether, making due allowance for the advantage which the jury had in hearing and seeing the relevant witnesses, it considers that, on the whole of the evidence, the jury ought to have entertained a reasonable doubt as to the guilt of the Appellant: M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. This is a question of fact: M v The Queen at 492. In the present case it very much turns upon an analysis of the listening device and telephone interception material, and of the surveillance evidence, along with a consideration of the Appellant’s evidence in respect of the assessment of which the jury had a distinct advantage over us.

103 Although the intercepted conversations occupy 519 pages of transcript, there is little alternative other than to extract some of the salient passages, and to consider them in the context of the events which occurred, in particular between 24 November and 4 December.

104 The available evidence relates to the following matters:

24 November

(b) The attendance of the Appellant at Consett Street commencing at 12:22, when he was joined by Joseph Sukkar and later by John Choi, and where he remained for four hours, a period that would hardly be consistent with his presence having been confined to seeing the house, which he had just purchased, for the first time;

(c) The unloading of the columns from the container in which the Appellant participated during that afternoon, when they were moved into a garage, and later to a garden shed as captured by video surveillance.

(d) The departure at 4:23 PM from the premises of the Appellant and Choi who then drove separately to Strathfield where they were observed meeting initially at a cafe, and later at a restaurant.

(e) The return of the Appellant to Consett Street for a short time between 6:23 PM and 6:29 PM that day;

(f) The telephone conversation, at 18:37:48 in which Choi advised Louis Sukkar, after referring to the possibility of Customs being tipped off, and of someone running off with the goods, that he should “get rid of that shit…in your house”, being consistent with Choi having been advised by someone that afternoon of the substitution;

(g) The evidence of Louis Sukkar reporting to Joseph Sukkar, in a conversation beginning at 19:38:05, that the Appellant and he had each eaten some of the tablets and found that “they are nothing”, something which Louis would have been unlikely to have reported unless it had, in fact, occurred, and something which Louis or Joseph would not have expected the Appellant to do, unless he knew what was expected, and was himself involved in the enterprise;

(h) The realisation on 24 November, as appears from the calls between Louis Sukkar and “Shane” at 19:14:22 and 21:00:58 that there had been a substitution of “coloured tablets”, or “sweets” and that there were also “some real ones in there…sprinkled among them”;

25 November

(i) The understanding on 25 November, as evidenced by the telephone calls between Louis Sukkar and Joseph Sukkar at 11:26:21 that the overseas connections were intending to travel to Australia, and would wish to examine the columns; the arrival (at 1700) of both Louis Sukkar and the Appellant at Consett Street where they remained for 49 minutes; the conversation commencing at 18:37 between Joseph and Louis Sukkar in which the former arranged to come past to collect some of the tablets to show to someone who had indicated that maybe they could do something if they were the right price; his arrival at 18:56 at the premises; the observation at 19:35 of Joseph, Louis and the Appellant entering the rear garden shed where the columns were located; and the call commencing at 20:32:44 which Joseph Sukkar made to Jeff (in Europe) in which there was a discussion as to whose side was responsible for the missing tablets;

26 November

(j) The attempt commencing this day, to bring together the paperwork in relation to the importation, involving telephone conversations between Louis Sukkar, Choi and Prasad, following a conversation between Louis and Fred Nassif concerning the loss of $7 million worth of stock, and the availability of a small amount of stuff that they could talk about later;

(k) The presence on the same day of the Appellant at Consett Street between 14:49 and 15:54, his return at 17:13, and the arrangements made by phone at 17:19:06 for Joseph to come by the premises, where he was later observed, seated in the backyard, talking with Louis Sukkar and the Appellant;

27 November to 30 November

(o) The discussions during these conversations about contacting the company to which the container was delivered in Brisbane, about going to Brisbane to examine the remaining boxes, checking the screws in the boxes, and examining the paperwork, in an attempt to find who had the original tablets, in the course of which various possibilities were explored including the European end, Choi, and the government.

1 December

we

“now the P&O port that means someone signed to pick it up from the port”.

These passages are consistent with the Appellant already knowing that the drugs had been imported via a P&O vessel, that he had sighted at least one document that Choi had provided, and that people from the European end were expected to arrive in Sydney.

us

we

us

we’ll

us

we

we’re

we

we we’ll

we’ll

ourselves

we

ourselves

we’ll

that connection

ourselves

this connection

another connection

our

we’ll

our

we

us

we

us

we

we’d

M2 No they’re arriving next week Monday Monday evening they’re here”

us

we’ve

we

us

M1 Yeah

M2 Now I just I know it was delivered at about shortly before 9am on the 23rd but I don’t know who accepted delivery of the goods

M1 Um well we we gave him the we faxed through the handover sheet um I faxed it through on (wds) I faxed the handover to STEVE SHEPHERD”

Thereafter Messina advised the Appellant that he would obtain a report from the transport company and would fax through a copy of the handover agreement showing Shepherd signing for the goods;

we

“M3 Do you know who MAX MESSINA is
M1 No
M3 That’s the bloke apparently from intergroup shipping
M1 Yeah
M3 He sounded funny on the phone LOUIS
…
M1 I don’t know any of those people JOHN used STEVEN
M3 And you confirmed with P and O the port that it left the port on the twenty third
M1 Yeah definitely
…
M3 Well that guy said he got a STEVE um SHEPHERD
M1 Yeah that’s the guy that’s the guy that works in the warehouse that’s the guy that owns the warehouse
…
M3 Well he signed for the goods
…
M1 I never met him but he was an Aussie guy and his name was STEVE
M3 Yeah he signed for it
M1 I presume that’s him yeah
M3 And they’re going to fax me the stuff on Monday
…
M3 Is there any possibility that these people can get into P and O in and out before in between the sixteenth and the twenty third somehow
M1 -Sighs- You know I I don’t know those sort of things STEVEN I really don’t I’ve had nothing to do with this sort of stuff before I wouldn’t think so you know ‘cause I no shit it had to go into quarantine it went to quarantine on the twenty first and it had
M3 Did you confirm that with quarantine
M1 It’s on it’s on the paperwork there
M3 I know forget the paperwork but did you confirm it
M1 No no no
M3 Well we need to confirm with quarantine that they actually accepted the goods and fumigated them on that date”

154 I would accordingly propose the following orders:

1. Appeal dismissed;

2. Crown appeal against sentence dismissed;

3. Leave granted to the Appellant to appeal against sentence;

155 HIDDEN J: I agree with Wood CJ at CL.

156 SMART AJ: The facts and circumstances have been stated in the comprehensive judgment of Wood CJ at CL.

157 I agree with the Chief Judge that the evidence was not sufficient to establish beyond reasonable doubt that prior to 24 November 2001 the appellant was knowingly concerned in the importation of narcotic goods consisting of not less than a commercial quantity of ecstasy tablets. The critical question is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was knowingly concerned in an importation from 24 November 2001 to 5 December 2001 or part of that period. These principles emerge from the authorities.

Forbes v Traders Finance Ltd,

R v Lam

Lam.

R v Courtney-Smith

(No 2)

R v Courtney-Smith (No 2).

R v Courtney-Smith

(g) The concern does not have to be made manifest in a physical sense while the importation is taking place. It is sufficient if the "concern" is manifested in the venture which centred upon the importation.

R v Lam.

R v Leff

Leff

(k) Where narcotic goods are imported into Australia in the voids of pieces of machinery or equipment the act of importation embraces the removal of those narcotic goods from such pieces of machinery and equipment and attempts to do so.

(l) As importation is a process or venture, even where the authorities have intervened and removed most of the narcotic goods from the pieces of machinery and equipment, but left some of the narcotic goods and added inert substances or tablets, removal of such goods by a person and attempts to remove them amounts to being concerned in the importation. Usually, the machinery or equipment has been delivered to the consignee or his, her or its nominee after the narcotic goods, or most of them, have been removed. Part of the importation is the machinery and equipment in which the narcotic goods have been secreted.

158 The facts in the present case extend the concept of being concerned in an importation close to its limits, putting aside temporarily the concept of "knowingly".

159 The importation was intercepted by the Australian Government Authorities in Brisbane and most of the narcotic goods (ecstasy tablets) were removed from the 48 columns of the portable coolroom, and inert tablets (described as lollies) were substituted. The equipment was transferred to a Brisbane warehouse. Part of the coolroom, including the columns, were transported by road to the appellant's newly acquired house at 84 Consett Street, Concord under the supervision of Louis Sukkar and John Choi, arriving there during the morning of Saturday, 24 November 2001.

160 The appellant arrived at the house shortly after noon on 24 November. This was his first inspection of the house he had bought and in which his brother, Louis, his brother's girl friend, Michelle Royal, and a young Asian student, a boarder, lived. During the afternoon the hired truck was unloaded by Louis Sukkar, assisted by the appellant and the student. The coolroom columns which contained the tablets were placed in the garage.

161 During the afternoon Louis Sukkar became aware that the tablets in the columns were not ecstasy tablets and telephoned his brother, Joseph Sukkar with that news. Later in the afternoon Joseph Sukkar arrived and after he arrived the columns were shifted from the garage to a garden shed and the coolroom doors were unloaded from the truck and put in the garage.

162 At 3.12pm Louis Sukkar left 84 Consett Street, drove around the corner and met John Choi. The appellant contended that that was so Louis Sukkar could tell Choi that the appellant was there and alert Choi not to say anything about the importation. Meanwhile, in response to a message left by John Choi on the appellant's mobile telephone, he telephoned Choi and they had a brief discussion about something having nothing to do with the importation. No reference was made to the importation or to the cargo having arrived or being unloaded. The appellant asked Choi if he was coming their way and Choi told the appellant that he was in Croydon. Choi visited 84 Consett Street, but did not inspect the cargo in the garden shed. Shortly after 4.00pm the appellant and Choi went to Strathfield, in separate vehicles. They conferred there. They also spoke to people in and about coffee shops and restaurants who appeared to have nothing to do with the importation. Choi was a long time client of the appellant. After 6.00pm the appellant arrived back at 84 Consett Street, stayed for six minutes and left. It cannot be safely inferred that the appellant and Choi went to Strathfield to talk about the importation. If they had wished to do that 84 Consett Street was a preferable venue.

163 As soon as the appellant left 84 Consett Street, Louis Sukkar telephoned Choi. Later, about 1938 hours, Louis telephoned Joseph and remarked:

"It's nothing … I ate about three of them. There's nothing and ah Michelle ate one. Stephen also ate two there's nothing at all."

164 With some doubt but taking the evidence the Crown relied upon at its highest I agree that this conversation was admissible, but when regard is had to the whole of the evidence it provides a tenuous and insubstantial base from which to conclude that the appellant was knowingly concerned in the importation. It is appreciated that this was one of a series of matters relied upon by the Crown.

165 During the period from 25 November 2001 until the evening of 1 December 2001 there were many conversations between Louis Sukkar, Joseph Sukkar and the appellant. In every conversation between Louis Sukkar and Joseph Sukkar they spoke about the importation but when speaking to and with the appellant the importation was never mentioned. There were many conversations between Louis Sukkar and others and Joseph Sukkar and others when the subject of the conversation was the importation.

166 During the period mentioned, Louis Sukkar endeavoured to obtain all the "paperwork" as to the importation. Joseph Sukkar also tried to work out what had happened. He kept in touch with the European suppliers and contacts and tried to mollify them. Initially, he suspected that the substitution had occurred in Europe.

167 On 27 November 2001 Choi was at 84 Consett Street from 3.53pm to 4.11pm and gave documents to Louis Sukkar. After Choi left there were conversations between others about documents. At 4.35pm there was a somewhat heated conversation between Louis Sukkar and Choi about the money that had been lost. At 5.11pm Choi telephoned the appellant and spoke to him about a wholly different matter. Nothing was said in this conversation about the importation, the documents or the loss of any money. In a further telephone conversation at 6.46pm between the appellant and Choi nothing was said about those matters. The appellant was at 84 Consett Street on Tuesday 27 November 2001 between 8.11pm and 9.57pm and talked with Michelle Royal, a young lady called Lisa, and his brother Louis about a number of matters but not the importation. He telephoned Peter and arranged to go riding on the following Sunday. Despite the variety of subjects covered nothing was said about the importation, the documents or the lost moneys.

168 At 10.24pm and 10.25pm, well after the appellant had left, there were two telephone calls between Louis Sukkar and Choi concerning documents.

169 The appellant had visited 84 Consett Street on Sunday, 25 November and Monday 26 November but did not visit on 28 and 29 November. He visited on Friday 30 November. Early that day Joseph Sukkar had spoken with the European suppliers. Later in the morning Joseph and Louis discussed the European telephone call. Joseph spoke to the appellant at 2.23pm and 5.11pm. There was no mention of the importation or anything connected with it.

170 Given the closeness of the Sukkar brothers it is very surprising neither Louis nor Joseph said anything to the appellant about the importation or anything connected with it.

171 On Saturday, 1 December 2001 the appellant arrived at 84 Consett Street with Louis and Joseph at 1.11pm. Later on Malek Jarjo arrived and there was a conversation about diamonds.. After that conversation Joseph and Jarjo left. Later on the appellant washed his car. He spoke to Louis but did not speak about the importation. At 5.01pm a conversation took place between Louis, Joseph and the appellant. There was considerable talk of family problems; a family barbecue was arranged that night at Joseph's place.

172 The importation was the constant subject of discussion between all those who were knowingly concerned and there were many such conversations. There was never any reference to the importation in any conversation with the appellant. It was submitted by the appellant that up to this point he knew nothing of the importation.

173 In his reasons the Chief Judge has summarised the available evidence in support of the Crown case against the appellant. Some of the material relied upon by the Crown is based on the activities and remarks of other members of the common enterprise. While Joseph, Louis and Choi were aware of the importation of narcotic goods the evidence from the many intercepts and the listening devices shows that the importation and matters connected with it were not mentioned in conversations with the appellant. Joseph, Louis and Choi must have abstained deliberately.

174 The appellant's attendances at 84 Consett Street from 24 November to early evening on 1 December 2001 are not surprising considering that he had recently purchased that property, that the brother who was closest to him lived there, that he had recently broken up with his girl friend and was at a loose end and the agreement that Louis would live there rent free and renovate the property. I have not overlooked that the truck containing the columns was driven to 84 Consett Street, that the appellant assisted in unloading and placing the columns in the garage and later assisted in shifting them to the garden shed.

175 I do not think that any inference adverse to the appellant can be drawn from his visit to a coffee shop (or shops) and restaurant at Strathfield with Choi and speaking to Choi and other people there. What was said is not known and in subsequent conversations between them prior to the evening of 1 December 2001 neither the importation nor anything connected with it was discussed.

176 The Crown also relied on what the appellant is recorded as saying during the evening of 1 December 2001 and subsequently and what he did as showing the extent of his knowledge and previous engagement in the enterprise.

177 The Crown placed reliance upon a series of conversations which it claimed indicated that the appellant was well aware of the drug operations of the Sukkar family, for example, the appellant's remark to Louis about coolrooms "All right so he (Choi) knew from last time" it was coolrooms. There were the further comments by the appellant, "… we'll do it ourselves next time its all right" and about Choi having "overstepped the mark this time". These remarks, along with others, provided some basis from which the Crown could argue that the appellant had been involved, as had Choi, in past importations of tablets using coolrooms and intended to involve himself in further importations. This was coupled with the use of words such as "we" and "us". All these statements were said to make it difficult to accept lack of knowledge on the appellant's part while the importation was in progress. Again, the admission of this evidence does not effectively prove the Crown case beyond reasonable doubt. The Crown is trying to read too much into some relatively small segments of the evidence and not taking the evidence as a whole.

178 By the evening of 1 December 2001 despite extensive inquiries Joseph and Louis had not succeeded in ascertaining what had happened, that is how, when, and by whom the bulk of the ecstasy tablets had been removed. It was the defence case that at the barbecue the appellant was told of the importation, the removal of the tablets and what had happened so far as Joseph and Louis were aware. The appellant was told of the steps taken to date and asked to assist. The Crown relied upon the terms of the conversations held by the appellant that evening with Choi, who was in China, from about 2049 hours onwards as showing the extent of the appellant's knowledge of the venture, particularly having regard to the familiarity with which he discussed the matter with Choi. The appellant held conversations with others during the evening.

179 The Crown relied on the use by the appellant in his conversations of the words "we", "ourselves" and "us", but this should not be regarded as significant. Solicitors and others often use the plural to cover the interests or people they represent.

180 Choi was a client and business associate who also knew the appellant's brothers. In such a context a loose general word would naturally be used and it would be odd for the appellant to differentiate between his brothers and himself. Precision of expression is not to be expected in such circumstances. From the conversation at 2049 hours it appears that the appellant was worried about the attitude and actions the Europeans might take and questioned Choi extensively about the movement of the goods in Brisbane and the documents and whether there was any gap when the goods could have been substituted.

181 After a further conversation with Choi, contacting the Customs broker (during which the appellant misled the broker as to his name), another conversation with Choi and speaking with his brothers in a telephone call at 2159 hours, the appellant made a further call to Louis at 2204 hours. By this time the appellant had deduced that there was a forty hour period in which the goods could have been substituted. After his discussion with Louis the appellant telephoned Choi at 2211 hours and explained, amongst other things, that there was a period of forty hours after quarantine when the goods were sitting in the ports before "we" got them. The appellant expressed the view, "something smells". Choi commented that the appellant was saying that "they" (possibly people associated with the Customs broker or Intergroup Shipping), had changed the goods. The appellant replied, "Something like that because they're very badly packed" and "You can see it's been done it's been very rushed …". The Crown relied on the appellant giving Choi instructions.

182 In a conversation with Louis at 2223 hours the appellant expressed his suspicion that Choi and his friends working in conjunction with the Customs broker intercepted and removed the tablets. The appellant explained that when a person fills up a column with foam it expands over 24 hours. It is sanded back and a little cover is put over the foam. The appellant added, "some of the packaging here was bulging out." If the packaging was bulging out that could have been readily seen as the columns were being transported. That does not involve looking inside the columns.

183 A detailed examination of the evidence persuades me that it was not open to the jury to be satisfied beyond reasonable doubt that between 24 November and the evening of 1 December 2001 the appellant was knowingly concerned in the importation of narcotic goods, I regard much of the material on which the Crown relied as equivocal and readily explicable.

184 However, the evidence of what occurred from the evening of 1 December 2001 to 5 December 2001 is in a different category. In approaching that evidence I bear in mind that importation is a process or venture and that a person can become involved in it even where it has apparently broken down and he makes efforts to pursue and try to enliven it.

185 During the evening of 1 December 2001 the appellant made determined efforts to trace the course of events after the landing of the goods and to ascertain who was responsible for the substitution and to recover the goods or otherwise make good the loss which had been incurred. As a result of his activities his suspicions fell on Choi and his Brisbane associates.

186 It was the appellant's case that on learning of the importation he wanted everything connected with it removed from his house and pressed that desire on his brothers.

187 On Sunday, 2 December Louis rented a truck which was initially driven to Joseph Sukkar's home in Croydon, arriving about 10.25am. About 10.28 Joseph called the appellant and asked him to come and help them at Louis".

188 About 10.38am the appellant drove to 84 Consett Street. About 10.42am the three brothers participated in a conversation. They contemplated what might be in store for Choi. During that conversation the appellant said

and

"we'll do it ourselves next time."

189 The reference to "We'll get it back" meant getting Choi's share back.

190 At the end of the conversation this was said:

191 The appellant, Joseph and Louis proceeded to open the other end of some of the columns looking for more drugs and sorting the tablets into ecstasy tablets and inert tablets. About 1049 hours the appellant gave Paul Sukkar directions for getting to 84 Consett Street.

192 From about 10.50am onwards the four brothers opened columns and sorted tablets. Joseph proposed that they open one column at a time and empty the contents into bags. The appellant replied,

There's some in doubles we got to check 'em again which ones did we miss."

193 There was further discussion between the four brothers as they worked away at checking the columns and ensuring that they were empty. An unknown male joined them.

194 About 12.02 hours Louis remarked "There's over two hundred thousand dollars in there he's not seeing any of that." The appellant said "It's fifty thousand E's that's pretty good." He later referred to five thousand.

195 In a conversation about 12.52 hours that day as to Choi the appellant remarked, "I'm the one who that put them on to him", and confirmed the remark of Paul Sukkar, "don't you know what we have been doing through the last five to six years you f--- animal." The appellant remarked that Joseph could have made "a million and you guys would have made three or four hundred thousand selling them." The appellant said, "We don't want the goods and you give us the the money go sell 'em."

196 The Crown also relied on comments made by the appellant at 1425 and 1532 hours as to Choi's insistence that the goods go to Brisbane where it's easier because there is less checking and as to his suspicions about the shipping company.

197 About 1632 hours there was conversation between the four brothers and the unknown male about the experiment of dissolving some tablets in water. About 1737 hours there was a discussion involving Joseph, Louis, the appellant and an unidentified male in which there was some unintelligible conversation seemingly as to the value of the tablets.

198 The empty columns were taken by truck by Paul Sukkar to a storeroom in Granville. The substitute and genuine tablets had been separated. Louis Sukkar was to remove these from 84 Consett Street but failed to do so.

199 About 1558 hours on 3 December 2001 in a telephone conversation between the appellant and a man called Michael there was reference to the big swap which had recently taken place. The appellant said, "… as soon as he gets back I'll get them." The appellant commented that "they" had access to them [the goods] for two days before they gave it [the goods] to us. The "they" appears to be a reference to Choi and his Brisbane associates.

200 About 1837 hours on 3 December 2001 Choi telephoned the appellant and discussed the importation and the documents. Choi stated, "nobody can access that yard besides P and O people." The appellant said that he did not want Choi to call anyone or anything and continued, "just try get back ASAP 'cause those people are here get those documents for us I don't want to call anyone I want to back away from it mate too hot for me and too dirty for me go away I don't want to do it anymore."

201 None of the Sukkar brothers and Choi realised that their telephone calls were being intercepted and recorded. There was no attempt to speak in code. There are relatively small snatches of conversations which are capable of being regarded as suggesting the involvement of the appellant in the importation prior to 2050 hours on 1 December 2001 and there are two videos of 24 November 2001 and 2 December 2001 on which the Crown relied. The video of 24 November 2001 shows the unloading of the van and the stacking of columns and doors in the garage. It also shows Choi arriving and Choi and the appellant leaving to go to Strathfield and at Strathfield, and the appellant returning to 84 Consett Street. The video of 2 December 2001 shows the Sukkar brothers attending to the columns and loading them and the doors onto a van. The video did not throw any further light on when the appellant first became knowingly involved in the importation.

202 By way of a strong counterbalance the Court has the unusual benefit of the terms of the conversations between Louis, Joseph, Choi and the appellant. In this, the Court is not dependent on the credibility of those speakers. The recordings reveal that prior to 2050 hours on 1 December 2001 while the importation was freely and frequently discussed between Joseph and Louis and Choi and Louis it was never mentioned in this period when they were speaking with the appellant. This reveals an incredible state of affairs if the appellant was knowingly involved prior to 2050 hours on 1 December 2001. Further, Louis went to speak to Choi away from 84 Consett Street prior to him arriving at the site. The inference is that Louis did not want Choi to reveal the correct position as to what was happening to the appellant. It is possible theoretically that the appellant was knowingly involved from 24 November 2001 or prior to that date. However, if that were so, some mention of this in some form would have been made in the many telephone conversations with him. Taking all the Crown evidence together it was not along with the remainder of the evidence open to the jury to be satisfied beyond reasonable doubt of the appellant's knowing involvement prior to 2050 hours on 1 December 2001.

203 It seems that when Louis and Joseph were unable to resolve what had happened that the appellant was called upon to assist. That was in the evening of 1 December 2001 and when he first became knowingly involved in the importation. Initially it was not a physical involvement but it became physical as well as managerial on 2 December 2001.

204 Whatever may have been the true position prior to the evening of Saturday, 1 December 2001 the evidence establishes that as from at least 2050 hours on 1 December 2001 the appellant became knowingly concerned in the importation of the narcotic goods. Indeed, he became intimately involved as he sought to establish what had happened to the goods and to either recover them or procure compensation for their loss. Late in the evening of 1 December 2001 the appellant procured the assistance of Paul Sukkar, his brother, to remove the columns from 84 Consett Street. On the Sunday the appellant became involved in opening the columns and the pipes encased in the columns to check whether all tablets had been removed, removing any remaining tablets, sorting the tablets, overseeing the removal of the columns and arranging for Louis to remove the tablets from 84 Consett Street. The appellant appreciated the danger of any of these items or goods remaining at the house he owned. The conversations on 3 December were revealing both as to the appellant's involvement, his attitude to Choi and his efforts to extricate himself and his family from the positions in which they found themselves.

205 On the basis of the evidence as to what occurred from 2050 hours on 1 December 2001 onwards there was sufficient evidence entitling the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of the charge of being knowingly concerned in the importation of narcotic goods.

206 I have earlier expressed my agreement with the conclusion reached by the Chief Judge on Ground 1. I also agree with the conclusion reached by the Chief Judge on Ground 2. The Crown is entitled to rely on the conversations in questions which occurred on 1, 2, 3 and 4 December 2001 and to put its case at the highest. The conversations are capable of providing some support for the Crown case and in rebuttal of the defence case, This does not mean that the conversations are determinative.

207 I agree with what the Chief Judge has written on Grounds 3, 4 and 5 and the additional ground of appeal and his rejection of those Grounds. As to Ground 6, while I agree with the Chief Judge's conclusion I have done so on a narrower basis. The appeal against conviction should be dismissed.

208 The judge sentenced the appellant on the basis that the depth of his knowing concern was greater than that which I think the evidence reasonably supports. My view as to the proven extent of the appellant's knowing involvement (or concern) in the importation disposes of the Crown appeal against sentence.

209 If the wider basis upon which the Chief Judge would uphold the conviction is correct, and there are substantial grounds in support of that approach, the appellant's appeal against his sentence should be rejected.

210 On the narrower view of the appellant's offence is the sentence imposed within the permissible range? On my approach the appellant's involvement did not commence until well after the narcotic goods had been landed. The appellant's knowing involvement (as distinct from his involvement) commenced on the evening of 1 December 2001 when he undertook the task of ascertaining what had happened to the goods after they arrived in Australia and whether there were any "gaps " when the substitution could have taken place. This led to him studying the documents and speaking with his brothers, Choi and the Customs broker. Having formed the conviction that Choi and his associates were responsible for the substitution he gave consideration to the recovery of the tablets and the obtaining of compensation for the losses suffered and generally managing Choi and the situation which he believed had developed as to him. The opinion which the appellant had formed as to Choi's role in the substitution was erroneous.

211 While the role of the appellant proven beyond reasonable doubt was limited, his offence was serious. Part of his role involved eliciting sufficient facts so his brother Joseph could satisfy the European principals that he and Louis had not participated in any substitution or been guilty of any careless or underhand conduct. The appellant, once he became aware of the position, desired to have the columns and tablets removed from his property at 84 Consett Street as soon as possible, and took steps to that end. He became involved in opening and checking the columns and sorting the tablets into substituted ones ("lollies") and ecstasy tablets. He was generally active in endeavouring to recover the situation for his brothers. It was apparent that the remaining ecstasy tablets would be sold. The fact that the appellant was mistaken in his analysis of the situation and unsuccessful does not lessen his criminality.

212 Louis had been in Brisbane collecting the portable coolroom. It was Louis who lived at 84 Consett Street, drove the truck from Kempsey to that address and initiated and supervised the unloading of the columns. Louis and Joseph were the organisers and moving spirits behind the Australian end of the importation but, as previously mentioned, the evidence points to neither of them speaking to the appellant about it between 24 November and the evening of 1 December. On the evidence the appellant was not involved in the importation until well after the goods were landed. While it was ultimately left to him to find out what had happened and who had effected the substitution, the evidence does not establish that he was involved in bringing the narcotic goods into Australia or in the proposed arrangements to distribute such goods in Australia. On the other hand, when made aware of importation and substitution on the evening of 1 December, he joined his brothers in trying to salvage the operation and in handling the fall-out.

213 In my opinion, a sentence of 14 years with a non-parole period of 9 years is manifestly excessive for the limited role played by the appellant.

214 In determining the correct sentence I have had regard to the appellant's favourable subjective features as outlined by the judge. These were highly favourable. He was the youngest member of the family and the one who had made good. His career as a solicitor has been destroyed. This is a severe punishment. I have applied the terms of the Commonwealth Crimes Act. The element of deterrence is important. The appellant has allowed family loyalties to override his duties as a solicitor in upholding and obeying the law.

215 After taking a starting point of 16 years and allowing a discount of about one-third, I would impose a sentence of 11 years imprisonment with a non-parole period of 7 years.

216 I would make the following orders:

2. Leave to appeal against sentence granted

3. Appeal against sentence allowed; sentence quashed.

4. In lieu of the sentence imposed, the appellant is sentenced to imprisonment for 11 years commencing on 5 December 2001 with a non-parole period of 7 years commencing that day and expiring on 4 December 2008 when the appellant becomes eligible for release on parole.

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Citations

R v Sukkar [2005] NSWCCA 54

Most Recent Citation

Cases Citing This Decision

58

The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341

R v Glastonbury [2014] SASCFC 44

R v Tranter [2013] SASCFC 61

Cases Cited

27

Statutory Material Cited

1

R v Bartle [2003] NSWCCA 329

R v Meher [2004] NSWCCA 355

R v Quach [2002] NSWCCA 519

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CITATION:	Regina v SUKKAR [2005] NSWCCA 54
HEARING DATE(S):	22/7/04, 20/12/04
JUDGMENT DATE:	16 March 2005
JUDGMENT OF:	Wood CJ at CL at 1; Hidden J at 155; Smart AJ at 156
DECISION:	1.Appeal dismissed; 2.Crown appeal against sentence dismissed; 3.Leave granted to the Appellant to appeal against sentence; 4.Appellant's appeal against sentence dismissed.

CATCHWORDS:	Criminal law - importation of ecstasy tablets - being knowingly involved in importation - Customs and Police surveillance -controlled delivery - intercepted telephone calls and recorded conversations - extent of importation process - whether verdict reasonable or supported by evidence.
LEGISLATION CITED:	Crimes Act 1900 - s 16G
CASES CITED:	B v The Queen (1992) 63 A Crim R 225 Chai v The Queen (2002) 76 ALJR 628 Domican v The Queen (1992) 173 CLR 555 Green v The Queen (1971) 126 CLR 28 Harriman v The Queen (1989) 167 CLR 590 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Pemble v The Queen (1971) 124 CLR 107 R v Bartle [2003] NSWCCA 329 R v Broadhurst [1964] AC 441 R v Chan (2002) 131 A Crim R 66 R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 R v Doney (1988) 37 A Crim R 288 R v Hannes (2000) 158 FLR 359 R v Kwong Yue Cheung SCWA CCA 28 October 1997 R v Lam (1990) 46 A Crim R 402 R v Leff (1996) 86 A Crim R 212 R v Mai (1992) 26 NSWLR 371 R v Malone NSWCCA 20 April 1994 R v Meher [2004] NSWCCA 355 R v Quach [2002] NSWCCA 519 R v Prasad [2004] NSWCCA 293 R v Schmahl [1965] VR 745 R v Shepherd [2003] NSWCCA 287 R v Taousanis [1999] NSWSC 107 R v Tillot (1991) 53 A Crim R 46 R v Tomazos NSWCCA 6 August 1971 R v Williams (1990) 50 A Crim R 213 R v Zorad (1990) 19 NSWLR 91 Stokes v The Queen (1960) 105 CLR 279 Tripodi v The Queen (1961) 104 CLR 1
PARTIES:	Regina Steven Sukkar
FILE NUMBER(S):	CCA 2004/1918, 2004/1673
COUNSEL:	R Sutherland (Crown) B Stratton QC
SOLICITORS:	Commonwealth Director of Public Prosecutions Uther Webster and Evans

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1216
LOWER COURT JUDICIAL OFFICER:	Acting Judge Andrew