Regina v Pulham

[1999] NSWCCA 202

CITATION:	Regina v Pulham [1999] NSWCCA 202 revised - 11/08/99
FILE NUMBER(S):	CCA 60542/98
HEARING DATE(S):	2 July 1999 (Orders made)
JUDGMENT DATE:	29 July 1999
PARTIES :	Regina v Mark Stephen Pulham
JUDGMENT OF:	Grove J at 1; Abadee J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0745
LOWER COURT JUDICIAL OFFICER:	Graham DCJ

COUNSEL:	Crown: Mr M Ierace & Mr R J Bromwich Appellant: Mr J. V Agius
SOLICITORS:	Crown: Commonwealth DPP Appellant: Murphy's Lawyers
CATCHWORDS:	Drug importation; Insufficient evidence that appellant "knowingly concerned" and strong defence evidence; Jury verdict constituted miscarriage of justice
ACTS CITED:	Nil
CASES CITED:	Nil
DECISION:	Appeal allowed; Conviction quashed; Verdict of acquittal entered.

1
IN THE COURT OF
CRIMINAL APPEAL

60542/98

GROVE J
ABADEE J
SMART AJ

Thursday, 29 July 1999

REGINA v MARK STEPHEN PULHAM

HEADNOTE

A parcel containing ecstacy tablets was posted from North London Addressed to DR at an address in Elizabeth Bay of which DR was the tenant about 4 years previously. The parcel became the subject of a controlled delivery. The present tenant took the parcel to the appellant. There was no evidence that either the present tenant or the appellant knew what was in the parcel. The appellant was charged with being knowingly concerned in the importation of narcotic goods.

HELD:

The Crown case was non-existent or at best "wafer thin". The evidence was insufficient to sustain conviction. There was a strong defence case. The jury should have had a reasonable doubt. The Crown did.

ORDERS

1. Appeal allowed

2. Conviction quashed

3. Verdict of acquittal entered.
IN THE COURT OF
CRIMINAL APPEAL
60542/98

GROVE J
ABADEE J
SMART AJ

29 July 1999

REGINA v MARK STEPHEN PULHAM
JUDGMENT

1 GROVE J : I agree with Smart AJ.

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IN THE COURT
OF CRIMINAL APPEAL
60542/98
GROVE J
ABADEE J
SMART AJ
Thursday 29 July 1999
REGINA v Mark Stephen PULHAM
JUDGMENT

2 ABADEE J: I agree with the reasons for judgment of Smart AJ.

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IN THE COURT OF
CRIMINAL APPEAL

60542/98

GROVE J
ABADEE J
SMART AJ

Thursday, 29 July 1999

REGINA v MARK STEPHEN PULHAM

JUDGMENT

3 SMART AJ: Mark Stephen Pulham appeals against his conviction of between about 1 May 1996 and about 4 July 1996 being knowingly concerned in the importation into Australia of narcotic goods, being about 32.6 grams of the drug ecstacy in the form of 400 tablets. He was sentenced to 18 months periodic detention. Based on the jury's verdict, the trial judge described the appellant as having played a "transitory role in the importation of a small quantity of ecstacy performed without any object of gain on his part".
4 At the conclusion of the hearing of the appeal on 2 July 1999 the Court allowed the appeal, quashed the conviction and stated that its reasons would be given later. I now set out my reasons for participating in those orders.
5 The appellant relied on three grounds of appeal but it is only necessary to deal with the third ground, namely that the verdict was unsafe and unsatisfactory that is, there had been a miscarriage of justice. To deal with this ground it was assumed but not decided that the judge had correctly admitted as coincidence evidence the arrival by post of a package in Australia on 15 May 1996 and the nature and content of the package. It was intercepted by Customs and examined by the Federal Police and contained ecstacy tablets concealed in a green candle along with some children's toys. The package was disguised as a child's present, postmarked North London and did not bear the sender's name or address. The package was addressed to "D. Hurford" at the appellant's address at Paddington. Mr. Hurford was the tenant of the premises from 1992 to 1994. The package was never delivered. It was held by the authorities.
6 About 23 June 1996, a parcel arrived by post in Australia. It was intercepted by the Federal Police and contained ecstacy tablets concealed in a green candle along with some children' toys and a card. This package was also disguised as a child's present, postmarked North London and did not bear the sender's name or address. The parcel was addressed to "D. Russell 1/5 Elizabeth Bay Cres, Elizabeth Bay, Sydney 2011 Australia". This was the residence of Anna McGinley, a close friend of the appellant. Dense Russell had not lived at that address since 1992 when Ms McGinley succeeded her as the tenant.
7 The Federal Police caused most of the ecstacy tablets to be removed and similar looking but non-narcotic ones to be substituted for the tablets removed. The parcel was reconstructed so that it bore the same or similar appearance as the parcel did prior to interception. It was made to look as if it had not been opened. This is called a controlled delivery. A monitoring and tampering alert device was inserted into the package. This emits a signal every 2 seconds. If the loop of the device was tampered with and not intact the signal is emitted more frequently. That lets the Police know that the parcel has been opened. Movements of the parcel could also be tracked.
8 Shortly after 11 am on 4 July 1996 Federal Agent E.V. Stipnieks dressed in an Australian Post jumper and posing as an employee, took the reconstructed parcel to 5 Elizabeth Bay Crescent, rang the intercom and Ms McGinley answered. Stipnieks said "I have got a package for D. Russell" and Ms McGinley replied "OK". She added that he said that he did not want to leave it outside. She admitted him to the building. Instead of leaving the parcel in the vestibule he walked down some flights of stairs to Ms McGinley's apartment and handed it to her. Ms McGinley knew Ms Russell and that she had lived in the unit.
9 About lunch time Ms McGinley went around to the appellant's home and talked to him about his work. She had been involved with him in making a promotional video about an intended project. She also said to him:
"A parcel arrived today for someone who lived at the apartment some years previously which is quite unusual and I'd been woken up by the Post". He asked if she knew what the parcel was and she replied "No". She continued: "I explained that it had a Customs declaration on it which said children's toys and Mark said 'What are you going to do with it', and I said 'I don't know' and he said 'I'll have a look at it some time'."
10 They had a chuckle because some years previously a parcel had arrived at her flat addressed to some previous tenant. When she opened it, there was a catalogue for marital aids.
11 During this conversation he asked if she was going to open the parcel. She replied that she did not know. She said he told her to bring it round. This was not said with any sense of urgency. She added the words "some time", to convey the sense in which the words were used. She had left the parcel at her flat.
12 Ms McGinley said that the appellant asked her if she could bring around a copy of his promotional video (of a project on which they had both worked). The appellant had run out of copies of the video and might need one. She returned to her apartment and stayed there for a while. She got her copy of the video to take it to the appellant and as she was leaving saw the parcel near the door and decided to take it with her. The video was in her handbag. She placed the parcel in the boot of her car. She returned parking her car outside his house. She went inside his house leaving the parcel in the boot. They talked for about 5 minutes. She was in a hurry. As she was leaving she said: "By the way I have got the parcel if you still want to have a look at it". They both walked to the car. She opened the boot and gave the parcel to the appellant. It was about 4.,20 pm.
13 The appellant took the parcel into his house and attended to some other duties. While waiting for a printer to produce a draft colour print he recalled the parcel and decided to open it. He thought that it was strange that the parcel, which was from overseas was delivered to Ms McGinley's door and that she did not have to sign for it. He was curious about that and opened it. He lifted out the toys and ultimately put them on the mantelpiece. He saw the device. He described his reaction as one of shock and fear and as being very worried about the ridiculous situation into which he had got himself. He did not telephone the police because he had opened a parcel which did not have his name on it and which did not appear to be of any consequence but was strange. He thought it would be better to throw it out at the next opportunity. A Mr Burrows called and collected the material which the appellant had prepared for him.
14 The appellant inspected the draft print, found it satisfactory and decided to print off a high resolution print. The appellant noted that this would take 15-20 minutes. He decided to go to Manning Road, Double Bay and do some check measurements for a proposed carport there. He took his brief case, tape measure and notepad and the contents of the parcel (except the toys) for disposal. The contents and the wrappings were placed in a plastic bag (a bin liner). During the trip the contents spilled on to the floor of the car. For the first time he noticed the candle. He stopped the car outside the garage at the junction of Manning Road and Cooper Street, Double Bay. He placed the parcel and the contents in the bin outside the garage. He returned to his car, went to 70 Manning Road and took the measurements needed and returned home.
15 The print had been completed. After another short and fruitless trip he again returned home. He collected the toys from the mantelpiece. He noticed a device in one of them and concluded that it would be silly to hang on to the toys. He threw them in a bin in Glenmore Road, Paddington near the underpass. He continued to Ms McGinley's apartment, parking his car in Elizabeth Bay near her apartment block. Within a short period he was arrested.
16 At the trial the Crown accepted that the importation was complete when the appellant took delivery of the parcel at his home. The Crown did not accept the evidence of the appellant as to why he wanted to see the parcel and why he opened it. Nor did the jury.
17 The appellant's brother, Mr Jamie Pulham, who was based in England, was present in Australia at the time when the first and second parcels arrived in Australia and indeed until about September 1996. Mr Jamie Pulham was a user of ecstacy and attended rave parties at which the drug was consumed. Ecstacy tablets were a lot cheaper in London than in Australia.
18 Mr Jamie Pulham knew Ms McGinley and indeed stayed with her for about two weeks before he transferred to the home of the appellant and his de facto wife. Mr Jamie Pulham was in a position to ascertain the names of D Hurford and D Russell from mail which had arrived for them at the home of the appellant and that of Ms McGinley respectively. Both parcels emanated by mailing from the northern part of London. Mr Jamie Pulham had a real interest and motive in becoming involved in such an importation. The appellant had no such interest or motive and the evidence suggested that he was most unlikely to be involved in such an offence. The trial judge succinctly put the position:
"The overwhelming effect of the evidence in the trial was that Jamie Pulham was very likely to have been involved in trying to import relatively small quantities of ecstacy into Australia but that his brother (the appellant) was very unlikely to have been so involved."
19 There was no doubt that there had been an importation into Australia of narcotic goods. The issue was whether the appellant was knowingly concerned in that importation. The Crown did not contest that Jamie Pulham may well have been involved in the importation. It relied on the self-evident proposition that more than one person may be knowingly involved in an importation. The Crown case was that "all the jury had to be satisfied of was the appellant was a person, as distinct from the person knowingly concerned in the importation of narcotic goods".
20 The judge summarised the Crown case thus:

(a) the similarity between the two parcels would assist in concluding that the second parcel, like the first, was intended to go to the appellant's address. It did not suggest that the ultimate recipient of the first parcel was intended to be the appellant.
(b) the drugs were sent in a parcel addressed to a former tenant at premises other than those in which the appellant lived so as to provide a more secure route by which the drugs could come to the appellant (the first parcel addressed to D Hurford, 62 Windsor Street, Paddington had never arrived). The use of the name of an earlier tenant provided some apparent protection for the present tenant).
(c) the process of importation was still ongoing when the appellant actually came into possession of the parcel, so that he did something by way of involvement in the venture centred on the importation
(d) the posting of the parcel, its delivery to Ms McGinley and her handing it over to the appellant merely represented steps which were part of a process of importation which did not conclude until the parcel came into the appellant's hands.
(e) the appellant was knowingly concerned in the importation of these narcotic goods because he intended that the second parcel would come to him and knew, even before it was delivered to Ms McGinley, that it contained narcotic drugs. With that state of mind or intention or knowledge, he received the package from her as part of his intention to be knowingly concerned in the importation.

21 To prove that the appellant was knowingly concerned the Crown relied on the first parcel being addressed to 62 Windsor Street, Paddington and, more particularly, the second parcel ending up at 62 Windsor Street within 6 hours of its delivery to the appellant's friend at Elizabeth Bay, the similarities of the parcels and the appellant's request to bring the parcel round when told about it, there being no element of urgency in the request. The Crown also relied on the appellant inspecting the parcel and his seemingly rejected explanation that he was simply curious. The rejection of his explanation does not prove the positive fact of being knowingly concerned in the importation.
22 As the judge pointed out:
"There is no evidence that (the appellant) was involved in arranging for the drugs to be sent to Australia, there is no evidence that he was aware that they were being sent at the time they were sent from Britain and there is no evidence that he was the intended recipient in the sense that he was intended to be the ultimate recipient of the drugs. Nor is there any evidence to establish that the accused knew that the parcel contained narcotic goods before the day on which it arrived at Ms McGinley's flat"
23 In my opinion there is no evidence that the appellant knew, prior to Ms McGinley telling him of the arrival of the parcel, that it contained narcotic goods. Nor is there any evidence that she or anyone else told him at any stage or that he otherwise knew. The Crown did no more than establish suspicious circumstances. Its case did not cross the line between high suspicion and proof.
24 Even if this view is incorrect and even if it should be held that there is some evidence from which it could possibly be inferred, albeit ever so slightly, that the appellant was knowingly concerned in the importation there is no substantial foundation for such a view. It is certainly not the only rational inference to be drawn from the materials.
25 I agree with this view of the judge:
"Indeed, to the extent that it is possible to detect any particular purpose for the importation of this particular parcel, it could only rationally be concluded that it was intended ultimately to come into the hands of Mr Jamie Pulham, no doubt with a view to the contents being used by himself, perhaps supplied free of charge to friends, and it may be that some of them may have been sold by him to other people who attended the rave parties".
26 As at July 1996 the appellant was a relatively young, well qualified and hard-working professional man trying to establish himself in his own practice. He was engaged in promoting at least one prominent project which would help to establish his standing and reputation. He had no previous interest or involvement in narcotic goods. While modestly placed financially, he had no pressing need for money. His de facto wife worked and shared the household expenses. On the other hand, Jamie Pulham attended rave parties and took ecstacy. It is probable that he had contacts in the United Kingdom through which he could procure the dispatch by mail of ecstacy tablets.
27 The evidence in support of the Crown case on the issue of the appellant being knowingly concerned was insubstantial. At best, it was "wafer thin". On any view it was insufficient to establish guilt beyond reasonable doubt. The totality of the evidence pointed to the appellant not being involved in any aspect of the importation and the likelihood of his brother being involved.
28 The jury should have entertained a reasonable doubt. The members of this Court did so. There is at least a significant possibility that an innocent man has been convicted. There has been a miscarriage of justice. I acknowledge the assistance which I have received from the careful remarks of the judge in his summing-up and remarks on sentence.
29 The orders made on 2 July 1999 entail the consequence that a verdict of acquittal be entered. This should be added expressly and entered in the records of the Court and the District Court.

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