Swansson v The Queen

[2011] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Swansson v R [2011] NSWCCA 29
Hearing dates:	13 August 2010
Decision date:	16 February 2011
Before:	McClellan CJ at CL at 1 RS Hulme J at 2 Davies J at 77
Decision:	Appeal against conviction dismissed.
Catchwords:	Aid, abet counsel or procure the commission of an offence - attempted importation of not less than the commercial quantity applicable to ecstasy - appellant's knowledge - Crown case circumstantial - whether the verdict is unreasonable - whether Crown's closing address prejudicial -whether adequate correction - whether jury should have been discharged.
Legislation Cited:	Customs Act 1901 (Cth), s 233B(1)(b) Criminal Code Act 1995 (Cth), s 11.1(1)
Cases Cited:	R v R (1997) 99 A Crim R 327 Anderson (1991) 53 A Crim R 421 R v Hall (1960) 77 WN (NSW) 605 Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 Crofts v The Queen (1996) 186 CLR 427 R v El-Hayek (2004) NSWCCA 25 Swansson v R (2008) NSWCCA 56 Swansson v R (2007) NSWCCA 67
Category:	Principal judgment
Parties:	David Anthony Swansson Regina
Representation:	Counsel: Mr W Roser SC (Crown) Mr J Stratton SC with Mr P Hogan (Appellant) Solicitors: Solicitor Commonwealth DPP (Crown) The Law Practice (Appellant)
File Number(s):	2004/14999
Decision under appeal	Date of Decision: 2009-05-13 00:00:00 Before: Zahra DCJ File Number(s): 2004/11/1410

Judgment

1. McCLELLAN CJ at CL: I agree with RS Hulme J.

1. RS HULME J : On 13 May 2009 the above named Appellant was convicted of an offence which, in summary, was that between about 28 September and 17 December 2003 he did aid, abet, counsel or procure the commission of an offence by Anthony King and Mohamad Mr Alchikh against s11.1(1) of the Criminal Code Act 1995 and s233B(1)(b) of the Customs Act 1901 namely that Messrs King and Mr Alchikh attempted to import into Australia prohibited imports namely not less than the commercial quantity applicable to 3,4-methylenedioxymethamphetamine.

1. On 20 July 2009 Zahra DCJ sentenced the Appellant to imprisonment for 9 years including a non-parole period of 5 years and 5 months.

1. The Appellant had previously been convicted on that charge but his conviction was set aside by this Court - see Swansson v R [2007] NSWCCA 67; Swansson v R [2008] NSWCCA 56.

1. The grounds of appeal are:-

1. There is a substantial risk that the trial proceedings miscarried by reason of the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury. These submissions had no factual basis and were contrary to the evidence.

2. There is a substantial risk that the trial miscarried by reason of the unfair attempt by the Crown Prosecutor in his closing address to persuade the jury to draw inferences of fact, and accept argumentative suggestions that were not properly open on the evidence that were contrary to the evidence.

3. The learned trial judge erred in failing to discharge the jury following the closing address of the Crown Prosecutor.

4. After refusing the application to discharge, the learned trial judge erred in that he failed to give appropriate and immediate directions to the jury to cure the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury.

5. The verdict is unreasonable and cannot be supported having regard to the evidence, there being a deficiency of evidence as to the guilty mind. On the evidence available, it was not open to the jury to find beyond reasonable doubt that the Appellant knew or was aware, or believed, that the consignment of 54 refrigerators contained, or was likely to contain... ecstasy tablets or other narcotic drugs. The totality of the evidence was not capable of excluding a reasonable hypothesis of innocence.

1. To appreciate the significance of the matters, the subject of complaint in grounds 1 and 2, and also to deal with ground 5, it is necessary to record at some length the history of the trial and the details of the Crown case and the evidence.

1. The trial before Zahra DCJ extended from 6 April to 13 May 2009. The Crown case concluded at transcript page 815. The Appellant's evidence commenced on 29 April 2009 at page 818 and concluded on 6 May 2009 at page 1145. Albeit there were some interruptions, the Crown address commenced on 6 May, extended to well after lunch on 7 May and occupied some 60 pages of transcript. The address from counsel for the Appellant then commenced, continued to lunchtime on Friday 8 May, resumed on Monday 11 May and continued for a short time. In all it occupied approximately 44 pages of transcript. His Honour's summing-up occupied the balance of 11 May, some part of 12 May and the jury retired at 11.41am that day.

1. As fought, the case revolved around one crucial issue, viz. whether the Appellant knew or believed that 54 refrigerators the importation of which he assisted contained a prohibited narcotic drug or that there was a significant or real chance that they did. There was no direct evidence that the Appellant had such knowledge or belief and the Crown case was entirely circumstantial. The Crown sought to have the jury infer such knowledge or belief from a variety of circumstances, particularly some of the actions of the Appellant.

1. It was not in issue that:-

On or about 17 December 2003, 54 mini-bar refrigerators were imported into Australia.

There had been 2 previous importations each of 2 refrigerators which the Crown contended were "dummy runs" for the purposes of establishing an import history and determining whether interest on the part of the Customs or other authorities would be excited.

Inside the doors of 6 of the consignment of 54 refrigerators were concealed approximately 31.95 kilograms of 3,4-methylenedioxymethamphetamine (hereinafter referred to as "ecstasy").

This ecstasy was detected by Customs authorities and confiscated and other material substituted. (Because of the time of the confiscation, the ecstasy was regarded as not actually imported but only the subject of an attempt in that regard.)

The Appellant was involved in the importation of, or dealing with, the refrigerators by:-

(i) On about and after 25 November 2003, making arrangements with Roberts Shipping for that organisation to handle the clearance, storage and transport of a container holding the 54 refrigerators and thereafter having a number of conversations and other dealings with, including paying, that organisation in respect of the importation of the 54 refrigerators.

(ii) Renting storage space at Ray's Self Storage, Dandenong for one month from 28 November 2003.

(iii) On or about 10 December 2003, renting a warehouse at 3/37 Daphne St Botany from a Mrs Tan in the name Alpha Star Australia and having a number of conversations and dealings with her in that connection.

(iv) Arranging for the transport of the refrigerators from Ray's Self Storage to the warehouse at 3/37 Daphne St, Botany and when they arrived paying the driver $2,200 in cash; and

(v) Physically taking the 54 refrigerators into the warehouse at Botany when they were unloaded.

1. In connection with the events just referred to the Appellant:-

(i) Adopted and used the false names of Steve Millen and Dale Rodriguez.

(ii) When asked by the owner of the Botany warehouse for a driver's licence as identification, falsely stated he did not drive.

(iii) Created a letterhead and business card in the name of Alpha Star Australia containing false information.

(iv) Purchased a mobile phone in the name of Dale Rodriguez and used either this phone or a public phone for phone contacts in relation to the 54 fridge consignment.

(v) Although living at Cronulla, regularly used the faxing facilities, including that organisation's fax number, of an internet caf at 144 Haldon St Lakemba.

(vi) Made payments incidental to his activities, e.g. to Roberts Shipping, Rays Storage and Mrs Tan by cash or untraceable money orders.

(vii) During the period 28 September to 17 December 2003 had numerous phone conversations with Mr Alchikh.

1. A feature of most of the phone calls between the Appellant and Mr Alchikh is that most were to arrange meetings, not uncommonly at places at least to some degree inconvenient to one or other of them, and no significant topics, even the word "refrigerators", were mentioned during the calls except possibly by pseudonyms. Three examples of this are provided by calls of 28 September, 12 December and 17 December 2003. The transcript of the first of these conversations includes:-

Appellant: ... that's good good listen ah I was driving round the Gold Coast and you know that ah that photograph you gave me the other day.

Mr Alchikh: Yeah.

Appellant: What we were talking about.

Mr Alchikh: Yeah.

Appellant: Yeah there's one identical up here.

Mr Alchikh: Really identical.

Appellant: Yeah made by a different company I just went and had a real close look at it identical.

1. In evidence the Appellant maintained that they were discussing a crane, the importation of which was being considered. Although the conversation went on for somewhat further than the passage quoted, there was no indication to any outside listener that a crane was being discussed.

1. The second occurred shortly after the Appellant was informed by the person transporting the refrigerators from Victoria that the earliest he could arrive in Sydney was Wednesday morning. The transcript of the conversation between the Appellant and Mr Alchikh, which the Appellant said was to apprise Mr Alchikh of the expected time of arrival of the refrigerators, reads:-

Mr Alchikh: Yes hello.

Appellant: Yeah it's me mate. How ya going?

Mr Alchikh: Pretty good thanks yep yep.

Appellant: That's good the earliest our friends can meet us for Christmas is Wednesday morning am early.

Mr Alchikh: Alright that's OK good alright.

Appellant: Yeah yeah yeah.

Mr Alchikh: Alright, alright then.

Appellant: OK.

Mr Alchikh: Alright we'll see them then.

Appellant: OK mate.

Mr Alchikh: OK then bye.

Appellant: Bye.

1. The Appellant explained the expression, "our friends" as referring to the transport driver and his truck, and said that that is how he talks.

1. The transcript of the call of 17 December, which the Appellant said was to inform Mr Alchikh of the unloading of the refrigerators, reads:-

Mr Alchikh: Hello.

Appellant: Yeah mate it's me how are ya.

Mr Alchikh: Good thanks.

Appellant: Yep it's all done.

Mr Alchikh: Alright see you.

Appellant: I'll see you this arvo.

Mr Alchikh: ...

1. The Appellant, who agreed he was aged 50 and had been a businessman for a number of years, gave evidence that during 2002-2003 he was a commodities trader, a matter about which there was a deal of supporting evidence. He said that in that business he had had some dealings with a Mr Alchikh and later Mr Moafak Salhani. Some months prior to the events which became the subject of the charge presently under consideration, the Appellant was the subject of a Customs investigation. His premises had been searched and according to the Appellant, thereafter items he was importing were taking longer than normal to be released by the importing bodies or Customs.

1. According to the Appellant, some time in 2003 at the request of Mr Alchikh he did some investigation about the prospects of importing a crane into Australia, being paid some $500 for this task. There were other dealings, Mr Alchikh complimented the Appellant on how he conducted business, and on 3 November 2003, Mr Alchikh advised the Appellant to the effect that he 'had a new client in the UK that can supply white goods on an on-going basis", that, "We can get plasma TVs from them as well" and "I have a container of a hundred large refrigerators on their way". Mr Alchikh expressed a desire that the Appellant look after the paperwork associated with importing the units and also sell them, the remuneration offered being to share equally with the Appellant the 50% of the sale price Mr Alchikh had arranged with the supplier that he would receive. The Appellant agreed to participate, saying inter alia that he would do so in his company name.

1. The Appellant said that Mr Alchikh responded to the latter suggestion to the effect:-

You can't do that. You know you are under Customs investigation. You also know they have been holding up your consignments on the wharf. As this is a new client, I want everything to go very smoothly. I would appreciate if you could use Steve Millen when you ring up to speak to the customs agents and the like.

Look, I have done a deal with the supplier. There are a few things not just right with the refrigerators. They are A grade classed as B grade. The B grade price will be on the invoice which will save on duty. They may be leased and not paid for. They are just running a little bit of a scam with them. It's not really your problem.

1. The Appellant also gave evidence concerning his use of the name Dale Rodriguez. He said he came up with that name himself and on two occasions said that there was no real reason for doing so. He did however accept that it was to maintain distance between his real identity and the importation.

1. In cross-examination the Appellant acknowledged that he had been involved with something dodgy and in his dealings, for example with the owner of the Botany warehouse, had sought to distance himself from anything to do with the importation. He said however that he did not know the importation had anything to do with drugs and that drugs were the last thing that would have entered his mind.

1. The passages in the Crown's address to the jury which are the subject of complaint in grounds 1 and 2 and some further connected passages are as follows. (I have numbered the paragraphs for ease of later reference and included emphasis added by counsel).

(i) All of those matters are circumstances in which the call on 12 December between Mr Alchikh and Salhani to be borne in mind. The call which you probably all know off by heart now is the one where Mr Alchikh speaks to Salhani and says things about Mr - whom Mr Millan believes is Swansson. In relation to that particular call, can I ask you to also bear in mind the fact that Mr Alchikh has not given evidence before you, he has not come along to be asked questions about what he actually meant in that particular call . What he has said is just something that he has said, it is there. What he said is one thing, what it means is another and whether what he said was true is another thing. They are matters to be taken into account, as well as all these other circumstances I've just referred you to - 7/5/09 P9.

...

(ii) The call (of 11 December 2003 between Mr Salhani and the Appellant) is also significant because what tells you is that in effect Mr Swansson agrees with Salhani that he's done nothing wrong in relation to the tobacco importation. What you know of that is that Mr Swansson ostensibly imported a container full of plates, chinaware, and lo and behold there's tobacco in there as well. And I mention it now because that's where it's made as clear as anything that Swansson says you know I didn't do anything wrong - or Salhani says that and Swansson agrees. But do you remember the evidence that Mr Swansson gave towards the end of his evidence about drugs are the furthest thing from my mind, I wouldn't have thought that drugs could be in there. What a strange thing to say when he himself is saying in these phone calls that I was a victim of something hidden in my container, I was importing stuff and lo and behold these other things which weren't supposed to come in were in there . You might think that that sort of event would make him very wary about importing things and making sure, absolutely sure, that they didn't contain any contraband - 7/5/09 P10.

...

(iii) And then over the page Mr Alchikh says this, "But I'll tell you something so you know. I've done a few things with him in this matter". Now "in this matter" is that a reference to this particular importation? It may be because Salhani seems to know what Swansson was doing. He says "I've done a few things with him in this matter but he is just not there, completely unaware of anything". I think that's the reference to the deaf man at the concert - 7/5/09 P11-12.

(iv) You have to be careful. You understand what I mean." Now does "this matter" actually mean this particular importation? Does "this matter" mean the Duracell, Kodak and battery orders and Kraft cheese orders? It is not clear. And that's made even more likely when you remember that the telephone incoming calls interrupts Mr Alchikh and he has to come back and then when he comes back he says this, "I man I talked to me. He talks to me as if he was an employee of that. I mean like Australian. Like the-". Not again, understandable if Mr Swansson is indeed checking Mr Alchikh as he does in relation to the various steps he has to undertake.

(v) And then there's a pause and Mr Alchikh says, "So he is totally unaware of our thing?" Now what does "our thing" mean? Is that separate to Salhani and Mr Alchikh? Is "our thing" the importation? It's not clear. If "our thing" and it's a matter for you to determine, but if "our thing" is something other than the importation when his statement that he is like the deaf man at the opera has nothing to do with Mr Swansson and this importation. It's irrelevant to that conclusion. If it is something to do with this importation then there are a number of other matters to consider.

(vi) Is Mr Alchikh lying to Salhani about Swansson's knowledge because Mr Alchikh is not supposed to tell anyone else what he's doing. He's acting for King, he's the recipient, he's to receive the goods and then the extraction crew come in and take them away. Is he being careful because he has engaged Swansson contrary to what he was supposed to do.

(vii) Is Mr Alchikh lying because Swansson doesn't want Salhani to know that he's involved. And there are other arguments, for example is Mr Alchikh merely saying that Swansson does not know that Salhani's involved in our thing. I mean what is "our thing". "Our thing" could be a number of things as the conversations between them over the months show, they are engaged in other things. There's the Tarek reference and money going there and you owe for this and I owe for that and you know that Mr Alchikh is laundering the money obtained from Western Australia. How does he do that, through Salhani or in conjunction with Salhani. Does he do it by buying and selling products with the ill-gotten gains from the drug sales. Does he buy Kodak, Gillette, batteries with the ill-gotten gains, then those things go to London, like the Colgate - remember the Colgate - didn't even some to Australia. It went from South Africa to London. You buy it with the proceeds of crime, the drug sales and then sell it in London, you've laundered it, you've washed it. Where did you get this money from? Sold these products. Thanks very much. What is "our thing". We don't know. Mr Alchikh is not here, we can't test him, we can't enquire of him what he means by those things.

(viii) There is other talk of money laundering as well, pp 366 and 394 there's talk between King and Henry about money laundering and they talk about the depositing of money into our thing and sending it overseas. Is that involving Mr Alchikh, is that involving Mr Alchikh, is that involving Salhani. It really is so uncertain - 7/5/09 P12-13.

(ix) Is "our thing" a reference to Chris Senin. Mr Swansson told you that he believed that Mr Alchikh and Salhani were doing deals with Chris Senis behind his back. Is that our thing that Mr Alchikh is talking about. Mr Swansson says no, that's not the call I had in mind. He had some other calls in mind and I think Mr Hogan read portions of transcript onto the record in re-examination, but it's a matter for you, but they're no clearer as to what was the deception of Mr Swansson as is this particular call.

(x) The words spoken by Mr Alchikh in this particular call are just one more piece of evidence. It occupies half a page in over 400 pages of words that you have before you in relation to telephone calls. It is not to be looked at on its own. It's just one piece of evidence and you are to look at all of the evidence together and when you do look at all of the evidence together, any significance that maybe suggested that this particular call has, falls away, especially when you consider these matters that I am putting to you about what it really means.

(xi) At the end of the review of the material, if at the end of the day you conclude that this topic or this discussion is about something else other than the importation, it is of no value to you in determining whether or not Mr Swansson is guilty or not.

(xii) If you conclude that it is about this importation and Mr Alchikh is saying that Swansson did not know about the drugs, you must carefully consider that statement against all of the other evidence in this case. All of the other evidence which points, in my submission, to the conclusion that David Swansson does know about drugs. And in undertaking that, you must remember whether or not you can be satisfied that Mr Alchikh is telling the truth. If it is about this importation and it's a statement about whether or not Swansson knows, is Mr Alchikh being truthful when he makes that statement to Salhani. I say it is impossible for you to determine that and it is impossible to conclude on the basis of it, that Mr Swasson did not know about the drugs - 7/5/09 P13.

1. Almost immediately after the last of these remarks his Honour took the morning adjournment. In the absence of the jury Mr Hogan, counsel who appeared for the Appellant at the trial took exception to remarks in the passages I have numbered (vii). The limited nature of his objection is significant. The transcript records:-

Hogan: ... where Mr Crown was referring to the importation of Colgate from South Africa to London and the evidence from Mr Swansson was that he was involved in that matter and that Mr Alchikh was involved in that matter and there's never been any suggestion before - it wasn't put to Mr Swansson, there's no evidence of it, that Mr Swansson was involved in money laundering or anything like that, yet Mr Crown put it that that very transaction, the jury might like to speculate that that was money laundering. I think he might have been referring to Mr Alchikh but the link is and the jury have the evidence and it's very serious your Honour that that was even suggested to the jury - that that venture which is one that Mr Swansson said it happened, I was involved in it in 2002 and a commercial enterprise. That's now been put before the jury as criminal activity, money laundering.

His Honour: Mr Crown?

Crown: I'd forgotten or overlooked that Swanson said he had some involvement in it, but I'll clear that up to make it plain that I'm not suggesting he was involved in money laundering - 7/5/09 P16.

His Honour: Yes.

Hogan: I'm grateful to the Crown. The other matter is that ...

1. Mr Hogan then made another complaint in respect of remarks in the passage I have numbered (ii) observing that there was no evidence of it and "it's another example of ramping up the incriminating material against Mr Swanson where there was no evidence and very unfortunate". There was an exchange of remarks during which there was agreement that the transcript would be reviewed and Mr Hogan said, "but I wouldn't make an application on Mr Crown if he's mistaken. No doubt he'll fix it as he said he would in relation to the Colgate - 7/5/09 P17.

1. When the jury returned the Crown Prosecutor remarked (again I have underlined passages emphasised by counsel):-

(xiii) Ladies and gentlemen, can I just clarify one thing I said to you? It was in relation to what Mr Alchikh and Salhani's thing was, and I mentioned the deal where Colgate was sent from South Africa, I think it was, to England, and I said that that possibly may have been a way in which money was laundered. Mr Swansson apparently had something to do with that deal, he knew about it and may have even put Mr Alchikh on to the seller of the toothpaste. Can I make it perfectly clear that I am not, and I did not mean to insinuate in any way that Mr Swansson was engaged in money laundering activities with Mr Alchikh. To the contrary, it appears that Mr Alchikh keeps those things separate and I do not in any way assert that Mr Swansson was involved in money laundering , but you will - or you may not, but - recall the evidence of Ms Saxby where she gave evidence as follows in relation to money obtained from the sale of ecstasy 7/5/09 P23.

Q. Did you have any understanding Mr Alchikh as to how it was he sent the money to King?

A. I do remember something about toothpaste, something, but I don't know if that is irrelevant or if that was just - I don't know what that was about so I didn't really know.

Q. Which toothpaste company?

A. I don't know, I just remember them saying something about toothpaste. It could have been - just been in passing conversation. I'm not sure of that. I don't know how it got back there.

(xiv) And she was asked if there were other types of companies mentioned in relation to the transfer of moneys back to King, and she said "I can't remember".

(xv) So, as I say, Mr Alchikh is a very important player in all of this, and he is clearly engaged, in my submission to you, in the transfer of money back to King in England, and I make it plain to you that it is not part of the Crown case that Mr Swansson was engaged in that activity 7/5/09 P23.

1. In the absence of the jury just before and after lunch there was further discussion between counsel and his Honour during which his Honour suggested that both Counsel listen to the exhibit disc to ascertain precisely what had been said. The transcript indicates that this occurred and the Crown acknowledged he should not have used the word "hidden". Almost immediately after the return of the jury the Crown Prosecutor said, in relation to the paragraph I have numbered (ii) the following:-

(xvi) I'll come back to that in a moment, but before I do, I need to correct something that I said to you I think prior to the morning tea adjournment. It was to do with the problems Mr Swansson had encountered in relation to cigarettes. Now I said that the matter involved a container. There's no evidence before you that there was a container. I also said to you that the cigarettes were hidden in the container. Again there's no evidence about that. There is before you exhibit s14 which is an exhibit produced or tendered by Mr Hogan through Federal Agent Millan and on page 8 of that document there is a discussion between Mr Alchikh and Salhani about Mr Swansson's problems in relation to cigarettes and Customs and in the middle of that page Mr Alchikh says - 7/5/09 p33.

The offer came from his computer and in his offer there are plates and there are cigarettes in the same offer, you know what I mean? So now there-"meaning Customs" - have made a link between this and this.

(xvii) That's the evidence that you have in relation to that importation and I withdraw unequivocally any suggestion that the cigarettes were hidden in the container .

(xviii) Now I complicated or made things worse by going from there and contrasting the evidence that Mr Swansson gave about drugs in the refrigerators being "the furthest things from my mind". I withdraw that submission from you in the sense that it was linked to this tobacco importation and I don't forego what he said in relation to it being the furthest thing from my mind. I'll come back to it and deal with it in another way - 7/5/09 P33.

1. Thereafter the Crown address continued, concluding some little time before the end of the day's proceedings. Mr Hogan then addressed for some time.

1. At the commencement of proceedings on the following day, Friday, 8 May, Mr Hogan made an application for the discharge of the jury based on the Crown Prosecutor's remarks. Mr Hogan's application was based in part on what the Crown Prosecutor had said on the topics of cigarettes, money laundering and Colgate and in part on the basis of the reference to Ms Saxby and toothpaste in the paragraph I have numbered (xiii). This latter matter is not relied on in this Court and in any event I am satisfied it adds nothing to the strength of the complaint that is made.

1. His Honour refused the application saying that although the Crown's suggestions of money laundering and hidden cigarettes concerned him and created prejudice, the Crown's retractions went a long way to minimise the prejudice caused, that his Honour proposed to give directions and he was of the view that a fair trial could be ensured. Mr Hogan then continued his address to the jury until, or until close to, lunchtime on Friday 8 May and then for a short time on the morning of Monday 11 May. During his address, Mr Hogan sought to gain advantage from the Crown's withdrawal of some of the submissions the Crown had made to the jury mentioning 3 times the fact of retraction and referring twice to the fact that the trial judge would be giving some directions about what the Crown had said.

1. At the conclusion of Mr Hogan's address his Honour commenced his summing-up which continued through that day and some part of the morning of 12 May. Early on the morning of 12 May, his Honour directed the jury's attention to the matters which had been the subject of Mr Hogan's complaint. What his Honour said was:-

(a) Now before I go to the addresses, members of the jury you would recall that on one occasion during the Crown's closing address the Crown Prosecutor made submission to you regarding matters where he subsequently retracted his submissions and indicated that there was no factual basis for the submission. He conceded at times that there was no evidence for the submission to have been made. In relation to those submissions I am going to give you certain directions of law. The first direction, as the Crown conceded, that there was simply no factual basis for the submissions made by the Crown which he retracted and I will take you to the areas. It would be wrong for you to put any weight whatsoever on those submissions which the Crown retracted and you must exercise extreme caution to ensure that you do not act upon the submissions in any way. 12/5/09 P97.

(b) The first of those areas was a suggestion made in the Crown prosecutor's closing address that the Colgate toothpaste importation from South Africa to the United Kingdom in 2002 possibly was an example of money laundering by the syndicate involving King, Saxby and Mr Alchikh where there was washing of the money. The accused had given unchallenged evidence of being involved in this importation with Mr Alchikh and it was accepted by the Crown that the accused's involvement was completely legitimate. Subsequent to making this submission the Crown retracted the submission concerning the money laundering and conceded that there was no evidence of the accused's involvement in any way in money laundering. There was consequently no basis for the submission to be made and I would remind you that you must act only upon the evidence.

(c) The second area that I wish to take you to, there was also a suggestion made by the Crown prosecutor in his closing address that the accused was involved in "hiding cigarettes in a container of plates and china in 2003 when he was investigated by Customs". I must also give you important warnings with regard to the submission and in relation to the evidence of the prior Customs investigation. The evidence is that there was an involvement by the Customs Service in relation to cigarettes that were imported in a container in which the accused was involved. It is not the case that the cigarettes were hidden in the container.

(d) Firstly therefore what the Crown said was to the evidence and you should be careful not to act on the incorrect submission that the cigarettes were hidden. It was simply not the case. Secondly you cannot use the fact that there was such an involvement by the Customs Services in relation to the accused's importation of cigarettes as establishing a tendency on the part of the accused to involve himself in bringing goods into Australia contrary to law. You cannot reason that because there was an involvement by the Customs Service in relation to a prior importation of cigarettes by the accused as establishing a tendency on the part of the accused to commit an offence of the type charged here. The evidence in relation to the container of cigarettes was that there was an involvement of the Customs Service. It is no higher than that. The cigarettes were not hidden.

(e) So you should exercise caution because it is impossible for the accused to adduce or introduce evidence exculpating himself in relation to the submissions made by the Crown Prosecutor that were retracted and consequently he had no opportunity of placing evidence before you or cross-examining witnesses in relation to it - 12/5/09 P98.

1. Although he had raised nothing when invited to do so just before the jury retired, on the morning of Wednesday, 13 May 2009 Mr Hogan renewed his application for a discharge of the jury. In the course of doing so he referred to what his Honour had said to try to cure the submissions that were made by the Prosecutor observing, "we were very pleased with the content and the manner of that direction" and "your Honour has done everything you can to assure a fair trial for Mr Swanson". However, Mr Hogan made the point that the jury had had 5 days where they were able to reflect on the prejudicial material in the Crown address before his Honour's attempted correction of it and submitted that the directions were too late to cure the prejudice.

1. His Honour refused the application saying that there were some practical difficulties in providing full reasons for his refusal as he had by then commenced another trial. His Honour however indicated that matters he had in mind were the playing of a tape during the luncheon adjournment, that the Crown had retracted his statement about cigarettes in the container and money laundering, his own directions in the course of his summing-up, and that during the trial he had directed the jury many times that they were to act only on the evidence.

Ground 1

There is a substantial risk that the trial proceedings miscarried by reason of the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury. These submissions had no factual basis and were contrary to the evidence.

1. The subject of the first part of this ground is the paragraph I have numbered (ii). Some appreciation of the evidence bearing on the topic of cigarettes is desirable. Both Federal Agent Millen and the Appellant gave evidence that in July 2003 the Appellant was under investigation by the Customs Service in relation to a "container" which had some cigarettes in it". Mr Millen also said that he believed some of the remarks in an intercepted conversation of 4 September 2003 between Mr Alchikh and Moafak Salhani was a reference to that investigation.

1. The transcript of that conversation was in evidence as exhibit s14. On it Mr Alchikh is recorded as saying:-

That donkey appears to have done something behind my back, but the name of my company is in their computer, and the name of the company has cigarette paper on it as well, that is cigarette work.

...

An offer yes OK, the offer came from his computer and in his offer there are plates and there are cigarettes, in the same offer, you know what I mean, so now they have made a link, between this and this so he was...

...

And up till now, they haven't laid a charge on this, this donkey, that means the case is dead anyway, it was dead at the beginning, because they were supposed to lay a charge and they didn't, because they don't have inclusive evidence, so at the end, the matter is dead.

1. There were grounds for thinking that "the donkey" may have been a reference to the Appellant and the computer reference to his computer. The Crown Prosecutor had sought to cross-examine the Appellant on various aspects of the transaction involving the container and cigarettes but the applications were refused. It may well be therefore that the Prosecutor was aware of more information than the evidence before the jury revealed.

1. There is no doubt that the Crown Prosector should not have made the remarks, the subject of this ground. However, as recorded in the paragraph I have numbered (xvi), there was a fulsome withdrawal of the remarks not long afterwards, a withdrawal of which the jury were reminded in defence counsel's submissions to them, and reinforced by directions of his Honour which I have quoted.

1. In light of these matters, particularly in the context of the whole case, I see no reasonable possibility that the jury might have been influenced by what they were told was an error and unsupported by the evidence, a matter of which they may well have been aware in any event.

1. The subject of the second part of this ground is the passage I have numbered (vii). In the written submissions advanced on behalf of the Appellant it was said that there was not evidence supporting the contention that Mr Alchikh and others were involved in money laundering and that the Crown's submission was unfairly prejudicial to the Appellant.

1. However, although the matter was not further developed, during the course of oral submissions counsel for the Appellant conceded that there was some evidence of money laundering by Mr Alchikh though nothing to suggest it was anything to do with toothpaste. In light of the fact that Mr Hogan's objection was limited to the Appellant's involvement in money laundering, the Appellant would need leave under rule 4 to raise the matter in this court. Given that it was common ground that Mr Alchikh had been involved in the drug importation with which it was suggested the Appellant was involved, the suggestion that Mr Alchikh had also been involved in money laundering was a relevantly insignificant part of the trial. In these circumstances I would not be disposed to grant such leave.

1. So far as the suggestion of the Appellant's involvement in money laundering activities, again there was a fulsome withdrawal by the Crown of the suggestion, a reminder of that withdrawal during defence counsel's address, and reinforcement of that withdrawal by his Honour's remarks. Again I see no reasonable possibility that the jury might have been influenced by any suggestion of laundering that was clearly withdrawn. Accordingly this second aspect of Ground 1 also fails.

1. In arriving at my conclusions I have not ignored an argument advanced on behalf of the Appellant that the delay, between the Crown Prosecutor's original remarks and his Honour's repudiation of them, of some 5 days was so long that the prejudice they caused was irremediable, or a decision of R v R (1997) 99 A Crim R 327 upon which counsel for the Appellant relied. However, one cannot simply look at the passage of the 5 days, for the most significant matter was the withdrawal of the remarks the subject of complaint by the author of them and this within a reasonably short time of them having been made.

Ground 2

There is a substantial risk that the trial miscarried by reason of the unfair attempt by the Crown Prosecutor in his closing address to persuade the jury to draw inferences of fact, and accept argumentative suggestions that were not properly open on the evidence that were contrary to the evidence.

1. The subject of this ground are the passages I have numbered (i) and (iii)-(x). Those remarks relate to a telephone call on 12 December 2003 between Mr Alchikh and Salhani, neither of whom were called.

1. It is unnecessary to recount the full terms of the telephone call. Apart from the odd word in English the conversation recorded was in Arabic and included the following ("S" indicates the speaker was Salhani and "A" that the speaker was Mr Alchikh).

A. If I try to find something before now...

S. But it is (Ind) all with your friend, I mean selling and buying, work, you understand, papers, invoices, correspondence, he is good at that.

A. Alright.

S. You understand?

A. But I'll tell you something so you know. I've done a few things with him in this matter but he is just not there, completely unaware of anything. You have to be careful. You understand what I mean.

1. There was then an interruption in the form of another phone call after which the conversation continued:-

Mr Alchikh: But I'll tell you something so you know. I've done a few things with him in this matter, but he is just not there, completely unaware of anything. You have to be careful you understand what I mean?

There was then an interruption and a little later the conversation continued:-

Mr Alchikh: I mean I talk to him, he talks to me as if he was an employee of that, I mean like Australians, like the ... so he is totally unaware of our thing.

Salhani: Alright then, no problems now. There is another job.

And later,

Salhani: This one has a profit in the vicinity of 100 sterling.

Mr Alchikh: A hundred is nice. What, in a period of 3 months?

Salhani: Yes.

Mr Alchikh: Alright. OK I will talk to you about it.

Salhani: Alright, alright mate.

Mr Alchikh: OK, bye bye.

Salhani: But don't tell him like that.

Mr Alchikh: No, no, I won't tell him anything. I won't tell him anything at all.

Salhani: OK? But ...

Mr Alchikh: I'll tell him we'll do a little bit of Gillette, a little bit of Kodak and things like that.

Salhani: Yes, no problem.

1. The interpreter who was responsible for the transcript of the above conversation was called and taken to the passage "he is just not there, completely unaware of anything". He agreed that while those words represented a communicative meaning of the Arabic used, the Arabic was a proverb that translated literally meant "he is like deaf person in a concert or a wedding".

1. Obviously, one possible interpretation of the conversation is that the Appellant was being referred to and Mr Alchikh was saying that the Appellant knew nothing of consequence so far as the drugs were concerned. The extracts from the Crown's address the subject of this ground show that the Crown was concerned to persuade the jury that such an interpretation was not one they should accept.

1. On behalf of the Appellant it was submitted that it was not open to the Crown to make the submission, the subject of objection in light of:-

(i) The fact that the Crown did not call Mr Alchikh (who was apparently present in the court precincts) on 28 April 2009 and whom, it was suggested, the Crown could have cross examined; and

(ii) Some evidence given by Federal Agent Millen.

1. So far as the first of these matters is concerned, the Crown had reached a conclusion that Mr Alchikh was an unreliable witness who would be called only if the Appellant required him. Counsel for the Appellant, after conferring with Mr Alchikh, did not.

1. In cross-examination by Counsel for the Appellant, Federal Agent Millen had disclosed that he was the officer in charge of the prosecution, that he had compiled a statement with Mr Alchikh and that there was a record of interview during which he had questioned Mr Alchikh at length. Mr Millen agreed also that he had prepared a Statement of Facts concerning the matter. He was taken to paragraph 130 of that Statement that related to the particular telephone call and his evidence continued:-

Q. And you state that Mr Alchikh also cautioned Salhani to be careful if he spoke to Swansson, because Mr Alchikh had not told Swansson that there were tablets in the shipment?

A. That's Mr Alchikh had (sic), that's what is in his statement.

Q. And that he wanted Salhani to make sure he didn't mention tablets to Swansson either?

A. Yes.

1. The topic was taken up again in re-examination where Mr Millen was asked and agreed that the information in paragraph 130 had two sources, viz. the telephone intercept itself and information from Mr Alchikh subsequent to his arrest.

1. In support of the ground, Counsel for the Appellant in this Court drew the Court's attention to remarks of Gleeson CJ in Anderson (1991) 53 A Crim R 421 at 438-9 where the Crown was held to have been unfair in submitting that a photograph was of a particular witness Pederick when the Crown, having called the witness, had not asked him whether he was or might have been the man depicted. It was submitted that, by parity of reasoning, it was unfair for the Crown to have made the submissions it did when the participant in the conversation could have been, but was not, asked who and what he had been referring to.

1. There are differences between the situation in Anderson and this case. Some are of no importance for present purposes and can be ignored. However, two which are of significance are firstly, that here the Crown had concluded the witness was so unreliable he would not be called unless required by the Defence and Defence did not want him and, secondly, in Anderson , as Gleeson CJ remarked, the Crown "not the defence, had access to Pederick and was able to confer with him". That was not the situation here.

1. Where criminal charges arise out of what seem to be multi-party offending, much of the evidence will often consist of what one of the suggested offenders said. Such persons are not notoriously truthful and trustworthy even vis--vis their partners in crime and it does not seem to me that principles of fairness require the Crown, if it wishes to suggest that something said is not accurate, to be obliged in all cases to call the author of the statement to question him or her on that issue, particularly if the defence does not seek that the person be called.

1. There was, of course, the evidence of Mr Millen. Quite why he was permitted to give the evidence is not apparent. However, the fact that that occurred did not prevent the Crown seeking to cast doubt on the source material upon which Mr Millen's evidence depended.

1. I would reject this ground of appeal.

Ground 3

The learned trial judge erred in failing to discharge the jury following the closing address of the Crown Prosecutor.

1. It follows from the conclusions already expressed that this ground fails. However, it is appropriate to add that the authorities make it clear that, given a trial judge's advantage in judging the atmosphere of a trial, this Court will be slow to overrule his or her exercise of discretion not to discharge a jury - see R v Hall (1960) 77 WN (NSW) 605 at p 607; Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 at p 215; Crofts v The Queen (1996) 186 CLR 427 at p 440-1; R v El-Hayek [2004] NSWCCA 25 at [62].

Ground 4

After refusing the application to discharge, the learned trial judge erred in that he failed to give appropriate and immediate directions to the jury to cure the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury.

1. Clearly directions could have been given at the time suggested. However, it is very much a matter of judgment as to the time when any such directions are needed. In light of the Crown's retraction of the offending remarks, it was certainly not obligatory for his Honour to do so immediately. Although not determinative, relevant in that connection also is that defence counsel did not ask for such directions at the time. It is to be inferred that in the overall context of the trial, he did not regard them as then necessary. This ground also fails.

Ground 5

The verdict is unreasonable and cannot be supported having regard to the evidence, there being a deficiency of evidence as to the guilty mind. On the evidence available, it was not open to the jury to find beyond reasonable doubt that the Appellant knew or was aware, or believed, that the consignment of 54 refrigerators contained, or was likely to contain... ecstasy tablets or other narcotic drugs. The totality of the evidence was not capable of excluding a reasonable hypothesis of innocence.

1. As has been indicated, the Appellant gave evidence that he had no such knowledge or belief. He explained his use of false names by saying that he was persuaded by Mr Alchikh to use "Steve Millen" and Mr Alchikh's explanation of the transaction. He asserted that apart from those matters, so far as he was concerned, the transaction was a simple commercial one in which, pursuant to an agreement with Mr Alchikh, he stood to receive one quarter of the price realised on the sale of the refrigerators. The Appellant denied that the expressions he used in intercepted conversations were in any sense a code.

1. Much reliance was also placed on the parts of the conversation between Mr Alchikh and Mr Salhani which occurred on 12 December 2003 and which I have quoted above when dealing with ground 2.

1. During the course of the Appellant's evidence there was further exploration of what had been said in the initial conversation between Mr Alchikh and himself and of events thereafter. It is not necessary that I detail all of those events, particularly those in which the Appellant misrepresented his identity or other details and sufficient if I refer to only the most salient. The Appellant said that in the original conversation all Mr Alchikh said by way of description of the refrigerators were that they were large. He himself made no inquiries in response to Mr Alchikh's statements which I have quoted about a scam although he was not comfortable with using a false name but was persuaded by Mr Alchikh's remarks as to the goods being held up in customs. He did tell Mr Alchikh that some storage would need to be arranged. The Appellant advised Mr Alchikh that if he was to sell the goods he would need a sample and Mr Alchikh said that he would arrange the sample.

1. On 5 November, the Appellant made contact with retailers as to the prices of large single door refrigerators and noted in his diary, "white goods" and figures of 1390 and 995, apparently dollars.

1. Some time during the next 9 days, the Appellant was informed by Mr Alchikh that the refrigerators were in fact small ones.

1. On 10 or 11 November, the lease of the Botany warehouse was signed and on 11 and 12 November, the Appellant paid Mrs Tan a total of $2,600. At that time the Appellant told Mrs Tan the location was good for him because it was close to the port. The Appellant himself said that he was expecting the refrigerators to be shipped to Sydney.

1. Two sample refrigerators arrived at the Botany warehouse on 14 November. The Appellant was there and paid $150 cash to a Mr Wood who delivered them.

1. The Appellant took one of the samples to a Mr Zackta of an appliance retailer with whom he had previously dealt, and said that he wanted $300 each for them. After discussion about the absence of any warranty, a price of $270 was agreed for as many as could be supplied. At the time of this conversation the Appellant still believed that 100 were about to arrive.

1. In late November the Appellant learnt that the refrigerators would in fact be arriving in Melbourne, not Sydney. On 25 November the Appellant wrote to Bayside Self Storage in Melbourne applying to rent a self-storage unit for one month from 28 November. Bayside apparently did not have a unit available and one was then obtained from Rays Storage. This was done on the instructions of Mr Alchikh who said that someone in Victoria might be interested in the refrigerators. The Appellant paid Rays Storage $250.

1. On 29 November the Appellant also discussed with an auctioneer friend at Mudgee whether the latter could sell the refrigerators at Mudgee. The friend, a Mr Bateman, said that he could, advised that not too many should be put in the one auction and, on that basis, estimated the selling price at around $250 - $300. Mr Bateman acknowledged that there would be cost involved in transporting the refrigerators to Mudgee.

1. On 1 December the Appellant on the letterhead of Alpha Star Australia forwarded the bill of lading, an invoice recording the cost of the 54 refrigerators as 4683 pounds (73.82 pounds each), and other documents to Roberts Shipping, advised that organisation that the container was ready for clearing and asked them to act on Alpha Star's behalf. This documentation was supplied by Mr Alchikh. In evidence in chief, the Appellant also said that he sighted documentation which he became aware that there were not 100, but 54 refrigerators. It seems not unlikely that this was the documentation forwarded to Roberts Shipping. On 9 December the Appellant paid Roberts Shipping $2053.76 for the clearance of the container and on the following day another $550.00 for the unpacking and cartage of the refrigerators to Rays Storage.

1. On 12 December the Appellant received a phone call from an Andy Platten who offered to bring the refrigerators to Sydney for a price of $2,200 cash, an offer the Appellant accepted. Unbeknown to the Appellant, Mr Platten was a police or customs officer.

1. As incidents of the above transactions the Appellant paid in all the following amounts:-

Mrs Tan $2,600.00

Mr Wood 150.00

Rays Storage 250.00

Roberts Shipping 2,053.76

Roberts Shipping 550.00

Andy Platten 2,200.00

$7,803.76

1. He was asked about the source of at least the money for Roberts Shipping and Mr Wood and said that cash for the payments came from Mr Alchikh.

1. I should mention also that at one stage the Appellant had a conversation with a Ms Shondra Hill from Rays Storage and there was a suggestion she might acquire one or more of the refrigerators. The Appellant said that Mr Alchikh forbade such a transaction and it was submitted that the proposal as between the Appellant and Ms Hill (who might have acquired one of the refrigerators containing drugs) indicated his ignorance of their existence. A recording of the conversation between the Appellant and Ms Hill was in evidence and the Crown suggested that it was obviously of a joking nature. There was also no compelling evidence that any fridge that went to Ms Hill would have been randomly selected.

1. A number of other disparate matters were also relied on by Counsel for the Appellant in this Court - documents concerning another refrigeration importation, the absence of obviously incriminating evidence in the intercepted conversations, the fact that the Appellant while in the witness box was not shaken in his denial of knowledge of the presence of drugs and the fact that he had previously worked with police as a helicopter pilot in the detection of marijuana crops. Though possibly of persuasive value, none of these matters are compelling and their weight was properly for the jury.

1. Quite apart from the use of false names and features of the phone calls to which I have referred, there are obviously some unusual features of the Appellant's account. Under it the United Kingdom supplier left to Mr Alchikh the price that the supplier was to receive for the refrigerators - 50% of Mr Alchikh's selling price. Mr Alchikh's engagement of the Appellant to assist him with selling is a fair indication that Mr Alchikh was unlikely to have had a reputation for selling refrigerators so as to inspire any confidence that he would obtain a good price for the supplier. Of course, the documents received by the Appellant and forwarded to Roberts Shipping argue against what the Appellant said he was told being accurate but the issue is incapable of resolution. Secondly, there seems on 3 November and when the Appellant was making inquiries as to prices for refrigerators some days later to have been no greater knowledge of the type of refrigerator other than it was of a large single door variety. Thirdly, although in the conversation of 3 November, it was asserted the container holding the goods was on its way from the United Kingdom (and its time of arrival suggests it was), the Appellant was informed of a change to both the size and number of items during the month. Fourthly, after the Appellant's conversation with Mr Zackta, the maximum gross return that the Appellant and Mr Alchikh could expect from the particular transaction was $7,290 (50% of $270 x 54). Yet he continued to make payments that totalled more than this figure. (It is fair to say that, while the Appellant was cross-examined to a limited extent on the relativity of payments and expected receipts, counsel for the Crown seemed to have accepted the Appellant's evidence that there was still good money, which the Appellant assessed would at the end be roughly $3,000 to $3,500 to be made.) Of course it should be remembered that the Appellant's version of what he was told by Mr Alchikh was that the arrangements with the United Kingdom's supplier would be ongoing.

1. There can be no doubt that the intercepted conversation of 12 December does provide some evidence that the Appellant was ignorant of the presence of drugs. However, as the Crown Prosecutor submitted in passages I have quoted, there were other possible explanations. In light of the matters referred to in the paragraph immediately preceding this one, the jury was quite entitled to reject the Appellant's evidence of ignorance and his explanation of involvement in the importation of the refrigerators. Although because the evidence in the trial from which the present appeal is brought differed from that under consideration in Swansson v R [2008] NSWCCA 56 I have formed my own view on the evidence here, I would echo the words of Simpson J in that earlier appeal, at [36] that there is "much to be said in respect of the Crown's arguments, particularly in relation to the use of false names, going well beyond what could reasonably have been necessary to achieve the purpose stated by the appellant ..."

1. In light of the fact that the refrigerators did contain drugs, of the notoriety that drug importations achieved (well before 2003), the Appellant's involvement in importations previously, and the extent of his activities and deception in and about the importation of the refrigerators, I am satisfied that the verdict was one at which the jury were entitled to arrive.

Conclusion

1. In my view the appeal against conviction should be dismissed.

1. DAVIES J: I agree with RS Hulme J.

**********

Amendments

21 March 2011 - Correct lower court date of decision to read: "13/05/2009".

Amended paragraphs: Cover sheet

Decision last updated: 21 March 2011