Regina v Mascaro-Varillas - [2005] NSWCCA 399

No judgment structure available for this case.

Reported Decision:
157 A Crim R 355

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Mascaro-Varillas [2005] NSWCCA 399

HEARING DATE(S): 4 November 2004

JUDGMENT DATE:

22 November 2005

JUDGMENT OF:
Simpson J at 1; Adams J at 2; Davidson AJ at 66

DECISION:
Application dismissed

CATCHWORDS:
Plea of guilty - Application to withdraw - Claim that facts disclosed no offence committed - Claim of overbearing claim of abuse of process - Claims rejected - Leave refused

LEGISLATION CITED:

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990
Customs Act 1901 s233B(1)(d)
Extradition Act 1988
Justices Act 1902 s51A

CASES CITED:
R v Courtney-Smith (No 2) 48 A Crim R 49
R v Damien Parkes [2004] NSWCCA 377
R v Fan (1991) 24 NSWLR 60
R v Leff (1996) 86 A Crim R 212
R v Mascaro-Varillas [2002] NSWCCA 524
Toro-Martinez (2000) 114 A Crim R 53

PARTIES:
Regina
v
Fernanao Eduardo MASCARO-VARILLAS

FILE NUMBER(S):
CCA 2004/1698

COUNSEL:
M M Cinque (Crown)
Applicant in person

SOLICITORS:
Commonwealth Department of Public Prosecutions
Unrepresented

LOWER COURT JURISDICTION:
District Court

LOWER COURT JUDICIAL OFFICER:
Morgan DCJ

2004/1698

SIMPSON J
ADAMS J
DAVIDSON AJ
Tuesday 22 November 2005

REGINA v Fernando Eduardo MASCAR0-VARILLAS

Judgment

1 SIMPSON J: I agree with Adams J.

2 ADAMS J:

Introduction

3 On 13 April 2000 the applicant appeared in the District Court and adhered to the plea of guilty he had entered in the Local Court on 17 February 2000 to a charge under s233B(1)(d) of the Customs Act 1901 that, between 23 May 1999 and 3 August 1999, he was knowingly concerned in the importation into Australia of a commercial quantity of cocaine. The sentence proceedings took some five days. On 27 October 2000 the applicant was sentenced to imprisonment for fifteen years with a non-parole period of eleven years to commence on 3 August 1999, the date on which he had been taken into custody in the United States. The quantity of pure cocaine was almost three kilograms.

4 By the appropriate form dated 1 November 2000 the applicant appealed to this Court, apparently against his conviction. The notice of appeal was completed and lodged by the solicitor then acting on his behalf, Ms Anita Betts. There is an indication that, perhaps, the wrong notice was used since, under the heading “Grounds of Appeal or Application” the words were inserted “Sentence was manifestly excessive. Further grounds to be advised”. It is scarcely surprising, therefore, that the Registrar enquired about the nature of the applicant’s appeal. In a letter dated 19 February 2002 the applicant stated that he wished to “clarify that [he was] only appealing on the severity not the conviction”. On or about 4 April 2002, the Registrar sent a Notice of Abandonment of conviction appeal to the applicant, noting his indication that it was desired only to appeal against severity and requesting him to sign the form and return it. There is no record of its having been returned.

5 The applicant’s appeal against his sentence was heard on 2 October 2002 and, on 23 December 2002, this Court allowed the appeal in part and reduced the non-parole period to ten years: R v Mascaro-Varillas [2002] NSWCCA 524.

6 By Notice of Appeal dated 7 September 2003 but filed with the Court on 15 March 2004 the applicant appealed against his conviction. The ground upon which he relies is that, in all the circumstances, he should be permitted to withdraw his plea of guilty. The Director of Public Prosecutions opposes the grant of leave both to go behind the Notice of Abandonment and to permit the applicant to withdraw his plea.

Factual background

7 The circumstances of the case are usefully and adequately summarised for present purposes in the judgment of the Court of Criminal Appeal as to the appellant’s sentence. He was unrepresented. In light of the case now mounted by the applicant it is, I think, useful to set out the case as it then appeared. The following is taken from the judgment of Smart AJ (with whom the other judges agreed) –

Customs Act

5. There was a dispute as to the precise role played by the applicant and a large amount of evidence was taken on this issue. This bore upon the extent of the applicant's criminality.

6. About 8 am on 23 May 1999 Reiner Aussem a German national who normally resides in Peru arrived in Sydney on a Qantas flight from Buenos Aires having travelled from Santiago, Chile. [Aussem gave evidence at the sentencing proceedings for the prosecution.] A drug detector dog reacted to Aussem. Numerous packages were found strapped to his body. Australian Federal Police (AFP) attended at the airport and at 9.20 am conducted a recorded interview during which he provided the following information:

(1) He was recruited by a Peruvian national known to him as Ivan Nunez (the applicant) in Chile to take a quantity of cocaine to Sydney for $10,000.

(2) Nunez strapped the packages containing the cocaine to his body in a hotel room in Chile.

(3) He was told to check into the Carlton Crest Hotel on his arrival in Sydney and telephone Nunez. A short time later he would receive a telephone call from an unknown person in Sydney who would then attend his hotel room where the exchange would take place.

7. Aussem agreed to assist the AFP in a controlled delivery of the cocaine to the intended recipient in Sydney. He was conveyed to AFP headquarters where 17 packages were removed from his waist, thighs and calves. The gross weight was 4.066 kilograms with the pure weight of cocaine as earlier mentioned. On 23 May 1999 a controlled operation certificate was issued. Between 23 May and 4 June 1999 Aussem assisted the AFP in an attempt to deliver the cocaine to the intended recipient. During this period Aussem made and received many telephone calls from the applicant and a man called Fabian (aka Stephen Diaz)

8. About 3 pm on 23 May 1999 Aussem telephoned the applicant from the Carlton Crest Hotel. The applicant asked, "How did it go? All went well?" Aussem responded affirmatively but complained that he did not have much money. The applicant told him to go to Western Union and collect some money. He would telephone the following day with a confirmation number. Aussem expressed concern that there was nobody there to meet up with him. The applicant said that someone would come and see Aussem in a couple of days. The applicant told Aussem that the reason why someone was not there was because the person's father had died in Miami and he had not been able to go.

9. On 24 May 1999 the applicant telephoned Aussem at 2.29 pm and told him that he would send a remittance of $600 the next day and that a person named Fabian Iguezo would ring with instructions which Aussem should follow. The applicant told Aussem to deliver only one of the "four of those" to the person nominated by Fabian. The applicant told Aussem to move to another hotel. A few minutes later the applicant again telephoned Aussem and repeated that Aussem was to follow Fabian's instructions. The applicant confirmed that he would send money to Aussem to cover his living expenses and that Aussem should move to another hotel but not tell Fabian where he was moving. The applicant said Fabian would arrive in two or three more days and give Aussem instructions as he was "familiar with the place over there." The applicant said that Fabian would telephone so that they met over the telephone.

10. About 2.40 pm that day Aussem received a telephone call from a person calling himself Fabian Iguezo, on behalf of the applicant. Fabian said that he would be coming to Australia and would give Aussem the money owed to him. Fabian said that he would speak to the applicant and make arrangements for money to be sent to Aussem immediately for his living expenses. Fabian pressed Aussem about whether there were dogs in the Customs area and whether he had encountered any difficulties. Aussem insisted that he "went through quickly" and "nothing happened."

11. On 25 May 1999 the applicant telephoned and told Aussem he had remitted $US452.80, supplying the necessary confirmatory details. Over the next few days there were numerous telephone calls from the applicant to Aussem as to Fabian going to Australia and making arrangements for the packages to be handed over. The applicant asked Aussem about "the job" and he replied, "It was fine." On 26 May 1999 Aussem changed hotels.

12. On 27 and 28 May 1999 Aussem received a number of calls from the applicant in which he said that Fabian had not gone on the trip yet but his partner was in Australia and would telephone him. The applicant told Aussem to give the partner "eight" packages and he would give him $US7500 and to follow the instructions which Fabian would give him. Aussem received a telephone call from Fabian to the same effect. Fabian added that he was coming to Australia and that Aussem would not have any problems with him.

13. About two days later Fabian telephoned Aussem and advised that he was not coming to Australia and that he was going to arrange for a local person who spoke English to pick up the drugs and pay Aussem $US10,000. Later that day during the course of two telephone calls Fabian told Aussem to go to Hoyts Cinema complex in the city about 1.30 pm where he was to meet an Australian and receive $US7500. He was then to return to his hotel room, collect the drugs and deliver them to the Australian. Aussem attended at the Cinema complex but nobody approached him.

14. On 29 May 1999 Fabian told Aussem that the reason why nobody turned up at the meeting was that his friend was worried because he had been on Aussem's flight into Sydney and had seen a number of dogs at the airport and Aussem had been seen talking to the police. Aussem said he was just asking about his baggage. Fabian said he would send Aussem some money and they discussed the possibility of opening a safety deposit box in which to put the drugs.

15. Aussem had many telephone calls with the applicant as to the failure of anyone to appear at the cinema. The applicant became very agitated and said that if Fabian did not finalise the arrangements in Australia he would dump Fabian. The applicant said that Fabian was the person in charge of selling "my things" in Australia. The applicant said that Fabian was not the only one because he had another person who could sell things for him. On several occasions the applicant said that Fabian was scared. In one conversation the applicant told Aussem that he wanted him (Aussem) to be paid and that he (the applicant) wanted to receive his money and that he had a lot of money invested in these things. The applicant insisted:

‘Those things are not Fabian's, those things don't belong to anybody, they are mine.’

16. In a number of telephone calls Aussem complained to the applicant that no-one was coming to collect the packages and that he had been in Australia for some time with very little money. Aussem wanted to know what was going on and said that Fabian had stated that the applicant did not have the money to pay him (Aussem). The applicant asserted that he did have the money to pay Ausem $US20,000 easily and would do so. The applicant insisted that "those things" were his and explained that this was the first time he had sent items to Australia.

17. On 3 June 1999 on the applicant's instructions Aussem transferred from the Furama Hotel, Surry Hills to the Royal Gardens Hotel in Pitt Street in the city.

18. On 3 June 1999 the applicant telephoned Aussem and stated that a man named Perico would telephone and instruct Aussem where to meet him. bout 8 pm Aussem was telephoned by a person calling himself Perico who instructed Aussem to go to a bar where Perico would approach him.

19. After some finessing Sergio Irusta and Aussem met at the Civic Hotel, Goulburn Street, Sydney. A short time later they walked to the foyer of the nearby Royal Gardens Hotel. Irusta told Aussem that the person who had "rung him" was the applicant whom Irusta had known for a number of years. Irusta said that he would need to take the material first so that he could "earn" the money in two or three hours' time and bring it to him. Aussem replied that he would telephone the applicant from whom he had received different handover instructions. Irusta left the hotel a short time later.

20. About 11 am on 4 June 1999 pursuant to the applicant's telephone instructions Aussem went to the Chamberlain Hotel in Pitt Street. Irusta was seated in the hotel and remained so while Aussem was approached by an unknown male who had a brief general conversation with him. A short time later Aussem returned to the Royal Gardens Hotel.

21. Aussem received further telephone instructions from the applicant. In accordance with those he left the Royal Gardens Hotel about 11.40 am and waited for a short period on the corner in front of the hotel but was not contacted. That evening the controlled operation was concluded.

22. On 9 June 1999 the police, on checking the mobile telephone that Aussem had been using to contact the applicant found 18 new voice male messages, mostly from the applicant, insisting that Aussem contact him and bring "the things" back to South America.

23. On 10 June 1999 an AFP officer, codenamed "Jeff" received a telephone call on the covert mobile phone from the applicant who asked for Aussem. Jeff said that Aussem had sold half a kilogram of the drugs and had given Jeff the remaining 3.5 kilograms. The applicant said he would call Jeff back.

24. On 15 June 1999 the applicant telephoned on the covert mobile phone and asked Jeff for Aussem. When told that Aussem thought that the applicant was cheating him of the money the applicant said he would send the money but first he needed to talk to Aussem.

26. On 21 June 1999 Jeff telephoned the applicant, said that he could sell the drugs and asked how much he wanted for each kilogram, stating that he proposed to sell it to someone other than Perico. The applicant said "ah you sell my my my things". The applicant, when asked, said that Perico had been going to give him "ah, he about um 55 um thousand dollars … one kilo." After some discussion the applicant said he wanted $US45,000 a kilogram, stating "yeah forty five the rest, the rest, the rest for you."

‘if you can sell … that thing for me … I think, right if you call me you're a nice person right [and] we can … make future business.’

28. The applicant remarked that he had always sent (drugs) to Europe and the USA but this was his first time to Australia and he could always do that again. The applicant said that there was no problem to meet Jeff in Europe or the USA. Jeff told the applicant he would call him back in three days and update him on the sale of the drugs.

29. On 25 June 1999 Jeff telephoned the applicant and spoke with an unknown male and reported on the progress of the sale of the drugs. He expected to have the money early the next week.

30. From late June and throughout July 1999 there were numerous telephone conversations between Jeff and the applicant as to how the moneys received from the sale of the drugs should be sent to the applicant. He wanted the moneys sent to various people by electronic means. Jeff refused, pointing to various difficulties. Jeff insisted on a face to face meeting. Ultimately they agreed to meet in San Jose, California. Jeff travelled to San Jose. On 3 August 1999 the applicant telephoned Jeff, having arrived in Los Angeles. They agreed to meet at the San Jose International Airport and did so.

31. The applicant asked where the money was and told Jeff that he had stuff in Chile for $US2000 a kilogram. He asked Jeff if he could get his people to move it from there to Australia. A short time after that Jeff made a telephone call to an undercover DEA officer and asked him to bring the money. That officer entered the airport terminal and placed a bag containing $US150,000 between the applicant and Jeff. The prisoner asked how much money was in the bag and Jeff said "155". The applicant pointed to a number of people in the area whom he feared may be police.

32. The applicant told Jeff that his real name was not Ivan but Fernando and showed Jeff his passport in his true name. The applicant and Jeff were approached by US Task Force agents who arrested the applicant. Amongst the applicant's belongings was a small black wallet containing some business cards. Some of those cards mentioned the name "Reiner Aussem", telephone number 00 6129281-0333" being the telephone number of the Furama Hotel, Surry Hills where Aussem had stayed. Those cards contained the names of "Felix Fernando Ruiz" and "Jorge Lorenzo De La Cruz", being the persons to whom Jeff was asked to send money in Peru and the number (408) 838 0258, being the telephone number of the covert mobile phone in the United states used by Jeff.

33. On 10 January 2000 in Sydney the applicant participated in a recorded interview with AFP agents with the assistance of a Spanish interpreter. The interview lasted from about 11.36am to 4.14pm and covered many matters. There was a break between 1.06pm and 2.12pm and some other fairly short breaks. While the applicant made admissions as to what had happened and the role he played, he also sought to shift most of the blame onto others. On his account he was an intermediary acting on the orders of others, especially Stephen Diaz (Fabian) who emerged, on the applicant's account, as the true principal and directing force of a business which supplied cocaine.

34. The applicant said that he first met Reiner Aussem in New York in about March/April 1999. He was one of a group of people involved in cocaine trafficking. His job was to take cocaine to Australia and other places. The applicant said that in Lima he was told to go to New York by Diaz to look after Aussem. A young man, El Chino, linked up with them. He gave Aussem some money in return for some cocaine.

35. The applicant said that he was paid $US2000 for looking after Aussem. After a few days the applicant, a Peruvian, and Aussem, a German national, returned together to Lima, Peru, with the applicant remaining in Peru where he lived and Aussem going to Dinjillo. At one stage the applicant was asked by Diaz to go to Chile to look after Aussem. It had to do with cocaine. At a later stage the applicant collected Albino at the airport in Chile and booked him into a separate hotel from those in which the applicant and Aussem respectively were staying.

36. The applicant said that he was aware that Aussem received some cocaine while he was in Chile with Aussem and that he brought that cocaine to Sydney. The applicant denied that he gave the cocaine to Aussem and that he strapped it to Aussem's body. The applicant insisted that both in New York and Chile a man called Carlos, a Peruvian, supplied the cocaine and strapped it to Aussem's body. The applicant said that he did not actually see Carlos give Aussem cocaine or strap cocaine to Aussem's body but that was part of his job. The applicant said that he saw Carlos in Chile.

38. The applicant said that he only met Carlos once but that was over the telephone. He did not know where Carlos lived or how to contact him. Aussem did not see Carlos and could not give a description of him. The applicant said that he believed Carlos was going to give cocaine to Aussem.

39. The applicant said that after Aussem arrived in Sydney he began telephoning Diaz. Then Diaz instructed the applicant that he was to take the telephone calls from Aussem and the applicant did so. The applicant said that Albino had come to Australia on the same place as Aussem. The applicant had made a reservation for Albino at the request of Diaz. The reservation was made the day before Albino’s arrival in Chile.

40. The applicant confirmed that Aussem had said that he needed money so he (the applicant) had spoken to Diaz and told him that Aussem needed money. Some money was sent. The applicant stated that he had no money.

41. The applicant agreed that he was aware that there was a man in Sydney who was going to pick up the drugs from Aussem but that did not occur. The applicant said that in the conversations he had with Aussem, he (the applicant) just repeated what he was told to say by Diaz who, at that time, was near the applicant in Lima. The applicant said that he was not responsible for Aussem.

42. The applicant was unable to explain why he had so very many telephone conversations with Aussem if he, the applicant, had to refer everything to Diaz for decision, especially if Diaz organised the venture from the beginning.

43. The applicant said that when he instructed Aussem to change hotel rooms, this was done on the instructions of Diaz. The applicant confirmed that he expected all the way along that Aussem came to Australia to deliver some cocaine. As to the problems with the collection of cocaine from Aussem, the applicant stated that Diaz believed that Aussem was trying to swindle him with all that cocaine. The applicant said that Diaz held him responsible for what had happened.

44. The applicant said that he was offered $US5000 to go and collect the money ($US150,000) which Jeff said he had. Diaz was intimidating the applicant who claimed to feel responsible for what had happened. The applicant said it was his intention to collect the money from Jeff and confirmed that he had earlier asked Jeff to send to each of the two men (Ruiz and De La Cruz) in Peru $US10,000 via Western Union. The applicant agreed that he told Jeff that he had some more cocaine waiting for him in Amsterdam. However, in saying that he repeated something that was a lie.”

8 As appears from paragraph 5 a crucial part of the sentencing proceedings required the resolution of a controversy concerning the role played by the applicant in the importation. The course of the evidence was summarised in the following way by Smart AJ –

“45. The judge had the advantage of hearing an intense and extensive cross-examination of Aussem by counsel for the applicant. The cross-examination extended over three days and about 81 pages of the transcript. Aussem maintained that the applicant was the person who had organised for him to come to Australia, strapped the packages containing cocaine to his body and owned the drugs. Aussem denied knowing Diaz (aka Fabian) and said his contact with Diaz was limited to the telephone conversations he had with him when he (the applicant) arrived in Australia with the cocaine and that Diaz was the head of the organisation Aussem denied any knowledge of a person by the name of Steffan Diaz and of a person by the name of Joseph Albino.

46. The judge also had the advantage of hearing the applicant give evidence over three days and his cross-examination of 27 pages. He was born on 10 October 1971 and had lived all his life in Peru and had gone to University for some three years, doing a course in psychology. He did not complete his degree. He worked as a stockbroker on commission as well as selling clothes. In 1998 he worked as a fabric salesman in an import/export business. He had a de facto wife and two children.

47. The applicant said that he knew Diaz when they were children, but lost contact with him. In 1999 he ran into Diaz and they renewed their friendship. Thereafter they met socially quite often. One day Diaz asked him to go to New York to take care of a person. He was offered $US2000 to do this job. So the applicant went to New York and met Ausem there. Then a man called El Chino came and met with Aussem. He gave the applicant $US2000/ The applicant said that it was not his understanding that drugs were involved in this transaction. He and Aussem returned to Lima, Peru.

48. The applicant next met Diaz by chance in Miami. Diaz took him to meet Aussem. The applicant returned to Lima. After a period Diaz asked him to go to Chile and look after Aussem, that is “to be with him at all times.” The applicant said that he was to be paid $US1000 for doing this. The applicant said that the day before Aussem left for Australia Diaz asked him to pick up Diaz’ partner, Joseph Albino, from the airport. At Diaz’ request, the applicant made an airline reservation for Sydney. Diaz had given the applicant about $US2500 to give to Aussem for travelling expenses and he did so. Aussem told the applicant that he, Aussem, was going to Australia.

49. The applicant said that although he suspected Aussem was carrying drugs he never asked him. The applicant said that a man using the name Carlos telephoned him on behalf of Diaz on the day Aussem left for Australia and told the applicant that he, Carlos, was going to take care of Aussem. The applicant returned to Peru.

50. The applicant stated that he believed, but did not know, that Albino told Diaz that the police in Australia had arrested Aussem. This was a subsequent surmise. The next event was that Aussem telephoned the applicant on his mobile phone. Aussem said that he was okay and was going to a hotel and would let him know the details. The applicant said that he told Diaz. Aussem kept calling. Diaz gave the applicant instructions as to what to say. The applicant then detailed a number of problems which occurred, including the strained relationship which developed between him and Diaz.

51. The applicant said that during most of the many telephone calls between him and Aussem, Diaz was standing beside him telling him what to say. Diaz also gave the applicant instructions as to what to say if Aussem telephoned the applicant when Diaz was not present.

52. At one stage this exchange occurred between the judge and the applicant:

‘Q. This man Stephen {Diaz] thought he’d [Aussem] be more comfortable talking to you about $US500,000 worth of cocaine? Is that what you’re saying?

The applicant gave evidence about his negotiations with Jeff and endeavouring to collect $US150,000.

53. In cross-examination the applicant said that he was simply a person paid by Diaz to look after Aussem in Chile before he flew to Australia. The applicant claimed that he did not know that Aussem had anything to do with cocaine. He did not ask and was not interested. His job was to look after Aussem. From other evidence it appeared that at the very least the applicant strongly suspected that Aussem was involved in taking cocaine to Australia. The applicant asserted that he had no idea at the time Aussem left Chile that he had packets of cocaine taped to his body nor any inkling of the amount of cocaine or how it was packaged.

9 Smart AJ summarised the findings of the learned sentencing Judge in the following way –

“54…The judge rejected the applicant’s evidence that he merely repeated what he was instructed to say by Diaz.

55. The judge held correctly that the transcripts of the conversations between Aussem and the applicant and Diaz made it clear that the applicant was a principal in the organisation of the importation of cocaine into Australia. There was an abundance of evidence on which the judge could so find. Any other finding would have been surprising. The judge did not believe the applicant's account. It was incredible. What he said in evidence was inconsistent with the answers he gave in his recorded interview and what he said in his taped conversations.

56. The judge, as the evidence entitled her to do, rejected the submission that Diaz owned the cocaine and organised Aussem. The judge was satisfied that Aussem had not known Diaz previously and that Diaz had not recruited him. She thought that Diaz probably had some contacts in Australia and was to organise the distribution of drugs in Australia.

57. The judge was satisfied on the evidence (and correctly so) that the applicant was no stranger to drug operations and was not the innocent abroad who became reluctantly involved as he pretended.”

Grounds of appeal

10 The applicant filed the following grounds of appeal –

1. The applicant’s guilty plea was not a legitimate plea, it was wrongly founded and should not be accepted by the Court.

2. The wrongful application and lack of jurisdiction of the Customs Act 1901, for which the applicant was tried for the offence charged.

3. Miscarriage of Justice and Abuse of Process.

11 When this matter came on for hearing, the applicant was unrepresented and presented the Court with a 21-page document, described as “Grounds” which, as I understand it, set out the submissions that he wished to make in relation to his grounds of appeal. Following some introductory paragraphs described as “Background”, the applicant made a number of submissions under the heading “Plea of Guilty”. In substance, he made the following complaints –

“(i) He was mentally conditioned by legal advisers in the United States and in Australia together with other persons “to plead guilty with the intention of getting a benefit and discount for it”.

(ii) He was advised by a Ms Forbes to plead guilty in the absence of certain documentary material implicitly suggested to have been relevant to her advice and in the absence of important explanations and consultations.

(iii) That although he had been advised by Ms Betts to plead not guilty, she also had not seen any more than the police facts sheet, the applicant was in a state of confusion and “was convinced that pleading guilty was the only way to receive a lenient sentence in a country of which he knew nothing”.

(iv) The applicant was unable to withdraw his guilty plea because Ms Betts told him that she could not defend him if he did so “because of the Legal Aid guidelines”.

(v) “After three years of studying and preparing himself regarding his case and Australian Legal Legislation, the applicant can now see how mismanaged his case was” and his situation was never explained to him clearly to him by his legal advisers.”

12 The applicant developed these points by referring to the fact that the charge preferred against him in the United States was “orally withdrawn without prejudice” and that this fact was not disclosed to the Court by the Commonwealth Director of Public Prosecutions. Other submissions concerned the significance of the evidence of the activities of Mr Reiner Aussem and his denial at all times of “his concern with the success of this importation”. The applicant submitted that, because he was unaware of the essential elements of the charge of being knowingly concerned with the importation, he was unable to effectively plead guilty to that offence. The applicant also submitted that the law in Peru (where he lived at the relevant time) differed from that in Australia concerning the extent of involvement sufficient to establish the offence of being knowingly concerned in an importation and, in particular, asserting that in Peru mere knowledge that an importation was to or had taken place was sufficient for criminal liability and acts done following the commission by a principal offender of the offence did not “attract criminal responsibility as an aider, abetter, counsellor or procurer”. As best as I can understand it, this is essentially a submission that he could not be convicted in Australia for acts committed in Peru where the acts committed in Peru were insufficient to ground legal liability there.

13 The next heading in the applicant’s written submissions is “Jurisdiction”. The applicant’s argument noted first that the “Concept of importation is central to offences under s233B(1) of the Customs Act 1901”. The applicant submitted that everything that he had done concerning the arrival of the drugs in Australia had been done outside Australian territory before any importation occurred. He submitted, therefore, that “the acts of aiding and abetting were in Chile” so he could not be guilty of the offence of being knowingly concerned with the importation into Australia of the drugs since at the time he did anything, no importation had occurred and what he had done took place in Chile. He also argued that the effect of Mr Aussem’s evidence at the sentence proceedings was that the importation would have occurred whether the applicant had been involved or not. The applicant also submitted that, since the applicant was not found and apprehended in Australia but in the United States and since the acts allegedly constituting the alleged offence were committed in Chile, s233B(1)(d) of the Customs Act 1901 did not apply to his case but rather it was covered by the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990.

14 The final heading in the applicant’s written submissions is “Miscarriage of Justice and Abuse of Process”. This discussion is not altogether easy to understand but, as I apprehend it, the applicant complains that he was not made aware by his lawyers of the procedures of a trial, as to voir dire, the essential elements of the charge and the nature of the Crown case. He also, as I think, complains that reference was had by the Court to telephone calls which did not actually involve him as a participant. The applicant also complains that he was charged in the United States upon the same facts as alleged in the Australian charge for the purpose only of holding him unlawfully in custody in the United States whilst the Australian prosecutors arranged to commence extradition proceedings and issue a warrant. He complains that the Extradition Act 1988 and the Extradition Treaty with the United States do not permit the Courts to “withdraw a prosecution” even though at a later point the United States’ proceedings are “dismissed without prejudice”. He complains that when he was arrested in the United States there were no outstanding warrants for his arrest or extradition from any relevant agency and his description and the statement of the existence of a warrant of arrest “were fabricated or produced on 11 August 1999, eight days after [his] arrest”. The applicant submits that the Commonwealth Director of Public Prosecutions and those acting for him misled the Court by omitting to inform it that, although the applicant was arrested on 3 August 1999 [as he alleges] upon the Australian charge, he was actually arrested by United States’ authorities under – as I understand him to say – a charge or charges comprising “the same set of facts and the same conduct as the offence charged in Australia” before he was “officially detained for provisional arrest for extradition to Australia” on 12 August 1999. Lastly, under this heading, the applicant submits that the Commonwealth Director of Public Prosecutions and in particular a Mr Moorehouse, pressed the prosecution against him even though he was aware of the facts stated by the applicant (which I have summarised above as best I can) for the purpose “solely to created a precedent with this case” thus “jeopardising their practice of the Australian legal system in furthering the public interest as well as breaching the confidence of the public interest in legal proceedings”.

15 Under the heading “Conclusion” the applicant summarised the material that I have set out above, though adding some additional details.

16 The final paragraph in the submission is as follows –

and not edited evidence

Customs Act

The hearing in this Court

17 Shortly before this matter first came on for hearing the applicant had filed a further document expressed to have been sworn under oath and described as “affidavit and outline of submissions…” This document asserted a number of facts and contained a number of arguments relating to his grounds of appeal. Both the facts asserted and the arguments proffered were similar to those contained in the document summarised in the previous section of this judgment. A large number of documents was exhibited to the “affidavit”. The applicant at first said that he did not rely on either the “affidavit” and the exhibited material but simply on the earlier submission. When it was pointed out to him that his submissions relied on a number of asserted facts including, in particular, those which related to the advice he was given by his various legal representatives and that without evidence as to those communications the Court could not consider them, the applicant after some hesitation said that he wished to rely on his “affidavit” and the exhibited documents. The Crown prosecutor quite properly intimated that she wished to cross-examine the applicant. Accordingly, the applicant was sworn and adopted his “affidavit”. Before moving to that cross-examination it is useful to summarise the material assertions of fact contained in the document. Leaving aside the statements that summarised elements of the Crown case or formed merely part of the chronology, the applicant made a number of assertions (as I have mentioned) about his legal advice. These may be summarised as follows –

(1) He was advised by his Counsel, Mr David Grunbaum, in the United States, to plead to guilty “in view of the plea bargain arraignment” (this is discussed below) but shortly afterwards the US indictment was withdrawn and he was formally placed under provisional arrest for extradition to Australia.

(2) Mr Mark Kennedy, a solicitor, saw the applicant at Central Local Court and told him that “the best way to obtain a good deal is to plead guilty…if not there is a possibility of receiving at least ten years.” Though “of course, Mr Kennedy has subsequently denied this”.

(3) The legal aid grant for the applicant dated 20 December 1999 had been applied for by some person unknown to the applicant, stating that he was an inmate in Silverwater Correctional Centre three days prior to his arrival in Australia from the United States. However, Mr Kennedy later sent to the applicant, when he asked for a copy of his file, a grant of legal aid which showed the date 12 January 2000.

(4) On three other occasions, when Ms Carmel Forbes “advised the applicant to plead guilty because that way it could get a discount”.

18 As I have mentioned, the applicant had appealed to the Court of Criminal Appeal following his plea of guilty in and the imposition of his sentence by the District Court but that appeal concerned only the severity of his sentence. The applicant’s submissions as to his failure to appeal against his conviction, as I understand them from his “affidavit and outline of submissions” are as follows –

(1) In response to a notice from the Registrar of the Court of Criminal Appeal in early February 2002 informing the applicant that his case might be listed for summary dismissal unless grounds of appeal were filed, the applicant wrote on 19 February 2002 stating his intention to appeal on severity only. The applicant argues that he did not sign a Notice of Abandonment and it was merely assumed that his conviction appeal was abandoned.

(2) The applicant’s letter of 19 February explained that he was seeking legal advice, the Legal Aid Commission having refused legal aid. The letter contained the following paragraph: “I would also like to clarify that I am only appealing on the severity not the conviction”.

19 Those grounds, however, were unambiguously limited to the question of sentence. Under the heading “Plea of guilty” the applicant merely stated, “I plea guilty at first instance and was in the Local Court”. There is no suggestion that his plea of guilty was induced by any improper means nor did the applicant suggest that the Court inappropriately acted upon it. On 17 July 2002, as the applicant points out, he informed the Registrar that the two-page attachment to his earlier letter was “a rough outline” of his argument and was not intended to be lodged as his grounds. He said that he wanted to provide a replacement submission and undertook to do so by 15 September 2002.

(3) I understand the applicant to be saying that he was unable to provide these submissions because he felt pressured by the Registrar to make a decision about abandoning the appeal and because of “the pressure put upon him” by Ms Betts concerning the abandonment of the appeal. In this respect the applicant has provided copies of correspondence.

The Registrar’s communications were in conventional form requiring the provision of grounds of appeal in accordance with the rules whilst Ms Betts’ letter merely informed him of the advice made available to the Legal Aid Commission that the proposed appeal was unmeritorious and suggested to the applicant that appearing for himself in the Court of Criminal Appeal might be unwise. None of these documents can, in my view, be regarded as “pressure”. At all events, they preceded by a very considerable margin the undertaking of 17 July 2002 to provide a replacement submission. The applicant does not suggest that, when he appeared for himself before the Court of Criminal Appeal he raised any issue relating to either a plea of guilty or the propriety of his conviction.

(a) The applicant was without legal representation and was unaware of the appeal process.

(b) The Registrar had placed him under pressure “and duress for a decision…to abandon the appeal”.

(c) The applicant “had been placed under pressure and duress for a decision…[by Ms Betts] to abandon the appeal”.

(d) There are fair prospects of success and the applicant did not fully understand the significance of abandoning the appeal and at all events it was done as a result of fraud or bad legal advice; there would be a miscarriage of justice if leave were refused.

20 I have already dealt with the suggestion of “pressure and duress” from both the Registrar and Ms Betts. There is nothing in these claims. It is evident from the two-page attachment to which I have already referred that the applicant was sufficiently aware of the appeal process to understand quite well the distinction between an appeal on the ground of severity and an appeal against the propriety of a conviction.

21 I deal separately with the applicant’s submissions concerning his plea of guilty, which repeat many of the arguments previously summarised from the applicant’s “Grounds” but add further details. These submissions appear to me to fall into three main classes: the first concerns the propriety of his arrest in the United States and his extradition to Australia, alleging that the Director of Public Prosecutions did not disclose that he had been charged in the United States upon the same facts as comprised the Australian charge for the purpose of unlawfully holding him in custody in the United States to give the Australian prosecutors time to commence extradition proceedings and issue a warrant which, upon this chronology, was issued after his arrest and not before; the second claims the applicant was “mentally conditioned by three legal advisers (in Australia and USA), two Federal Agents, inmates and Officers in gaol to plead guilty with the intention of getting a benefit and discount for it” and that the lawyers who advised him to plead guilty had not sufficiently understood the nature of the prosecution case or the evidence available and did not appreciate his lack of communication skills in English and understanding of the Australian legal system; and the third that the applicant pleaded guilty of a crime that he did not commit.

22 A further extensive submission, entitled “Last argument […etc]” was also provided by the applicant but it added nothing of significance to his earlier submissions and I do not think it necessary to deal with it separately. He also provided, after the hearing (and at the invitation of the Court) a submission concerning the application of R v Damien Parkes [2004] NSWCCA 377 – to which the Crown prosecutor had made a passing reference – to the issues in this case. This does not call for separate discussion.

The applicant’s evidence

23 In addition to the affidavit tendered in this Court to which I have referred, the applicant has given oral evidence before the learned sentencing Judge and in this Court, where he was cross-examined by the Crown prosecutor. The evidence that the applicant gave in the sentencing proceedings is sufficiently set out in the extract from the judgment of Smart AJ quoted above. Accordingly, I turn to the oral evidence given by the applicant in this Court, which was adduced in cross-examination by the Crown prosecutor. The first matter dealt with concerned the applicant’s assertion that he was advised by his American counsel, Mr Grunbaum, to plead guilty “in view of the plea bargain arraignment”. The applicant said that he was informed by Mr Grunbaum that if he pleaded guilty under the plea bargain system in America, he would get “no more than two, three years”. As I understand it, he complains, in effect, that the withdrawal of the American charges and his extradition to Australia frustrated this course of action. He produced to the Court a document called a “proffer agreement” which the applicant said amounted to an agreement between Mr Grunbaum, the Australian Federal Police and the relevant American law enforcement agency for the applicant to collaborate or assist and thereby obtain a benefit. It is unnecessary to deal with the terms of the proffer agreement in detail. It amounts to little more than an intimation of what might occur if the applicant co-operated with Australian and American investigators and the applicable procedures for obtaining and dealing with any information he might be able to provide. The document is unsigned by any party, though it has provision for signature by an Assistant United States’ Attorney and a designated Australian representative, the applicant and his attorney, Mr Grunbaum.

24 I would not doubt the authenticity of the document. However, no one, including the applicant, has signed it and the only conclusion that can be drawn is that the subject matter of the agreement had been discussed between Mr Grunbaum and the US authorities without any conclusion being reached. The document itself states –

“Finally, it is understood that the United States and Australia have made no representations or promises or offers of settlement in regard to current or proposed charges.”

25 The applicant does not say that, in fact, he ever gave the United States or the Australian authorities any information about his activities. The record of interview, though evincing a slight level of co-operation (he was plainly less than candid about his role in the importation). He himself described his “assistance” in this way –

“Part of assisting the police was to plead guilty. I never record the conversations. I know it was to give a recorded interview and that’s what I did. I pleaded guilty, I give a recorded interview. They asked me to tell them everything I know, and that’s what I did.”

26 In my view, the learned sentencing judge was justified in disbelieving almost the entirety of the applicant’s evidence that his role in the importation was a minor one and I would agree, with respect, with Smart AJ’s assessment of the evidence that he gave as incredible.

27 The applicant went on to say that Mr Grunbaum had nothing to do with his decision in Australia to plead guilty to the Australian offence but that the suggestion that it would be advantageous for him to do so was initiated by him and continued in conversation with the officers who accompanied him to Australia from the United States who told him “the best way is to plead guilty when I was in court, that something happened”. Whether or not that information was given, it is apparent from the approach taken by his counsel at the sentence proceeding that the applicant did not communicate any such suggestion to him. The applicant said, in effect, that he pleaded guilty not because he thought he was guilty, but “because I thought it was the best way…because I am sure, hoping they will help me, that’s why I thought I get punish but not as a principal not fifteen years with ten years”. In answer to questions from the bench, the applicant said, in effect, that his involvement in the importation – “the immediate concern here was in my mind” – was that he was merely looking after someone “like an executive person, but I was not giving nothing like, like drugs…I was just like a friend looking after him”.

28 Under cross-examination by the Crown prosecutor the applicant said that when Mr Kennedy spoke to him at Central Local Court and told him that the best way to obtain a good deal was to plead guilty, if he did not he would get ten years’ imprisonment. The applicant repeated his evidence that, although Ms Betts had advised him to plead not guilty, he did not take her advice because he believed he would otherwise get a ten year sentence and claimed that she “didn’t know my case” because she only had the Police Fact Sheet. That statement of facts has been included by the applicant in his appeal book. It is a fourteen-page document giving a detailed account of the nature of the prosecution case. Even if this document was the only document available to Ms Betts, it provided a sufficient basis for advising the applicant at the stage at which the proceedings had then reached that he should plead not guilty, quite apart from anything that the applicant might have said to her. The applicant agreed that Ms Forbes, who ultimately appeared for him when he pleaded guilty, simply advised him to do so but made no suggestion that doing so would lead to a lesser sentence. He said that she told him that the Crown had “a very strong case”. If this advice was given, it was entirely accurate.

29 The applicant recalled that Ms Betts had visited him often at the prison to talk about his case and that Mr Martin came out to see him on at least one occasion with her. He said that this visit occurred only a few days before the sentence hearing and they talked for only something like fifteen minutes. He said that in the course of this conversation the applicant asked him how long his sentence would be likely to be and that Mr Martin said, “No worries, in the worst case, six years”. He also says that the possibility that he might give evidence on the sentence proceedings was not discussed with him but that he was told that the proceedings would only take two hours and he would then be sentenced. He said that he had told his lawyers about what his own involvement was, commenting that he had already done this in the recorded interview to police.

30 The applicant told the Court that (consistently with what he said to the police) as long as he did not have any physical contact with the drugs, merely being present to help Mr Aussem, who was the one who was going to physically do something with the drugs, he was not guilty of any crime. He repeated his evidence that he had not asked Mr Aussem to take cocaine to Australia but agreed that he knew Mr Aussem was preparing to do so. He said that he did not ask him about it because he did not want to get involved, even though he “knew that Mr Aussem was involved”. He also agreed that when he spoke to Mr Aussem and the person known as Geoff, after the actual importation of the cocaine into Australia, he knew that he was talking about cocaine and that he was talking to him about “him trying to pass the cocaine on to someone else and sell it to someone else”. He agreed that when he was talking to Geoff, his conversation concerned selling the remainder of the cocaine and bringing about US$150,000 from the United States.

31 A transcript of the proceedings of 12 August 1999 in the United States District Court Northern District of California shows that the applicant was represented by Mr Grunbaum and a Spanish interpreter was available for the applicant. The transcript shows that a “new complaint” had been filed charging violation of relevant treaty with Australia. Mr Medrow, Assistant United States Attorney, applied, amongst other things, to “dismiss without prejudice” the then current complaint against the applicant. Mr Grunbaum responded, “Well, your Honour, with regard to the order of dismissal, I don’t believe that the defendant would have an objection to the dismissal of the charges pending against him in this…proceeding”.

32 It seems to me self-evident that Mr Grunbaum and the applicant were well aware of the timetable of relevant events concerning his arrest, detention and extradition. Furthermore, aside from the applicant’s complaint that what happened was a device, there is no evidence whatever to suggest that there was anything improper about the proceedings, a conclusion reinforced by Mr Grunbaum’s consent to the procedure.

33 The Crown tendered in the present proceedings an affidavit by Ms C Forbes sworn 25 November 2005. Amongst other things that affidavit annexes a transcript of the committal proceedings against the applicant of 17 February 2000. The applicant was initially unrepresented and stated that he pleaded guilty but did not agree with everything in the file. That, I think, was reference to the summary of the prosecution case, said to be some seventeen pages long. Ms Forbes therefore initially appeared for the applicant but sought and obtained leave to withdraw upon the ground that no aid was available in committal proceedings for Commonwealth charges. It then appears that Ms Betts, a solicitor who was otherwise present in Court, assisted the Court as amicus curiae because of the apparent inconsistency between the applicant’s statement that he wished to plead guilty but that he disputed some of the matters relied on by the prosecution. Ms Betts said that she “had spent considerable time with the defendant in relation to this matter” together with (as I understand it) an interpreter and indicated to the Court that the applicant was “now in a position to enter a plea of guilty under s51A to the charge of knowingly concerned”. Ms Betts informed the Court that there were some matters in dispute in the facts but that they did not affect the elements of the offence and would need to be resolved in the District Court. Accordingly, the applicant was committed for sentence. Ms Forbes’ affidavit states that she had no specific recollection of the events described by the applicant in his evidence to this Court but her practise as duty solicitor (which task she was undertaking at the time of the applicant’s committal) was to go through the brief of evidence with the defendant and give him or her advice, only to enter a plea of guilty on clear instructions to do so and to explain the procedure under s51A of the Justices Act 1902.

34 Ms Betts has provided an affidavit which was tendered by the Crown in these proceedings. She recalled some of the events of that day. She said that she recalled a conference with the applicant for about two hours discussing with him court procedure and his status. She denies advising the applicant to plead not guilty. She says that she discussed the elements of the offence with him and that the material given to her by the prosecution (I think, the summary to which I have already referred) read to the applicant by the interpreter. She said that she took instructions from him which were to plead guilty but there was a dispute on the facts as to his role. After the applicant was committed for trial Ms Betts said that she acted for him on an assignment of legal aid and briefed Mr Andrew Martin of counsel in those proceedings. She denied ever saying to the applicant that if he withdrew his plea of guilty she would not be able to defend him because of legal aid guidelines.

35 Annexed both to the applicant’s affidavit and also to Ms Betts’ affidavit is a schedule of visits made by her to the applicant accompanied on a number of those visits by a Ms Sotto, who was a translator. That schedule shows over twenty visits made by Ms Betts to see the applicant. Ms Betts recalled that at some stage Ms Sotto translated intercepted telephone calls which had been included in the brief of evidence. The document records a visit by Ms Betts and Mr Andrew Martin to the applicant on 10 April 2000. Ms Betts recalls that conference which, she said, took between two and a half and three hours and occurred before the sentence proceedings commenced. She is certain that, during the conference, the applicant did not raise with either her or Mr Martin the possibility of withdrawing his pleas of guilty.

36 I have already mentioned that Mr Mark Kennedy was the applicant’s solicitor at an early stage. In an affidavit by Ms Gabrielle Drennan, Senior Assistant Director in the Sydney office of the Commonwealth Director of Public Prosecutions, it appears that she spoke to Mr Kennedy, outlined to him what had occurred in this Court, provided him with a copy of documents and asked him to inform her whether he was in a position to swear or affirm an affidavit about the matter. In reply, Mr Kennedy stated that he declined to draft any affidavit in the matter.

37 I can understand why Mr Kennedy did not think it appropriate to draft an affidavit. Nevertheless, I find it difficult to understand why he was not prepared at least to provide a statement relative to the matters about which he was asked. Of course, the Director could have subpoenaed him but to do so in the absence of knowing what he might say could be simply to waste the time of the Court. I think it was reasonable for Ms Drennan to seek the assistance of Mr Kennedy. Solicitors are officers of the Court and, if they are able to assist the Court by giving evidence as to relevant matters – especially in a criminal case – they should be prepared to do so subject, of course, to their professional obligations in particular client/legal privilege. It is clear, however, that client/legal privilege was not an issue in this case. I do not seek by these observations to criticise Mr Kennedy. After all, he only declined to draft an affidavit. However, he was actually only asked whether he was in a position to swear or affirm an affidavit about the matter. He was not asked to draft one. I raise this matter only because I think it should be made clear that solicitors are not entitled to consult merely their own convenience when asked to give evidence in proceedings although, of course, they are entitled to insist that they would not give evidence voluntarily. In this case it was appropriate that Mr Kennedy should be approached on behalf of the Director of Public Prosecutions and appropriate that he should have assisted in the investigation of the issues raised in the appeal. Since Mr Kennedy has not had the opportunity to respond to these observations I would not criticise him for the approach which he has adopted. However, I hope that legal practitioners will take note of what I have said.

38 Mr Andrew Martin of counsel provided an affidavit which was relied on by the Director. He said that he recalled little of his dealings with the applicant but set out his best recollections which were, however, unaided by contemporaneous notes or documents. Mr Martin said that when he first encountered the applicant he was undecided as to whether or not to maintain his plea of guilty when the matter came to the District Court. He said that his instructions from the beginning were, and remained, that the applicant was not a principal in the transaction leading to the attempted importation and that he acted in fear for the safety of his family. Mr Martin said that he advised the applicant of the benefits of an early plea and took detailed instructions on his involvement particularly with Mr Aussem, “which formed the basis to a challenge to the facts asserted by the prosecution on sentence”. Mr Martin denies that the applicant’s account of the conversation with him is correct, in particular, denying words to the effect, “No worries, in the worst case six years”. Mr Martin said that he did not use the words and that, at all events, he would not suggest any particular sentence to a client but that his practise was always to express himself in terms of “a range”. He conceded that he might have suggested six years as a “best case”, based on the Court accepting that the applicant was a minor figure in the conspiracy, acting under a degree of duress, but certainly not as a “worst case”. Mr Martin also said that he believed that at least one of the conferences with the applicant lasted “in excess of two hours”.

39 Mr Martin made the additional observation that throughout his dealings with the applicant he was concerned that even with the assistance of an interpreter he had difficulty understanding what was asked of him and how best to express himself. Mr Martin said that he struck him as a very unsophisticated, perhaps naïve, person who had in his dealings with Messrs Aussem and Diaz, come into contact with persons who, whilst perhaps not more intelligent, were very much more wise to the ways of the world than he”. It is perhaps convenient to state at this juncture that, however the applicant struck Mr Martin, the way in which he gave his evidence at the sentencing proceedings seemed to me to show a sophisticated degree of cunning and calculation. The submissions made to this Court, both at the time of his initial appeal and on the present application – admittedly a long time after Mr Martin’s observations – show a high degree of literacy in English as well as the ability to articulate at a level well beyond the naive a far from simple factual and legal case.

40 On 1 April 2005 the matter came before this Court again. The affidavits to which I have already referred were tendered without objection although the applicant insisted that Ms Betts had indeed advised him to plead not guilty. He provided an additional document called “Last argument regarding Crown submissions” and gave some further evidence in which he adopted comments made in the submissions about the affidavits filed by the Crown and upon which he was cross-examined. Nothing new emerged except perhaps that the applicant, when repeating that Ms Betts and Mr Martin said that a plea of guilty was “the right decision” the applicant added, “we don’t talk about the pleading any more, we talk about the challenge of the facts in Court”. This indicates to me that indeed the issue of his role had been discussed before the sentence proceedings and the line taken at those proceedings reflected a course of action which the applicant fully understood and with which he agreed.

41 The applicant’s written and oral arguments to the Court on this occasion refer to a number of relevant authorities about the elements of the offence. The applicant said that he prepared the written submissions himself. If so, they demonstrate a very sophisticated understanding both of English and the relevant legal principles. The central point of the applicant’s case upon his guilt of the Australian charge is set out as follows –

“How the criminal liability (Australian interpretation) could apply to a charge of aiding and abetting where the acts that constitute the criminal liability occurred in a foreign country where the concept and interpretation of aiding and abetting is different than in Australia” for example: In Peru “knowingly concerned” does not exist, therefore cannot attract criminal responsibility. How criminal liability could apply when an undercover AFP agent organised the giving of the money outside Australia and territories, in a foreign country, far beyond his legal powers and geographical boundaries, causing the applicant to go to the USA and commit an alleged offence over there, where also criminal liability is interpreted in a different way than in Australia?”

Conclusion as to applicant’s plea

42 As is evident from the above account, the applicant has given evidence on a number of occasions, including twice in this Court. Additional relevant material includes the telephone calls to which he was a party, and the affidavits tendered by the Crown. In the material produced to this Court the applicant has maintained the incredible and patently dishonest case expressed in his sworn testimony before the sentencing judge. In my view, the applicant ought not to be accepted on any matter of fact important to his case which is unsupported by independent corroboration. The evidence of his various legal advisers as contained in their affidavits should be accepted.

43 Not only do I not accept that the applicant did not, at any relevant time, believe that he was not guilty of the charge to which he pleaded guilty, I consider that in all the circumstances this was extremely improbable. Also at a high degree of improbability is the applicant’s evidence, in effect, that his will in relation to his plea was overborne by the advice that he was given, although I would accept that he pleaded guilty because he accepted the advice that it would be advantageous for him to do so. In face of such an overwhelming Crown case such advice was not only correct it was advice which any competent legal practitioner would have been bound to put to the applicant in strong terms, having regard to the professional duty to give independent advice regardless of its attractiveness to the client.

The elements of the offence

44 The applicant maintains that, in part, his decision to plead guilty arose from a misunderstanding of the law. He submits that all that he did, in effect, was to assist Mr Aussem in his travel arrangements, aware that Mr Aussem was going to import drugs into Australia but deciding that what Mr Aussem intended to do had nothing to do with him, that the telephone conversations which gave the appearance of a greater knowledge and involvement in the entire transaction were not instigated by him, what he said was prompted by Diaz and that he only cooperated because he had come unwittingly embroiled in a criminal enterprise which exposed his family and himself to the risk of serious retribution should he not continue to cooperate.

45 I have already said that the evidence as a whole shows the applicant’s account to be false. Two points, however, appear to require some discussion. The first matter is the meaning of “knowingly concerned in the importation” of the drugs as that phrase is used in s233B(1)(d) of the Customs Act 1901 (as it applied at the time of the alleged offence). There are many judgments of this Court dealing with the meaning of this phrase but it is unnecessary to refer to more than two, each dealing with the element first of “importation” and second of “knowingly concerned”: R v Courtney-Smith (No 2) 48 A Crim R 49 and R v Leff (1996) 86 A Crim R 212. Dealing with the element of importation, the Court in Courtney-Smith said 48 A Crim R at 64 –

Yong

Kelly

Ashbury v Reid

Tannous

Lam

Lam,

Forbes

Lam

Customs Act

46 During the sentence proceedings the applicant gave the following evidence –

“Q: Did you understand that Mr Aussem was going to Sydney Australia? A: Yes, he told me, but I didn’t ask anything else, because my job was to look after him and that’s it.

Q: Do you know that Aussem was carrying drugs? A: never asked and I wasn’t interested in what he was doing.

Q: Did you suspect that he was carrying drugs? A: Yes but I was only to look after him when he have nothing with him …

Q: Aussem called you on the phone [from Sydney] was that the mobile phone that you had? A: Yes.

Q: What did he tell you? A: That he was okay. That he was going to a hotel and that he will let me know and I don’t remember very well.

Q: When you got that information on Aussem what did you do, did you tell someone else or something else? A: I told Stephan [Diaz].

Q: Did Stephan say that you were to do anything? A: At the beginning no.

Q: What was the next thing that happened? A: Well Reiner was calling me and it was a relationship like he would call me and we would talk and I would call him and then we would get instructions. I was given instructions that I would give it to him and that was fixed and then the programme was that then things started to get complicated and Stephan said that Reiner was working with Albeno together to pay a dirty trick on him and then the problems started, right there, because I was close to Reiner and I knew him well. He was the one calling me. That was the beginning and then supposedly I was agreeing with Reiner but he was working with Albeno to pay a dirty trick on Stephan. So Stephan was coming to me, talking to me about all that and it was like I was feeling responsible for it.

Q: Let me just stop you there. You said that Reiner called you and you were given instructions as to what to say to him. Who gave you those instructions? A: Stephan.

Q: You obtain the impression that Stephan was of the view that Mr Aussem and Mr Albeno were going to play a dirty trick on Stephan? Is that what you were saying? A: It’s not that I thought but he told me so.

Q: Stephan also said that it was your responsibility? A: Yes because I knew Reiner …

Q: You said that Mr Diaz had said it was your responsibility? A: Yes.

Q: Was Stephan Diaz ever present when you made phone calls or received phone calls from Aussem? A: Yes.

Q: Was that on more than one occasion? A: Yes.

Q: Can you tell us about those occasions? A: Most of the times. Most of the times.

Q:… [as to particular conversation where] Stephan actually made the phone call? A: Yes he passed the phone over to me.

Q: When he passed the phone over to you, was it your understanding that Stephan did not want to speak to this person, that you had to speak to this person? What was your understanding as to why he passed the phone over to you? A: Well he was telling me all the time that Reiner felt more comfortable with me, that it could have been better for me to talk to him. That’s why I was talking to me, because I knew him and all that.

Q: And once very fleetingly in Miami? Is that right? A: Yes, yes.

Q: This man Stephan thought he’d be more comfortable talking to you about $500,000 worth of cocaine? Is that what you are saying? A: I suppose it’s because I had been with him for one or two weeks in Chile.

Q: I see. Yes Mr Martin. Martin:

Q: Well when did you first realise there was cocaine involved in Reiner’s trip to Australia? A: Are you asking me my personal opinion or whether I knew something about it?

Q: Your personal opinion. A: When Reiner started calling me over the phone. Q: And did you think then he was talking to you about cocaine? A: At the beginning it was just like leave that and that’s it that’s none of my business but then things got so complicated that yes it was obvious that I had knowledge about it.

Q: Do you remember when that was after Mr Aussem came to Australia? A: Yes.

Q: When was that? A: I don’t remember. Q: I’m sorry I thought you said you did remember when it was? A: When was what?

Q: You realised you were talking to Mr Aussem about cocaine? A: When he started making phone calls.”

47 This is but a short extract from the offender’s evidence. The time frame involved is from about 3.00 pm on 23 May 1999 when Aussem telephoned the applicant from the Carlton Crest hotel The substance of those conversations is set out above in the extract from the judgment of Smart AJ and it is not necessary to set them out again.

48 In the record of interview given by the applicant to the Australian Federal Police officers on 10 January 2000 the applicant told the officers, in substance, that he had met Aussem in New York and that “my role was to look after him, like take him out to dinner, take him somewhere to have a drink … to look after him as if he was a high executive in a company, that kind of thing, something like that.” He said that he knew Aussem was part of a group of people involved in cocaine trafficking and that he had told those who had asked him to go to New York to accompany him, “I didn’t want anything to do with that if there were some physical presence of drugs. I didn’t want anything to happen with me – nothing to do with me. He told me that my role was simply to look after him, that I didn’t have to touch anything. So I thought well there is no risk in that. I’m not really doing anything out of this world.” The applicant gave a description of being with Aussem in a hotel room in New York, that another person entered the room and the applicant left, that he later returned after the other person left thinking that Aussem had handed over cocaine to that other man. He told the police about Stephan Diaz as being one involved in the supplying of drugs. The applicant also told police that through Diaz he had met Joseph Albino in Chile and that he had dropped him off at a hotel on the understanding that shortly after he was to fly on the same flight with Asussem to eventually come to Sydney. It is clear that the context for all this travel was the supply of cocaine in various places. The applicant repeated his absurd story of somehow having been inveigled into being the conduit for communications between Diaz and Aussem when Aussem had arrived in Australia. It is not necessary to go into this aspect of the case. It is clear that, from his record of interview – an account from which he never resiled – the applicant knew well when Aussem spoke to him that Aussem had come to Sydney having imported cocaine and was attempting to complete that aspect of his task.

49 The combination of the applicant’s own evidence before the sentencing Judge, his statement in his police interview and the terms of the telephone conversations in which he participated give rise to the inevitable conclusion that the applicant knew well that he was assisting Aussem in the completion of his task of importation. Indeed, this conclusion is inevitable from the applicant’s evidence alone. This knowing involvement is unquestionably sufficient to constitute the offence since, to use the language of the Court in Courtney Smith (No 2) what he did “is manifested in the venture which centred upon the importation”, in this case the safeguarding and remunerating of the courier, Aussem, and the safe passing on of the drugs to the Australian consignee and the receipt of payment for the consignment.

50 In Leff (1996) 86 ACR 212 James J (with whom the other members of the Court agreed) held, in effect, that the requirements of s233B(1)(d) were satisfied where an offender had come into the transaction after the drugs had entered the country but where the venture centred on the importation and would not cease until the cocaine had passed from the courier into the hands of the Australian buyer. In substance, that is at the very least the applicant’s role. The mere fact that he was outside Australia when the telephone conversations occurred is immaterial. They concerned the importation of cocaine into this country and communications with the courier designed to enable the venture which centred on that importation to be successfully completed. As it happened, neither the learned sentencing Judge nor this Court on appeal from his sentence, accepted the applicant’s case that he was a mere minor cog or, possibly, mere lubricant in the process, acting at the behest of the major participants. That is not a matter which calls for present discussion. The point is that, on his own words the applicant had unquestionably committed the offence to which he pleaded guilty. In substance, as it seems to me, he made admissions in his evidence in this Court to the same effect.

51 The applicant has, as I have mentioned, protested that everything that he did occurred outside Australia and that it was wrong that he could be brought to this country and prosecuted for an offence which, he asserted was no offence in either the country of his residence or in the United States where he was arrested. The commencing point of this protest is obviously wrong: a conversation that occurs with someone is Australia is as much an act that occurs in Australia as one that occurred in the place where the speaker holds the telephone. There is no doubt that the Australian parliament has constitutional power in respect of the knowing involvement by the applicant in the importation of the cocaine in this case. Authority is scarcely necessary to support this proposition but reference might perhaps be made to R v Fan (1991) 24 NSWLR 60 although that dealt with conspiracy to import. It may be that, when the applicant made the telephone conversations in question – quite apart from the arrangements to which in truth he was a party – the applicant thought he was not subjecting himself to the reach of the Australian criminal law. If so, he was mistaken in this belief but this provides no defence.

The Alleged Abuse of Process

52 The applicant attributes virtually the whole of the proceedings against him to an abuse of process. However, I have already extensively discussed a number of his complaints and propose to deal only with the significance of the American proceedings under this heading. The first point which I think needs to be made is (as is obvious from what has already been said) that the applicant was represented at all material times by an attorney who is identified in the transcript of proceedings of 12 August 1999 as an Assistant Federal Public Defender. Prima facie, therefore, he was fully qualified to advise the applicant as to all material questions affecting the proceedings in the United States, including those relating to extradition.

53 The criminal complaint filed in the United States District Court for the Northern District of California sworn 3 August 1999 was that –

“On or about May 23, 1999 to August 3 1999 in Santa Clera County in the Northern District of California and elsewhere defendant did … conspire and agree with another person to distribute cocaine, specifically 4066 kilograms of cocaine, and did specifically accept payment of $150,000 in payment for that cocaine, San Jose California in violation of title 21 United States code section 846.”

“32. For the above stated fact, there is probable cause to believe and I do believe that Fernando Eduardo Mascaro-Varillas, known as Ivan Nunez, was involved with conspiring to possess cocaine with intent to distribute, specifically 4.066 kilograms of cocaine, between Mat 23, 1999 and August 3, 1999 and that Mascaro-Varillas came to San Jose, California on August 3, 1999 with the intent of collecting $150,000 in connection with that conspiracy, in violation of 21 USC section 846.”

not

54 The applicant does not suggest that he was not guilty of the American charge. Indeed, it is clear that Mr Grunbaum was unaware of any defence that he might have to it since, according to the applicant, he advised him to plead guilty. I have already mentioned the proceedings on 12 August 1999. It is obvious from the transcript that all parties, including the presiding Magistrate Judge were well aware that a fresh charge had been filed “pursuant to the treaty with Australia”. As the Magistrate Judge said –

“…it alleges that on or about 11 August 1999 in Santa Clara County in the Northern District of California that the defendant did come to the attention of law enforcement at a time when the government of Australia had requested that a provisional arrest warrant issue for him with a view towards extradition in Australia. It’s summarising what’s alleged in the complaint. It’s alleged in the complaint that Australia…believes that you engaged in illegal drug activity in Australia. And they’re asking United States to arrest you so they can hold for a period of time. And I think under the treaty they have 60 days…?”

55 Mr Grunbaum advised the Court that he had a copy of the fresh complaint and the affidavit and waived any further reading of it. The Court advised the applicant of his rights in relation to extradition proceedings, in particular to determine whether there was any reason that he should not be returned to Australia under the treaty and as to his rights of appeal.

56 The affidavit in support of the replacement complaint discloses that the applicant “was charged with the importation of cocaine into Australia in violation of s 233B(1)(d) of the Customs Act” and stated that the offence “is provided for in article II of the Extradition Treaty between the United States and Australia.” The affidavit discloses, amongst other things that when the applicant arrived in California and met with the undercover police officer Jeff he was arrested for his involvement “in conspiring to possess cocaine with intent to distribute and for attempting to collect drug money generated from the scheme in San Jose”. The request for the applicant’s extradition is set out in the affidavit of a solicitor employed in the Sydney office of the Commonwealth Director of Public Prosecutions. That affidavit states unambiguously that the extradition of the applicant is sought for prosecution for the offence for which he was ultimately indicted.

57 On 5 November 1999 the applicant was brought before the US District Court for the Northern District of California again where he was once more represented by Mr Grunbaum. Mr Grunbaum was provided with all the documentation including the affidavit of the Australian solicitor to which I have referred and a supporting affidavit from an Australian investigator which, broadly speaking, reflected the Australian Federal Police statement of facts. Other detailed documents were provided as formally required for the extradition proceedings because of monitoring devices to listen to the applicant’s conversations with the Australian undercover officer. He was cross-examined by Mr Grunbaum as to the circumstances of the applicant’s arrest. Amongst other things Mr Grunbaum elicited (as was at all events self evident) that the two law enforcement agencies were working together and had planned to arrest the applicant as soon as the Australian undercover officer had handed over to him the $150,000. Mr Grunbaum elicited that there was no extradition request pending at the time of the applicant’s arrest on 3 August 1999. It is worth noting, moreover, that although it might be said that the applicant was induced to travel from Peru to the United States for the purpose of closing the drugs deal with the undercover Australian agent, yet it is plain that he did so entirely voluntarily. The prosecutor elicited from Mr Vandyke that the applicant “was in fact entirely agreeable to the idea of coming from Peru and meeting with [the Australian agent] in San Jose California” and had “said he was actually rather excited about getting to meet this man so that he would have another contact in the flesh that he would be able to use for his drug trafficking business.”

58 It appears that the only issue in the proceedings was whether the applicant was the person sought in the extradition warrant. The Court so found.

59 The warrant for the transfer of the applicant from the custody of the American authorities to agents of the Australian Government is dated 17 December 1999.

60 The papers disclose exchanges between a Mr Sheil of the extradition section in the Australian Attorney-General’s Department with a Mr Bullwinkel of the office of International Affairs in the United States Department of Justice discussing the possibility that the United States authorities might have a wider interest in the applicant than, I take it, the mere extradition to Australia for the purpose of his trial on the Australian charge. It is evident that these discussions were tentative and that, in the result they led nowhere. They occurred well prior to the proceedings of 14 November 1999.

61 It seems to me undoubted that the applicant not only committed an offence against Australian law but he also committed an offence under United States law. Although those offences depended on the same or virtually identical facts, the elements of the offence were not the same and, subject to any problem of double punishment, there was no reason in law why the applicant could not have been charged with both offences or for that matter convicted of both. In the result, it appears United States law enforcement authorities were content with withdrawing the American charges, obviously upon the understanding that the applicant would be prosecuted for his Australian offence. The fact that he had been arrested earlier on the American charge than the date of the extradition charge seems to me to be entirely immaterial in the sense that it does not reflect at all upon the appropriateness of either charge. I do not think that there is any evidence of impropriety and the mere fact that there were negotiations between the relevant law enforcement agencies as to the appropriate course of action which, no doubt, involved the balancing of varying and possibly competing policy considerations does not suggest any impropriety let alone abuse of process.

62 Whether considered alone or together with the other complaints made by the applicant, no abuse of process has been shown.

The Change of Plea

63 A useful discussion of the relevant authorities concerning the principles to be applied in determining whether to permit an offender to withdraw his plea of guilty were reviewed by Spigelman CJ in Toro-Martinez (2000) 114 A Crim R 533. Broadly speaking the test to be applied is whether a miscarriage of justice has occurred. In this respect Spigelman CJ made the following observations –

“[20] It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise…

Murphy

R v Cincotta

the plea of guilty was not really attributable to a genuine consciousness of guilt

Meissner v The Queen

‘A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.’

Maxwell

‘The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered.”

Murphy

Sagiv

in R v Davies

Sagiv

Murphy

64 As has already been said, whatever the applicant’s precise involvement, his own words demonstrate beyond any reasonable doubt his guilt of the charge of which he was convicted upon his plea of guilty. Moreover, I have no doubt that his plea was “attributable to a genuine consciousness of guilt”. I do not doubt that the applicant was motivated in pleading guilty by the hope that he would obtain thereby a substantial reduction in the sentence which would otherwise be meted out to him. The advice that he would be entitled to such a reduction would have been correct, accepting it would have been and was wise. Moreover, I do not accept the applicant’s evidence that, at all material times, he believed that he was innocent of the charge. The inevitable findings of the learned sentencing Judge should be accepted as demonstrating that he was deeply concerned with the importation of the drugs into Australia and that he always knew he was deeply concerned. In this sense, of course, I am using the term “concerned” as a word of ordinary parlance. It is self-evident that the applicant knew the extent of his true involvement and that, in ordinary English parlance, this amounted to being concerned in it. It is unnecessary to consider the niceties and possible refinements that the term might have in circumstances where an offender’s activities are connected to but some distance from (either preceding or following) the actual physical importation. Certainly, the applicant has not established, as he must, the facts upon which this Court could conclude that a miscarriage of justice occurred.

Conclusion

65 It follows that leave could not be granted to the applicant to change his plea and the application should be dismissed.

66 DAVIDSON AJ: I agree with Adams J.

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Citations

Regina v Mascaro-Varillas [2005] NSWCCA 399

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

R v Parkes [2004] NSWCCA 377

R v Mascaro-Varillas [2002] NSWCCA 524

R v Parkes [2004] NSWCCA 377

CITATION:	Regina v Mascaro-Varillas [2005] NSWCCA 399
HEARING DATE(S):	4 November 2004
JUDGMENT DATE:	22 November 2005
JUDGMENT OF:	Simpson J at 1; Adams J at 2; Davidson AJ at 66
DECISION:	Application dismissed

CATCHWORDS:	Plea of guilty - Application to withdraw - Claim that facts disclosed no offence committed - Claim of overbearing claim of abuse of process - Claims rejected - Leave refused
LEGISLATION CITED:	Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 Customs Act 1901 s233B(1)(d) Extradition Act 1988 Justices Act 1902 s51A
CASES CITED:	R v Courtney-Smith (No 2) 48 A Crim R 49 R v Damien Parkes [2004] NSWCCA 377 R v Fan (1991) 24 NSWLR 60 R v Leff (1996) 86 A Crim R 212 R v Mascaro-Varillas [2002] NSWCCA 524 Toro-Martinez (2000) 114 A Crim R 53
PARTIES:	Regina v Fernanao Eduardo MASCARO-VARILLAS
FILE NUMBER(S):	CCA 2004/1698
COUNSEL:	M M Cinque (Crown) Applicant in person
SOLICITORS:	Commonwealth Department of Public Prosecutions Unrepresented

LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ