Regina v Cordero-Vidal

[2002] NSWCCA 36

Reported Decision: (2002) 128 A Crim R 543

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Cordero-Vidal [2002] NSWCCA 36 revised - 27/11/2002
FILE NUMBER(S):	CCA 60736/00
HEARING DATE(S):	22/2/02
JUDGMENT DATE:	10 April 2002
PARTIES :	Regina (Respondent) Juan Cordero-Vidal (Appellant)
JUDGMENT OF:	Meagher JA at 1; Wood CJ at CL at 2; Bell J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0018
LOWER COURT JUDICIAL OFFICER :	Stewart ADCJ

COUNSEL :	R Maidment SC (Regina) P Hamill (Appellant)
SOLICITORS:	Commonwealth DPP TA Murphy (Appellant)
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Customs Act 1901 (Cth) Evidence Act 1995
CASES CITED:	Cleland v the Queen (1982) 151 CLR 1 Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 Postiglioni v The Queen (1997) 189 CLR 295 Ratten v The Queen (1974) 131 CLR 510 R v Abusfiah (1991) 24 NSWLR 531 R v Esposito (1998) 45 NSWLR 442 R v Glusheski (1986) 33 A Crim R 193 R v Haeney (unreported, Supreme Court NSW, 13 June 1978) R v McCarthy & Ryan (1993) 71 A Crim R 395 R v Moussa [2001] NSWCCA 427 R v Roberts [2001] NSWCCA 163 R v Salgado-Silva [2001] NSWCCA 423 R v Stackelroth (unreported) NSWCCA, 3 April 1996 Regina v Donnelly [2001] NSWCCA 394 Regina v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 Regina v Wong [1999] NSWCCA 420; 48 NSWLR 340 Wong v The Queen [2001] HCA 64; 185 ALR 233
DECISION:	Appeal against conviction dismissed. Appeal against severity of sentence see paragraph 91

60736/00
MEAGHER JA
WOOD CJ at CL
BELL J


10 April, 2002

REGINA v Juan CORDERO-VIDAL

Judgment

1 MEAGHER JA: I agree with Bell J.

2 WOOD CJ at CL: I agree with Bell J.

3 BELL J: On 22 August 2000 the appellant was arraigned in the Sydney District Court on an indictment charging him that on 3 November 1999 at Sydney he imported into Australia prohibited imports (cocaine) in an amount not less than the commercial quantity. The offence is created by s 233B(1)(b) of the Customs Act 1901 (Cth). It carries a maximum penalty of life imprisonment. The appellant entered a plea of not guilty and stood his trial before acting Judge Stewart and a jury. On 5 September 2000 the jury returned a verdict of guilty.

4 On 3 November 2000 the appellant was sentenced to a term of sixteen years imprisonment to date from 3 November 1999. A non-parole period of eleven years was specified.

5 By notice of appeal dated 6 November 2000 the appellant appeals against his conviction and seeks leave to appeal against the severity of the sentence imposed on him.

6 The facts relied on in support of the Crown case may be conveniently summarised by reference to the outline contained in the respondent’s written submissions:

“On 26 September 1999 the appellant and his co-offender Salgado-Silva travelled from Spain, where each resided, to Miami, USA. On 8 October 1999 they travelled from Miami to Venezuela. On 29 October 1999 they travelled to Curacao, Netherlands Antilles and then to Amsterdam, Holland. At about 4:50 pm on 3 November 1999 they arrived at Sydney Airport on a flight from Amsterdam.
The appellant’s own accompanying luggage included a metal suitcase which contained 12.862 kilograms of 63% pure cocaine powder (totalling 8.105 kilograms of pure cocaine) concealed in two specially constructed video camera battery belts.
After the battery belts had been subjected to a preliminary examination by Customs officers the appellant and Salgado-Silva were together spoken to by Customs officers with the aid of a Spanish speaking Quarantine officer… During the conversation Salgado-Silva claimed that he and the appellant had picked up the battery belts in Amsterdam and that ‘they were bought new’. He also claimed that [false] photo identity cards found in their possession, which purported to identify Salgado-Silva and the appellant respectively as cameramen and ‘camera assist’ accredited by CCB (a Spanish company) and ‘NBC, New York’, were from the companies they worked for. Salgado-Silva asserted that they were employees of CCB and had come to film Olympic Games sites for NBC. When Salgado-Silva and the appellant were told that the battery belts had tested positive for cocaine, Salgado-Silva denied knowing what was inside the batteries.
The appellant was later interviewed by Officers of the Australian Federal Police... He gave a detailed account of how the battery belts had been posted to them in Amsterdam and how he and Salgado-Silva had together collected them from a place ‘like an agency to transport package’ in Amsterdam. He claimed not to know the identity of the person or persons who had recruited, financed and directed them to undertake the film-making assignment in which they were engaged… The appellant indicated that he wished to ‘co-operate’ with police. He denied knowledge of the concealed cocaine.
Subsequently the appellant and Salgado-Silva participated in a controlled delivery of the battery belts to a Columbian national named Ferney Soto-Sanchez which resulted in Soto-Sanchez being arrested. During this operation the appellant was present with Salgado-Silva at material times and gave the impression of being a willing though passive participant. The operation also involved telephone contact between Salgado-Silva and a telephone number in Spain used by a man named Octavio Quintero (a.k.a. Mono or Monkey).

7 The appellant and Salvador Salgado-Silva (“Salgado-Silva”) had been jointly arraigned before Stewart ADCJ on 9 August 2000 on a count charging them with importation of the cocaine. Each entered a plea of not guilty and a joint trial before his Honour and a jury commenced. Towards the conclusion of the Crown case, on 21 August 2000, Salgado-Silva sought to be re-arraigned and upon his re-arraignment he entered a plea of guilty.

8 The trial judge, over objection from the Crown, acceded to an application made on behalf of the appellant to discharge the jury following Salgado-Silva’s plea of guilty. A new trial, the subject of the present appeal, commenced the following day.

9 At the trial the evidence of the prosecution witnesses was largely unchallenged. Cross-examination was directed to demonstrating that the evidence disclosed a stronger link between the prohibited drugs and Salgado-Silva and that the appellant’s conduct would leave open a view that he had been Salgado-Silva’s unwitting companion.

10 Following his arrest the appellant participated in an electronically recorded interview with Federal Agent Turner (“the interview”) in which he denied having knowledge of the presence of cocaine inside the battery packs. He declined the services of a lawyer saying, “I consider myself innocent and I want to continue”. He gave an account that Salgado-Silva had been engaged to make a promotional film for use in the tourist industry and that he had been employed by Salgado-Silva as a camera assistant. The arrangements for accommodation and other details of the trip had been attended to by Salgado-Silva. They had filmed scenes in each of the countries they visited on their trip. The appellant asserted his belief that Salgado-Silva was also ignorant of the presence of the cocaine in the battery packs. He said that they had collected the battery packs in Amsterdam.

11 At trial it was the appellant’s case that he was a poorly educated farmer from a small town outside Seville. Salgado-Silva was related to his wife by marriage. The appellant knew that Salgado-Silva was a “video amateur”. Salgado-Silva offered him the job of acting as his assistant on the overseas trip. The appellant understood his role to be “helping him with his luggage, helping him with the material, whatever he needed”. The trip was to occupy about twenty days. The appellant was to receive two million pesetas as his payment for assisting Salgado-Silva. Salgado-Silva arranged for the appellant to be issued with a passport and an identity card.

12 Prior to departing from Madrid the appellant was introduced to a man named Quintero in a bar. On arrival in Miami the appellant and Salgado-Silva were met by Quintero’s wife. They were taken to her apartment and stayed about ten or twelve days there. It was during this time in Miami that the appellant first saw the camera equipment. It was delivered to Mrs Quintero’s apartment. Salgado-Silva did some filming while the pair were in Miami. The appellant “went behind him with the batteries … so that when they finished I could give it to them”. These were rechargeable batteries.

13 While the pair were in Miami the appellant became concerned about the length of the trip, telling Salgado-Silva that he wished to go home. Salgado-Silva insisted that they had to finish the job. They then travelled to Venezuela where they spent about eighteen or twenty days.

14 Salgado-Silva complained about the life of the batteries both while they were in Miami and in Venezuela. He told the appellant that the equipment was to be changed. This led to further delays. The appellant packed his luggage telling Salgado-Silva again that he wished to return to Spain. He had a telephone discussion with Quintero to the like effect. He said that Quintero seemed angry and threatened him during the course of this discussion. The appellant remained in Venezuela with Salgado-Silva. While in Venezuela they received new equipment including battery belts.

15 The appellant was cross-examined at considerable length concerning inconsistencies between his evidence and answers given in the interview. Significantly, the appellant said in evidence that he had been wrong when he told the police during the interview that the batteries had been obtained in Amsterdam. He was not able to explain why he had made this error.

16 The first ground of appeal contends that there was a miscarriage of justice as the result of the inability of the appellant to call evidence from his co-accused, Salgado-Silva, which tends to establish his innocence of the offence charged and which, if adduced, was likely to lead to a different result in the trial.

17 Written submissions filed on behalf of the appellant developed this ground as follows:

“At the trial, a controversy erupted over whether Salgado-Silva might be called in the defence case …. The Crown Prosecutor denied counsel appearing for the appellant at the trial permission to speak with Salgado-Silva during the course of the cross-examination of the appellant. Attempts were made to approach Salgado-Silva but these were unsuccessful. Those appearing for Salgado-Silva advised him not to assist the appellant or to speak with the latter’s legal representatives. The matter was canvassed in Court on 4 September 2000 on which day counsel for Salgado-Silva (Mr Shaw) appeared.
The learned trial judge came to the view that something improper had been done and made threats to counsel then appearing for the appellant: see AB 592, 593. Counsel for the appellant said he would not call Salgado-Silva and Mr Shaw said he would accept that statement. His Honour then said (at AB 593):
“Yes the assurance was given in open court and you accept it and with great respect whether you accept it or not Mr Silva will not be called. I make that ruling. He is excused”.
It is submitted, with great respect to his Honour, that a trial judge has no power to make such a ruling or to forbid a person charged with a criminal offence from calling evidence at his trial other than in accordance with the rules of evidence.
It is submitted that the appellant did not receive a fair trial as a result of his inability to rely on the evidence of Salgado-Silva.
Further, it is submitted the evidence of Salgado-Silva is ‘fresh evidence’ as that term is explained in cases such as Ratten v The Queen (1974) 131 CLR 510 at 516-519; Lawless v The Queen (1979) 142 CLR 659 at 675-677; Gallagher v The Queen (1986) 160 CLR 392 at 402 and Mickelberg v The Queen (1989) 167 CLR 259 at 288 and 301.”

18 The appellant sought leave to rely on the affidavits of trial counsel, Rory McCrudden; Michael Shaw, counsel for Salgado-Silva; and Salgado-Silva. In his affidavit Mr McCrudden stated:

“During the course of acting for Mr Cordero-Vidal I was instructed that Mr Salgado-Silva, a co-accused, would be able to give evidence favourable to Mr Cordero-Vidal if he was willing to do so.
I was later instructed that when my learned instructing solicitor attempted to speak to Mr Salvador Silva she informed me that he had been advised not to speak to Mr Cordero-Vidal’s legal representatives.”

19 Michael Shaw in his affidavit made on 10 January 2002 stated:

“I was the barrister representing Mr Salgado-Silva, the co-accused of the appellant herein.
The solicitors for Mr Cordero-Vidal attempted to speak to Mr Salgado Silva to discuss whether he was willing to give evidence to assist Mr Cordello-Vidal (sic).
I strongly advised Mr Silva not to speak to Mr Cordero-Vidal’s solicitors. Shortly thereafter when speaking to the legal representatives acting for Mr Cordero-Vidal I informed them that I had so advised Mr Silva and that Mr Silva did not wish to speak to them at that time.”

20 It is appropriate to refer to the trial transcript and to set out in more detail the account of events surrounding the suggestion that Salgado-Silva might be called in the accused’s case.

21 On the ninth day of the trial, Monday 4 September 2000, at a time when the accused was in the course of cross-examination, Mr McCrudden raised a matter in the absence of the jury:

“An issue arose last week on Thursday and Friday as to whether or not I could or would call the former co-accused Mr Salgado-Silva. As a result of events which occurred that excited the attentions of my friend Mr Shaw who appears here this morning and his instructing solicitor. I have no intention of calling Mr Salgado-Silva or will I. My friend Mr Shaw indicated that he accepts my word completely on that before entering court and of course so that it may be made public I’m quite content to do so in open court, the way his client of course is protected (T 297; AB585).”

22 It is to be noted that the court did not sit in the trial on the preceding Friday. The trial judge had other matters listed before him on that day. In response to Mr McCrudden’s advice relating to his determination not to call Salgado-Silva, the trial judge observed that he had been contacted at his home on the afternoon of Friday 1 September. His Honour went on to say:

“I was told that Mr McCrudden wished to make an application before 4 o’clock in this Court because he wished the subpoena to be issued for the appearance of Salgado-Silva. … I told the listing person to whom I spoke that there was no need to issue a subpoena to get Salgado-Silva here, that a section 77 order would achieve that. This lady to whom I spoke asserted that she’d already told that to the solicitor, but that didn’t seem to satisfy her and wished to have me come back so that Mr McCrudden could before 4 o’clock make an application for a subpoena. I told the person from the listing directorate to decline that invitation on my behalf without thanks.
Now I’m told McCrudden does not wish to call this person Salgado-Silva. I don’t know whether he’s here or whether he isn’t. But if he has been brought here on some wild goose chase, that is something that has to be considered. Also as Mr McCrudden has said, this has excited the interest of Mr Shaw, not unnaturally I should add. To know that at the heal of the hunt and without any sort of warning this was mooted. I ask you Mr Crown whether in fact you were apprised of any of these matters?( T298-299; AB586-587)”

23 The Crown Prosecutor informed the Court that Mr McCrudden had spoken to him on the preceding Thursday advising him that he wished to confer with his client concerning the issue of calling Salgado-Silva in the defence case. He sought the Crown Prosecutor’s consent to this course since the appellant was then under cross-examination. The Crown Prosecutor did not consent to defence counsel conferring with his client while under cross-examination either on the Thursday afternoon or, when the request was renewed, on the Friday. The Crown Prosecutor went on to say that he had asked his instructing solicitor to inform Salgado-Silva’s solicitor of the likelihood that some contact might be made with her client by the representatives of the appellant. The Crown Prosecutor had himself spoken with Mr Shaw and suggested that the latter attend court that morning.

24 The trial judge inquired of Mr Shaw whether he had been informed of these developments by anyone other than the Crown Prosecutor. Mr Shaw went on to give an outline of communication between the appellant’s solicitors and his instructing solicitor. He said that he had fortuitously run into Mr McCrudden in Hyde Park on the afternoon of Friday 1 September. He was aware that some attempt had been made to contact his client and that he spoke with Mr McCrudden about this matter using what he characterised as “strong language”. Subsequently Mr Shaw was informed by the Crown Prosecutor that a s 77 order had been issued. This prompted him to telephone Mr McCrudden and in a “heated sort of way” he had taken up with Mr McCrudden the question of why nothing had been said about the issue of a s 77 order earlier when the two had met. Mr McCrudden had informed him that at the time of that meeting he was unaware that a section 77 order had been issued.

25 His Honour was informed that Mr Salgado-Silva had been conveyed to Court on the morning of 4 September. Thereafter the transcript records that Mr Shaw said this:

“There’s one further matter, I did ask Mr McCrudden on Friday afternoon what was his intention, was his intention to call my client or not to call my client and Mr McCrudden did indicate to me on Friday afternoon that it was not his intention to call my client and I sought the undertaking from him that if that intention changed he would tell me ASAP. Mr McCrudden gave me that undertaking. He again reiterated that undertaking to me this morning before your Honour came onto the Bench. I of course accept my friend’s undertaking (T301-302; AB589-90).”

26 Mr Shaw informed the Court that he had received a letter from the appellant’s solicitors which “to some degree apologise[d] for what occurred in the latter part of last week”. It was at this juncture that his Honour observed:

“This is not a trial in relation to behaviour of solicitors and/or barristers. That might come later. There’s already something that I have mentioned which I don’t want to mention again. Which I will mention to Mr McCrudden at the end of this trial. But this is all in my view highly irregular. Are you able to tell me Mr Shaw whether it’s in your knowledge. I think you’ve already told me this, you don’t know apparently whether anybody on behalf of this accused from Rosemary Freeman’s office or otherwise went to see your client over the weekend? (T302; AB590).”

27 There followed an exchange between the trial judge, Mr Shaw and Mr McCrudden. The sum of which was that there had been no contact made by the appellant’s representatives with Salgado-Silva at the prison complex over the weekend. Mr McCrudden explained that there had been some attempted contact on the preceding Friday between a person in the employ of his instructing solicitors and Salgado-Silva. His Honour went on to state:

“Well Mr McCrudden I have already mentioned that you are counsel of some experience in criminal matters. Was Nicole or somebody else from Freeman’s or anybody to your knowledge on a frolic of their own or was this done with your approval, with your direction or what?
McCRUDDEN: Your Honour I don’t believe that the person Nicole was on a frolic of her own. There’s no doubt that I had input to it, but your Honour there’s a gap in what has occurred, in that it is always necessary to contact the person who represents the client of the co-accused or whoever it may be that you’re establishing contact with. That was done by attempt but not followed through.

HIS HONOUR: But the Crown told me as I recall it and this will all be recorded I hope, that you spoke to him and asked permission could somebody see your client and speak to him about the question of whether Salgado-Silva was to be called or could be called or anyone could see him. As I understand because your client Cordero Vidal is under cross-examination, the Crown Prosecutor said no, that shouldn’t happen. Even if the Crown had said yes without the Court’s sanction in my view that would have been most improper for anyone to talk to him while he was under cross-examination. You must know that.
McCRUDDEN: Well your Honour I did consult the Bar Rules first and when I asked my friend would he consent, I was of the view that had he consented there would have been the protection of the Bar Rules and the fact that he did consent. But he didn’t. As a result of that my friend mentioned a further conversation on Friday evening when I raised the same issue. My friend again declined.
HIS HONOUR: So you’ve got two approaches that you say are in the purview of proprietary according to the Bar Rules.
McCRUDDEN: Yes your Honour.
HIS HONOUR: And two refusals by the Crown to give the permission that you sought to talk to your client.
McCRUDDEN: Yes. I took it no further.
HIS HONOUR: You took it no further but there was nevertheless an attempt by Nicole whoever Nicole is to talk to Salgado-Silva without any proper contact with his legal advisers, Mr Shaw and/or his instructing solicitors.
McCRUDDEN: That’s correct your Honour.
HIS HONOUR: Now Mr McCrudden that Bar Rules may say something but we are not conducting this trial according to Rafferty’s Rules, let me assure you of that. That is something that seems to have crept in here and that is something up with which I will not put. I don’t intend to say anything further at this point. That will come later and I assure you that it will come later and I will put you on notice that it will come later. It will come on later in relation to your behaviour and your instructing solicitor’s behaviour in relation to this matter. I will give you further and better particulars at the end of this trial. In the meantime we have a jury waiting. The jury has been kept waiting on many occasions, sometimes because of the exigencies of the trial and sometimes of personal matters affecting mainly yourself Mr McCrudden. However I will move on. Is there anything further you want to put to me Mr Shaw?
SHAW: No your Honour save if Mr Silva be excused in respect of the s 77 warrant.
HIS HONOUR: On Mr McCrudden’s assurance that he does not wish to call him.
SHAW: He’s given that assurance your Honour.
HIS HONOUR: You accept that assurance. He’s given the assurance to the Court?
SHAW: I accept his assurance. It was given in open court.
HIS HONOUR: Yes the assurance was given in open court and you accept it and with great respect whether you accept it or not Mr Silva will not be called. I make that ruling. He is excused. He can be taken whence he came. Whatever happens now is a matter for the corrective services authorities. Thank you for your courtesy in coming today and your instructing solicitor. We’ll continue with the trial. At the moment Mr Cordero-Vidal is under cross-examination by the Crown Prosecutor.
I ask the Court sound monitor to see if the proceedings this morning that have been recorded can be taken out as a matter of urgency and transcribed. I would be obliged if you would ask that that would happen and if necessary I’ll ask my associate to get in touch with whoever is in charge of those matters. This is the second time that something of a serious nature has occurred in this trial which concerns members of the legal profession. I exclude the Crown. I exclude Mr Shaw and his instructing solicitors (T304-305; AB592-593).”

28 I have extracted a lengthy portion of the transcript because, in part, it bears on the determination of the second ground of appeal which complains about the conduct of the trial judge.

29 In the course of oral submissions it became apparent that the appellant was not seeking to contend in support of the first ground that he had been denied the opportunity to call evidence from Salgado-Silva by reason of the “ruling” made by the trial judge which is set out in paragraph [27] above. This ground was argued upon an acceptance that his Honour’s remarks were made after Mr McCrudden had announced that he had no intention of calling Salgado-Silva. Rather, as Mr Hamill, who appeared on behalf of the appellant, developed the ground it was that in a practical sense it had not been open to the appellant to call Salgado-Silva. Salgado-Silva had been advised not to speak with the appellant’s legal representatives. He had not been sentenced in respect of his admitted involvement in the events giving rise to the charge against the appellant. It was not known what he would say were he to be called to give evidence and, in these circumstances, no counsel acting reasonably would have called him.

30 The principles to be applied in dealing with a ground of appeal which seeks to set aside a conviction relying on fresh evidence were stated in Mickelberg in the joint judgment of Toohey and Gaudron JJ at 301:

“The underlying rationale for a Court of Criminal Appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, e.g., Gallagher v The Queen [(1986) 160 CLR 392 at pp 395, 402, 410]. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen [(1974) 131 CLR 510, at pp 516-517], per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen [(1979) 142 CLR 659 at pp 666, 675-677].”

31 Salgado-Silva was an “associated defendant” within the meaning of that expression for the purposes of the Evidence Act1995. He was not being tried jointly with the appellant and accordingly he was a compellable witness: s 17(3) of the Evidence Act.

32 Salgado-Silva was brought to the Court on Monday 4 September 2000 pursuant to an order issued under s 77 of the Crimes (Administration of Sentences) Act 1999. He was therefore an available witness.

33 A number of difficulties confronted Mr McCrudden in deciding whether to call Salgado-Silva in the appellant’s case. On Friday 28 August and Monday 4 September the appellant was under cross-examination and the Crown Prosecutor had declined consent to Mr McCrudden conferring with his client on this issue. At the conclusion of the appellant’s cross examination Mr McCrudden might have sought an adjournment in order to obtain instructions in this respect.

34 Salgado-Silva had not been sentenced. It is not clear that the policy reasons which generally require that an associated defendant be sentenced before giving evidence on behalf of the Crown apply where he or she is called on behalf of the accused. Mr Hamill submitted that a practical obstacle was that Salgado-Silva’s representatives had advised him against speaking with the appellant’s lawyers prior to the finalisation of the sentence proceedings. One solution to this difficulty may have been to make an application to the trial judge to adjourn the trial and proceed to sentence Salgado-Silva.

35 Mr Hamill pointed to the exchanges between Mr McCrudden and the trial judge on the morning of 4 September. The trial judge was critical, both of Mr McCrudden and his instructing solicitor, over the direct approach made to Salgado-Silva in the absence of contact with his solicitor. He made plain that he was giving consideration to referring this matter at the conclusion of the trial to the appropriate authority for consideration of disciplinary action.

36 Salgado-Silva was not a party to the proceedings between the Crown and the appellant. No rule precluded counsel or those instructing him from seeking to confer with Salgado-Silva, who was a potential witness. There was no occasion for the Crown Prosecutor to suggest to Mr Shaw that he attend court on the Monday morning to be heard on the matter. The Judge’s question of Mr Shaw whether he had been told about the developments apart from such information as had been conveyed to him by the Crown carried with it the suggestion that he should have been notified by Mr McCrudden or his instructing solicitor. I do not consider that there was any such obligation on Mr McCrudden or on his solicitor. It does appear that the focus of attention at the commencement of the trial on Monday 4 September was on the propriety of the conduct of Mr McCrudden and his instructing solicitor. Conduct which his Honour characterised as being “highly irregular”. This, with respect, seems to have been misconceived.

37 In the light of this unusual history the Court considered there was some force to Mr Hamill’s submission that any criticism of counsel’s failure to seek an adjournment to obtain instructions from his client at the conclusion of cross examination or, perhaps, in order that the judge might sentence Salgado-Silva before he was called in the appellant’s case, needed to assessed in the context of the difficulties which Mr McCrudden was facing on Monday 4 September. In these circumstances, notwithstanding that Salgado-Silva’s evidence was not fresh evidence, the Court decided to receive his affidavit made on 6 February 2002. He was cross-examined upon it before the Court on 22 February 2002.

38 In Mickelberg v The Queen Toohey and Gaudron JJ observed at 301-302:

“There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be “credible”, “cogent”, “relevant”, “plausible”: see, e.g. Gallagher [(1986) 160 CLR, at pp 395-396, 401-402, 408-409]; Craig v The King [(1933) 49 CLR 429 at p 439]; Ratten [(1974) 131 CLR, at pp 519-520]; Lawless [(1979) 142 CLR, at pp 671, 676-677]. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher [(1986) 160 CLR, at p 410], per Brennan J) or, if there be a practical difference, that there is “a significant possibility that the jury, acting reasonably, would have acquitted the [accused]” ( Gallagher [(1986) 160 CLR, at p 399], per Gibbs CJ and per Mason and Deane JJ [(1986) 160 CLR, at p 402]). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained a reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the Court should think it likely that a reasonable jury would believe it: see Lawless [(1979) 142 CLR at pp 676-677], per Mason J and Gallagher [(1986) 160 CLR, at p 410], per Brennan J, but cf Barwick CJ in Ratten .”

39 In Regina v Donnelly [2001] NSWCCA 394 Giles JA (in a judgment with which Wood CJ at CL agreed) reviewed the authorities dealing with the quality required of fresh evidence if it is to give rise to a successful appeal. After extracting the passage in Mickelberg from the judgment of Toohey and Gaudron JJ, which is set out in [38] above, his Honour observed at par [40]:

“It may be that there is a practical difference between the two formulations of the requisite nature of the fresh evidence, in that a significant possibility is a less stringent criterion than a likelihood.”
His Honour applied the significant possibility formulation noting that it was the approach which had been applied in earlier decisions of this Court. It is the approach that I adopt in the present case.

40 On its face the evidence of Salgado-Silva is supportive of the case which the appellant sought to make at trial. In his affidavit Salgado-Silva asserts that the appellant had no role whatsoever in the importation of drugs. He deposes that, “I told him nothing about the importation”. This latter assertion needs to assessed in the context of the whole of his evidence which was that he had not himself known that cocaine was concealed in the battery belts.

41 It was Salgado-Silva’s evidence that he had been recruited in Madrid, by a man named Quintero, to make a tourist film. He was to travel to Miami, New York, Venezuela, Caracas, Curacao, Amsterdam and Sydney shooting scenes for the film. He was to be paid the sum of $US40,000 for this work. Mr Quintero suggested that he engage an offsider to help him. He selected the appellant who was his brother-in-law. The appellant had no experience in film work. He was only required to carry the batteries and equipment. Salgado-Silva offered to pay the appellant a half share of the fee that he was to receive from Quintero. The pair travelled from Madrid to Miami without any camera equipment. In Miami they waited for a number of days until a person named Fernando arrived and delivered some camera equipment to them.

42 Salgado-Silva said that the appellant was concerned by the delays associated with the trip. It had been planned to take fifteen days in all. The appellant wanted to return home and he told Salgado-Silva not to worry about the money. However Salgado-Silva convinced him to continue.

43 Salgado-Silva said that they had been supplied with the batteries when they were in Caracas. He denied knowledge of the cocaine but said that while they were in Venezuela he had entertained suspicions that they may be being used to carry either drugs or money. He had raised these suspicions with Quintero who allayed them. He had not discussed his suspicions with the appellant.

44 Salgado-Silva did not impress during the course of cross-examination. Generally, his account was implausible. There were a number of inconsistencies between his evidence and answers given by him during the course of his electronically recorded interview with police. He said that he had told lies to the police initially but that during the course of the interview he had a change of heart and decided to co-operate with them. However there remained inconsistencies between his evidence and answers given by him in the interview after the point when he said that he had resolved to give a truthful account. No credible explanation was given for these inconsistencies.

45 In his affidavit Salgado-Silva said that following the delays in Miami the appellant had evinced a desire to return to Spain because his wife was expecting a baby. In evidence he said the baby had been born prior to their departure for Miami.

46 In the interview Salgado-Silva gave an account that Quintero had supplied him with forged identity papers in Miami. In evidence he maintained that he had not seen Quintero in Miami:

“Q. What you told the police, in essence, is that it was Mr Quintero himself, who forged those documents in Miami, is it not?
A. Yes.
Q. You told the police that?
A. Yes.
Q. You told the police that it was Octavio Quintero that had signed the false signatures on the documents in Miami?
A. Ahuh.
Q. Is that the truth?
A. No.
Q. Hadn’t you decided at that stage to tell the police the truth? In other words you had changed your mind, that you were going to come clean with the police at that stage?
A. No, I said to the police I didn’t know at that time. I didn’t no (sic) really what to say. I was very nervous at that given moment, and I have already said, yes I did lie to the police initially.
Q. But you see you continued to lie, if what you are saying now is correct, didn’t you, because you told the police it was Octavio Quintero who had forged those documents with your assistance in Miami?
A. Yes, it’s true that I said that. I don’t know what to say in that regard. It’s true I did say that, and I lied. It’s true that I lied.
…
Q. What you told the police was that you did compose the letter, and that you did so at the request of Mr Quintero wasn’t it. Why did you tell that lie?
A. I don’t know why I said that lie.” (T23)

47 In the course of the interview Salgado-Silva said:

“I don’t want to waste your time either because I want to help. I want to co-operate. So are you interested in getting all of them?”
In cross-examination he was asked what he had intended to convey by his offer to the police to assist in “getting all of them”. He responded:

“At that time I was thinking of those who I thought would have been involved. I didn’t, I wasn’t referring to anybody in particular”. (T24)

48 In the interview Salgado-Silva also said:

“so what I want to do is to make a deal with you, so that you could get this man and the person who was going to buy that.”
In evidence he said that he did not know the identity of the buyer. It was his supposition that there would have been one. He had not been given any instructions as to what he was to do with the battery belts following his arrival in Australia.

49 In answer to another question in the interview Salgado-Silva said:

“well about the cocaine there, I cannot tell you anything about the cocaine. I know that the batteries were given to me by Octavio Quintero, and that I was supposed to give these things to somebody else, who I don’t know who he is.”
In his evidence he said that he had been referring to equipment when he said that he was supposed to give these things to somebody else. He had not intended to suggest that he was referring to the batteries.

50 It is to be noted that in the interview Salgado-Silva also said:

“A.437 I’m really willing to co-operate because the truth is that I am … (indistinct) … in exchange with some benefits for me and for my friend. I know that I am partly guilty and I don’t deny it that we were, like, a curtain for this to happen and the truth is that I didn’t know that there was twenty kilograms of cocaine involved what we were going to get was very minimal part. Honestly I didn’t know that there were twenty kilos of cocaine there.
Q.438 So, how much did Octavia say that you would get for all the work that you’ve gone through? How much money were you going to get if this had worked out?
A. He was going to give us three million pesetas to each one.”

51 In the light of the manifest unexplained inconsistencies between Salgado-Silva’s evidence and the account he gave in the interview, and having regard to the quality of his evidence generally, I do not consider that a significant possibility exists that the jury, acting reasonably, would have acquitted the appellant had this material been available in addition to the other evidence given at the trial.

52 Accordingly, I would reject the first ground of appeal.

53 The appellant’s second ground of appeal contended that the trial miscarried as a result of conduct of the learned trial judge which diminished and undermined:

(i) the ability of counsel for the appellant to properly represent his client;

(ii) the credibility of counsel for the appellant in the eyes of the jury;

(iii) the evidence of the appellant and the case presented on his behalf in such a way and to such an extent that the appellant did not receive a fair trial.

54 In written submissions in support of this ground Mr Hamill drew attention to a number of passages in the transcript showing interventions by the trial judge during the course of the evidence of the appellant. Reliance was also placed on the exchange between the trial judge and Mr McCrudden which has been extracted in paragraph [27] above, and to other passages in the transcript in which it was made plain to Mr McCrudden that consideration was being given by the trial judge to making a report of his conduct to the appropriate professional body. These episodes occurred in the absence of the jury however they contributed, in Mr Hamill’s submission, to an atmosphere in which trial counsel was “cowed by the conduct of the trial judge and bullying of the trial judge towards him as counsel”. Added to this was a submission that the structure and contents of the summing up was such as to have undermined the defence case.

55 The first matter to which Mr Hamill drew attention in support of ground two was a comment made by the trial judge during the course of the initial joint trial, namely, that the Crown case against the appellant was an almost overwhelmingly strong one. No application was made on the appellant’s behalf that the trial judge disqualify himself from presiding over the new trial upon the ground of apprehended bias or otherwise. Mr Hamill sought to rely on the expression of his Honour’s opinion in support of the second ground of appeal by contending:

“This is a case where his Honour had a view, and when one looks at the conduct of the trial, that view permeates the entire course of proceedings in such a way that the accused did not receive a fair trial.”
It does not seem to me that the observation, made in the course of discussion with counsel at an earlier trial, bears relevantly upon the determination of a ground which contends that his Honour’s conduct in the instant case was such as to deprive the appellant of a fair trial. Whatever his Honour’s opinion as to the strength of the Crown case, this ground falls to be determined upon an analysis of the conduct of the trial.

56 The matter having been raised it is appropriate to place the impugned comment in its proper context. On the seventh day of the joint trial, being a Friday, Mr Shaw sought an adjournment until the following Monday in order to obtain instructions from his client as to a foreshadowed change of plea. The transcript records discussion concerning the then recently published guideline judgment in Regina v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. Mr McCrudden directed his Honour’s attention to paragraph [137] of the judgment in which there is discussion of the strength of the Crown case as a factor bearing on the issue of contrition as evidenced by the fact of a plea of guilty. It is in the light of this discussion that one should consider the comments made by his Honour when the joint trial resumed the following Monday. His Honour observed:

“Let me be quite frank, Mr Shaw and Mr McCrudden, these are matters for you and your clients, not for me. I have done what I think was proper in the light of the decision on Friday and in the light of what I think, let me say it frankly, is an almost overwhelming Crown case. Lest your clients are under any misapprehension, that is what I think. What the jury thinks of course none of us knows.” (T264)

57 At the time when the trial judge expressed an opinion concerning the strength of the Crown case it was apparent that consideration was being given by one, and possibly both, of the accused to the entry of a plea of guilty. It was the appellant’s counsel who raised the topic of the significance of an overwhelming Crown case to the extent of any discount which might be allowed upon a plea of guilty. Viewed in this light, his Honour’s remarks might be thought to have been expressed in order to avoid any misapprehension as to the extent of any discount in the event of a change of plea.

58 I do not consider that the appellant’s second ground derives any support from his Honour’s expression of opinion as to the strength of the Crown case at the earlier, aborted, trial. I turn now to the matters relied upon by Mr Hamill arising out of the trial judge’s interventions during the examination of the appellant.

59 It was contended by Mr Hamill that “the vast majority (if not all) of these interventions tended to favour or assist the prosecution.” Mr Hamill instanced occasions when it was said the trial judge had (i) taken over the cross-examination (AB472-473, 501, 521, 527, 543, 583, 605-606 and 607) (ii) suggested or approved lines of cross-examination (AB464-463, 551) and (iii) exhibited incredulity and/or exasperation with the witness (AB521, 543, 553, 563, 605-606, 607). Generally, it was put that the interventions by the trial judge went beyond a legitimate attempt to clarify the evidence and were such that the jury would have sensed that he had formed an adverse view of the appellant and of his case.

60 The examination of the appellant was lengthy. It commenced towards the end of the fifth day of the trial and continued throughout the sixth, seventh and eight days concluding on the morning of the ninth day (it is to be noted that the Court adjourned early on day six).

61 Although not determinative of the challenge advanced by the appellant that the trial judge took over the cross-examination, it is to be noted that some twenty-one questions are particularised in the passages to which I have referred in (i) above. The cross-examination in all involved hundreds of questions. On occasions it appears that his Honour was seeking to clarify answers given by the witness which were somewhat confusing, a circumstance which may be explained by language difficulties. The appellant gave his evidence through an interpreter.

62 The complaint that the trial judge suggested or approved lines of cross-examination is particularised by reference to two portions of the transcript. The first is at AB463, 464 and 465. The appellant was being examined in chief concerning the circumstances in which he acquired a passport. He was shown his passport, Ex B, and asked to identify his signature. Mr McCrudden directed attention to the circumstance that there was a plastic covering over the signature. The appellant agreed that this was the case. He said he had signed the passport at the Police Station prior to the plastic covering being put on it. It was at this point that his Honour asked to see the passport and then directed a number of questions to the appellant. These sought to clarify that the signature had been placed on the document prior to the plastic covering. It is not clear what, if any significance, attached to the circumstance that the passport was laminated (or had some other form of plastic covering attached to it) after the appellant signed it. An examination of Mr McCrudden’s final address and the summing up suggests that this matter was not an issue in the trial. In these circumstances it is not apparent how the questions asked by his Honour on this topic during the examination in chief either by themselves or in combination with other questions brought about a miscarriage of justice.

63 The other passage complained of as an instance of the trial judge suggesting or approving lines of cross-examination occurred during the cross-examination of the appellant and is at AB551. The transcript records the following:

“Q. And if I can just take you to, getting towards the end of the record of interview, you were consistent all the way through, at question 357 answer. Why’d you give that answer?
A. I don’t know how to explain why I gave those answers.
Q. Not only did you lie on your behalf, but you also tried to protect your good friend Mr Silva didn’t you, in relation to the identity of this particular person?
HIS HONOUR: Well if we’re going on to that which is perfectly legitimate, I think we ought to have the break now Mr Crown. Would you please now go with the Sheriff’s Officer and we’ll have our morning break members of the jury.”

64 As I understand the challenge made by Mr Hamill none of these passages viewed in isolation are to be taken as giving rise to a miscarriage of justice but rather viewed as a whole they were such as to give rise to a view that the trial judge was convinced of the guilt of the accused. Certainly standing alone his Honour’s comment, extracted above, made in the course of announcing the morning tea adjournment does not impress me as a matter of great moment.

65 The complaint that the trial judge exhibited incredulity and/or exasperation with the appellant is particularised by reference firstly to an occasion when he directed the witness to listen to the question and answer it (AB521). On another occasion the judge said:

“I’m going to ask some questions because I don’t understand and I’m asking the question because the Crown is putting to you that money is important to you and that’s why you went on the trip. Now, in that context, the Crown has asked you about your responsibility to support your wife and children. Now, I don’t want to pursue this any further than I have to and I only want to understand what you’re saying and I don’t know whether the Crown wants to ask you questions about what you said in your record of interview, but it doesn’t seem to accord with what you’re saying now and that’s as far as I’m going to take it (AB543).”

His Honour went on to ask the appellant to try and answer the questions asked of him saying: “I know there’s a language difficulty. Listen carefully to the questions and try to answer the question.” The passage complained of at AB543 comes after lengthy exchanges between his Honour, the Crown Prosecutor and Mr McCrudden concerning answers the witnesses had earlier given concerning the amount of money that he was to receive in connection with this venture. Read as a whole I am not persuaded that his Honour is to be taken to have either exhibited incredulity or exasperation with the witness. The same observation might be made about the passage complained of at AB553 and AB563. The latter passage seems more, if anything, to fall within the ground of complaint identified in (ii) above, namely suggesting or approving lines of cross-examination. Just prior to the luncheon adjournment the trial judge asked the Crown Prosecutor whether he proposed taking the appellant to a question which he had touched on but not followed; Q348 in the ERISP.

66 At AB605 - 607 the following passages are complained of as evidencing the trial judge’s incredulity and/or exasperation with the appellant:

“HIS HONOUR:
Q. Well, that’s a simple question, isn’t it? The question is do you know the difference between Venezuela and Amsterdam?
A. I don’t know what the difference – difference how? Different how?
Q. Let me explain. Venezuela’s in South America, isn’t it?
A. Yes.
Q. Amsterdam is in Holland, isn’t it?
A. Yes.
Q. Holland is in Europe, isn’t it? Do you understand now? The Crown is asking you do you know the difference between Venezuela and Amsterdam?
A. Yes, I know what you’re trying to say but I don’t understand what difference you are referring to.
Q. Mr Cordero-Vidal, I’m not trying to say anything. I’m just asking you to answer the questions being asked of you and the question is do you know the difference between Amsterdam which is in Holland which is in Europe and Venezuela which is in South America?
A. Amsterdam is Europe, isn’t it? Isn’t it?
CROWN PROSECUTOR:
Q. And when you answered the questions you knew Amsterdam was in Europe, didn’t you?
A. I don’t know, I think so. In Holland.
Q. And you knew Venezuela …
HIS HONOUR:
Q. You say that you don’t know, you think Amsterdam’s in Europe in Holland?
A. I believe Holland is in Europe. I believe so.

…

(CROWN PROSECUTOR)
Q. In relation to 127 which followed on from your answer, your answer there is responsive to the question which was asked of you, wasn’t it?
A. I repeat again, I don’t know why I said those things to the police. I don’t know.
HIS HONOUR:
Q. Would you answer the question? The question is in question 127 is that answer to the question responsive to the question. In other words, were you answering the question?
A. But I don’t know what I said. I don’t know what I said.
Q. Well, would you read to him what the question was and what the answer is. All the Court want to know in answer to the Crown’s question is was the answer responsive to the question, the question being who owns the batteries?
A. My answer is I don’t know why I said that. I don’t know why I said that. They were given to Silva in Venezuela. I don’t know why I answered that.”

67 Mr Hamill submitted that the judge’s interventions during the course of the evidence of the appellant were to be taken in conjunction with a complaint concerning the structure and content of the summing up. When viewed together the effect was to convey the judge’s conviction in the guilt of the appellant and, with respect to the summing up, to undermine the credibility of defence counsel to such an extent as to have denied the appellant a fair trial.

68 Before turning to the criticisms made of the summing up it is appropriate to note that at no time did Mr McCrudden complain as to the nature or extent of the trial judge’s interventions during the course of the appellant’s evidence. I would be reluctant to draw the inference that the trial judge exhibited incredulity and/or exasperation with the appellant when questioning him in the absence of a complaint by experienced trial counsel.

69 The trial judge commenced his summing up by saying:

“Members of the jury, this case has absolutely nothing to do with Ireland. Nothing. This case has absolutely nothing to do with prejudice. Nothing. Nothing at all. Cast any prejudice from your minds. I do not suspect you have any.

Where is the prejudice that Mr McCrudden speaks of? Where is this white, hot, arc light of the Court? There is no white, hot, arct light in this Court, and there should be no prejudice in this Court. You, as jurors, must cast aside any idea of prejudice, racial or otherwise. That is not our way.

Now let the tumult and the shouting die. Let there be some calm, cool deliberation, which is necessary to bring to bear in this matter, when you fulfil your functions and execute your oath, to deal with the matters in this Court on the evidence you have heard here, and nothing else.

Of course the accused is the only person in this Court in jeopardy. We all know that Mr McCrudden and the Crown Prosecutor are not facing a charge. We know that. Members of the jury, our system of law is precious to us and you must not find this accused guilty because of any prejudice or anything of that nature, nor should you be swayed by emotion.”

70 Mr Hamill acknowledged that these opening comments were made in response to certain of the submissions put by Mr McCrudden in his closing address. In his written submissions Mr Hamill said that counsel had referred to a cartoon relating to the conviction of Irishmen in England for bombings “they hadn’t done”. Elsewhere Mr McCrudden had referred to Salgado-Silva as a traitor who had set up the appellant and who had not faced the “white hot arc light” of cross-examination. Mr Hamill went on to contend:

“It is submitted that his Honour’s response to – or more accurately, attack upon – counsel and his submissions was neither justified nor justifiable in the circumstances of the case. The result, inevitably, was to undermine the credibility of counsel for the appellant in such a way as to deny the appellant a fair trial. It is further submitted that the opening of the charge set a tone that was maintained from beginning to end.”

71 The appeal books did not include a transcript of the addresses. Mr Hamill tendered cassette tape recordings of both. In order to evaluate the criticism advanced as to the balance of the summing up, I have listened to the whole of Mr McCrudden’s address. As a general observation, I would describe it as an address characterised by a deal of rhetoric and comparatively little analysis of the evidence. Mr McCrudden warned the jury not to be influenced by prejudice. This was a repeated refrain. The prejudice to which the jury might be subject was not identified. Salgado-Silva was described on more than one occasion as a traitor and the appellant as a person who had been duped by him. In summarising the submissions of counsel the trial judge said at AB676:

“It is claimed that this accused was duped. Used, like a dirty rag, by a traitor, a treacherous person. Well, they are matters for you.”
Suggestions of that character in emotive language of that nature were used by Mr McCrudden.

72 Mr McCrudden concluded his address in these terms:

“He comes to you with that presumption that he is innocent. Innocent unless proven guilty. Unless, not until, because until denotes a time and there’s no time when the issues of justice are sought. In this case my learned friend and I come here both seeking the same thing as does his Honour, as does you - as do you. We come here seeking justice, justice first, justice second and if there’s a conviction in this it’s going to be a very, very, very poor third. We don’t come here seeking anything more than that, for example, if you were to find that you couldn’t make up your minds or that you found that my client was not guilty there wouldn’t be two heavies waiting outside the door there to grab my learned friend as he walks out the door on what (indecipherable) and by the same token they don’t give me an extra one if you find my client not guilty.

Your oath of office is an important one. But all you get for the troubles you’ve had, the disruption of your lives, is the thanks of the community that you’ve served and the miserable pittance that the government pays you. But you are here as tradition demands it. For many hundreds of years you stand between the State and all its power, it is you to whom my client turns for his protection. It is you who look at the evidence. It is you upon whom he relies.

Now when doing this, when carrying out your office you didn’t take your oath like a mob of sheep. Some of you may be inclined to think that my client’s guilty. Some of you may have made up your minds very early in the piece. Some of you may be uncertain. Some of you may say he’s not guilty. Who knows? I don’t. But whatever view you come to in the course of your deliberations, if it’s a reasonable view, and you think that my client is not guilty and you hold that view, you can be persuaded, to be sure, that if you hold the view and you think that it’s reasonable, having regard to the fact that there was a deception played upon my client, don’t be intimidated. There are no casting votes in the jury. It’s unanimous or it’s nothing.

You decide this according to the evidence, nothing more. Oh I beg your pardon there is more, it’s the directions of his Honour at law. And you’ve got to get it right. You can’t re-form this Court after you’ve made your verdict. If there is a benefit in this case to be given it’s to be given to the man who has sat and faced two and a half days of cross-examination. If you believe that he is innocent or if you believe that he’s not guilty or you cannot make up your minds, then he is not guilty.
I referred before to the question of prejudice. I was reminded of a cartoon that I once saw during the times when Irish men and women were tried in England for bombings that they never did and they were eventually released and compensated, but not nearly enough for the length of time and many years they spent in jail. But the cartoon ran like this at the time, there was a man appearing in dishevelled clothing before a judge, before a court, only he looked very small before the bench, he was in a dock, much like you see my client now, only much smaller in this cartoon that I saw and the question that was put to him was “how do you plead? Not guilty or Irish?” What an Irish joke that is! Must have sounded or read like ashes in the mouths of those who through their machinations convicted those people.
Ladies and gentlemen I’m able to conclude my address to you and I thank you for your patience. There’s precious little more that I could say, unless I repeat myself, I don’t want to do that. I hope that I didn’t exasperate you. I hope I didn’t try your patience too much. But remember that you have taken an oath of office and that office is to listen to the evidence and give your judgment according to law.
Before I conclude though, you’ll make your decisions in the absence of something which must be troubling you. I submit to you that you do not take the slightest bit of notice of what has happened, or may happen, to Mr Salgado-Silva. There’s precious little evidence about him and he has no concern to you at your deliberations except that he’s relevant for one purpose. He’s the trusted one who led this farmer, his accompalcino (?) relative tenderly by the nose as an ass. He’s the one who promised not a large reward for average work, for time spent away, for travel. And each day that he spoke with one, Cordero-Vidal, each day that they sat opposite each other or near each other, each time they sat across a table, each time that Salgado-Silva urged my client to remain upon the trip, each time he drank with him, each time he spoke with him about his home, his family, his country of birth, the love and affection of a family, every time he looked at him in the eyes he drove the hard nail of betrayal deep, deeper into an innocent man. If I express myself strongly ladies and gentlemen of this jury, if I express myself in a way that you may say is overdoing then I apologise. But that is what the evidence reveals to you. My client, one Cordero-Vidal is not guilty.

May it please the Court.”

73 In R v McCarthy & Ryan (1993) 71 A Crim R 395 Hunt CJ at CL reviewed the authorities in this State which have considered challenges to the balance of a trial judge’s summing up since the change in the order of addresses. His Honour observed at 407:

“I have previously remarked upon the disservice which counsel for the accused do for their clients when arguments are put to the jury which are fallacious, illogical, extravagant, excessive, unwarranted or dishonest. None of those circumstances permits leave to the be granted to the Crown Prosecutor to make a supplementary address in order to point out the blemishes, as used to his or her task before the order of final addresses was reversed by s 405. It is now left to the judge to clean up the mess, and by having to do so (in order to ensure that both parties have a fair trial), the remarks made by the trial judge are inevitably regarded by the jury as more authoritative than those which used to be made by the Crown Prosecutor: O’Donoghue (1988) 34 A Crim R 397 at 404; see also Glusheski (1986) 33 A Crim R 193 at 195-196 (per Street CJ).”

74 His Honour’s opening observations set out above can be seen to be a response to a number of emotive passages in Mr McCrudden’s address. The gratuitous reference in the course of his address to the wrongful conviction of Irish persons for bombing offences in England in combination with the reference to the “machinations” of the jury in that case seems to me to have called for some correction by the trial judge. Likewise the emphasis on some unnamed prejudice (in association with the submission that a conviction would be running a poor third for justice in this case) might be thought to have called for comment. I am not persuaded that his Honour’s opening remarks exceeded that which was open to him in an endeavour to ensure a fair trial to both parties.

75 Mr Hamill referred us to several passages in the summing up which he characterised as sprinkled with rhetorical questions and comments all tending to favour the Crown case. In particular, he drew attention to the repeated references to the submission made by Mr McCrudden that Federal Agent Turner was pusillanimous. The only challenge to Federal Agent Turner in cross examination had been to query her failure to ask more detailed questions of the appellant concerning his stay in Venezuela. Federal Agent Turner said that she had asked questions of the appellant concerning Venezuela but that he was unable to provide any detail in relation to a lot of the questions she had asked. Mr McCrudden invited the jury to consider answers given by Federal Agent Turner to be a “pusillanimous excuse”. I do not consider that the trial judge’s comments in the circumstances to have overstepped the proper bounds such as to have amounted to a miscarriage of justice.

76 Notwithstanding any excess of enthusiasm on the part of defence counsel, it is necessary that the summing up fairly puts the defence case: Cleland v the Queen (1982) 151 CLR 1 per Gibbs CJ at 10. I do not understand Mr Hamill to submit that the trial judge failed so to do in this case. Rather it is put that the tenor of the summing up served to undermine the credibility of defence counsel and of the submissions he had advanced and, when taken in combination, with the passages complained of during the examination and cross-examination of the appellant served to convey that the trial judge had formed a view as to the guilt of the appellant. In R v Esposito (1998) 45 NSWLR 442 Wood CJ at CL observed at 468:

“The need for caution on the part of a trial in remaining above the fray, particularly in a criminal trial, is well established. In Mawson (1967) VR 205 the Full Court of the Supreme Court of Victoria said:
‘It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any number of reasons. It may, for instance, involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury. … Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain (1936) Cr App Rep 204, or again the miscarriage may result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person.’”

77 As I have noted, Mr McCrudden raised no complaint concerning the trial judge’s interventions during the course of the evidence of the appellant. Further, at the conclusion of the summing up Mr McCrudden did not make any complaint as to a lack of balance or the like. This speaks against acceptance of the contention that the conduct of the trial judge was such as to have deprived the appellant of a fair trial; R v Glusheski (1986) 33 A Crim R 193 per Street CJ at 196-197 and R v Haeney (unreported, Supreme Court NSW, 13 June 1978). Mr Hamill sought to meet this criticism by pointing to the exchanges between Mr McCrudden and the trial judge over the question of the calling of Salgado-Silva. This material is extracted at paragraph [27] above. In Mr Hamill’s submission trial counsel had been intimidated by his Honour’s criticisms of him such that this Court would not draw an inference from his failure to complain about the judge’s conduct that he did not perceive any unfairness to his client. A difficulty with this submission is that in his affidavit affirmed on 21 February 2002 Mr McCrudden maintained that although he had felt uncomfortable by reason of the judge’s remarks concerning disciplinary action it was his belief that these had not affected the performance of his duties.

78 To my mind the contents and tone of Mr McCrudden’s final address to the jury do not sit well with Mr Hamill’s submission that he was cowed by the conduct of the trial judge.

79 It is to be noted that during the course of the summing up Mr McCrudden raised a concern that the judge’s summary of one of his submissions to the jury had not been accurately put. The trial judge explained what he had sought to convey in this portion of the summing up to which Mr McCrudden responded “yes your Honour, but it went a little further than that”. Mr McCrudden went on to refer to the contents of his notes and to explain that, in the way the judge had put the matter, it had carried a connotation which had not formed part of his submissions. His Honour corrected that matter in the presence of the jury.

80 In paragraphs 6 to 8 of his affidavit Mr McCrudden expressed opinions about aspects of the summing up. He said that he did not object to it because of his view that to do so would simply draw the jury’s attention to adverse comments made by the trial judge and thereby tend to exacerbate the problem. Mr McCrudden went on to express the view that, in retrospect, he should have made an application for a discharge of the jury at the conclusion of the summing up. Trial counsel has a duty to the Court to take any appropriate objection and to seek redirections: R v Abusafiah (1991) 24 NSWLR 531; R v Roberts [2001] NSWCCA 163. In determining whether in the atmosphere of the trial the judge’s interventions during the course of evidence and/or the balance of the summing up worked any unfairness to the accused it is relevant to inquire whether experienced trial counsel made complaint at the time. The expression of counsel’s opinion close to eighteen months after the trial that in retrospect he considered he should have made an application for a discharge is not evidence which to my mind bears relevantly on the issues raised by this ground of appeal. I would respectfully endorse the observations of Howie J (in a judgment with which Giles JA and Carruthers AJ agreed) in R v Moussa [2001] NSWCCA 427 at paragraphs 56-62 in this regard.

81 During the course of the summing up the trial judge gave clear and emphatic directions as to the onus and standard of proof. He directed the jury that they were the sole judges of the facts and gave an unexceptional direction that they were to put to one side any opinion he had expressed (save in so far as it accorded with an opinion independently arrived at). His Honour put the appellant’s case both by reference to the evidence the appellant had given and to the submissions advanced by his counsel. I am not persuaded that the summing up lacked balance or undermined the defence case such as to have deprived the appellant of a fair trial.

82 As to the challenge based upon his Honour’s interventions during the evidence of the appellant, I consider that in a number of instances these are explicable upon the basis of the difficulties experienced in taking the evidence of the appellant through an interpreter. This does not explain all of the matters to which Mr Hamill directed attention. In particular, the passage set out in paragraph 66 above, in which his Honour questioned the appellant concerning the difference between Venezuela and Amsterdam might be thought to have been unwise. It has the appearance of going beyond an endeavour to clarify an aspect of the evidence and to have the flavour of cross-examination. However, having examined each of the passages complained of in the context of the lengthy examination of the appellant I am not persuaded that the trial judge’s interventions were such as to have conveyed to the jury that he was convinced of the guilt of the appellant such as to have deprived the appellant of a fair trial.

83 I would reject the second ground of appeal. It flows from this that I would propose that the appeal against conviction be dismissed.

84 The appellant also seeks leave to appeal against the severity of the sentence imposed upon him.

85 In his written submissions Mr Hamill developed two challenges to the sentence. The first was expressed as “parity/relativity in the light of Salgado-Silva’s reduced sentence.” It was noted that the trial judge found Salgado-Silva was “more senior” in the organisation than was the appellant. This had resulted in a heavier sentence being imposed on Mr Salgado-Silva. A non-parole period of thirteen years was fixed with respect to the sentence imposed on Salgado-Silva with a non-parole period of eleven years being specified in the case of the appellant. It was submitted that this proportion was appropriate having regard to the different roles of the two offenders.

86 We were referred to the decision of this Court in R v Salgado-Silva [2001] NSWCCA 423. The Court rejected a challenge to the severity of the head sentence imposed on Salgado-Silva but did intervene to reduce the non-parole period to one of eleven years and four months. In Mr Hamill’s submission the reduced non-parole period to which Salgado-Silva is subject gives rise to a justifiable sense grievance on the part of the appellant: Postiglioni v The Queen (1997) 189 CLR 295.

87 The second ground of challenge to the sentence drew attention to his Honour’s observations (at page 18 of the reasons for sentence) concerning the significance of the quantity of the drug to a consideration of the objective seriousness of the offence. His Honour referred to the decision in Regina v Wong [1999] NSWCCA 420; 48 NSWLR 340. That decision has since been overruled in Wong v The Queen [2001] HCA 64; 76 ALJR 79.

88 His Honour made a careful review of a large number of decisions of this Court concerning the sentencing of offenders in relation of the importation of prohibited drugs. He referred to the guideline judgment in Wong observing that the question of the quantity of the drug involved had not been held to be determinative in that case since other aspects of the objective and subjective considerations remained relevant in the exercise of the sentencing discretion. His Honour found that the appellant and Salgado-Silva were in the position of being middlemen in this enterprise. No challenge is advanced as to that finding.

89 The appellant was convicted of importing into Australia a quantity of cocaine being not less than the commercial quantity. I do not consider that a challenge to the head sentence of sixteen years imprisonment, notwithstanding the circumstance that the offender was a person of good character, can be sustained. If it be said that the sentencing judge erred by the application of principles taken from the guideline judgment in Wong, I would not be persuaded that some other, less severe, head sentence is warranted in law.

90 The non-parole period fixed by his Honour was of the order of seventy-five percent of the head sentence. In sentencing federal offenders a non-parole period of seventy-five percent is reserved for the worst category of case. I see no reason to treat this case as falling into that category. In the light of this Court’s determination in Salgado-Silva reducing the length of that offender’s non-parole period I consider there is substance to that part of the challenge to the sentence which addresses the length of the non-parole period.

91 The Orders that I would propose are:

(i). Dismiss the appeal against conviction;

(ii). Grant leave to appeal against the severity of sentence;

(iii). Allow the appeal against sentence;

(iv). Confirm the sentence of sixteen years to commence on 3 November 1999, set aside the non-parole period imposed in the District Court and in lieu thereof specify a non-parol period of ten years and eight months. The first date upon which the appellant will be eligible for release on parole is 2 July 2010.


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