Visser v The Queen
[2015] VSCA 168
•26 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0154
| JAN (JOHN) VISSER | Applicant |
| v | |
| THE QUEEN | Respondent |
AND
S APCR 2014 0171
| CARMELO FALANGA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG, PRIEST and BEACH JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 25 May 2015 | |
| DATE OF JUDGMENT: | 26 June 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 168 | 1st Revision, 26 June 2015 paras [190] ff |
| JUDGMENT APPEALED FROM: | R v Falanga and Visser [2014] VSC 306 (King J) | |
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CRIMINAL LAW – Conviction – Conspiracy to possess over 15 million tablets containing 1.4 tonnes of pure MDMA – Drugs seized by police before conspirators could take possession of them – Multiple conspirators some of whom previously convicted and sentenced – Two applicants (A1 and A2) tried together – A1’s application – A1 self-represented – Whether verdict unsafe and unsatisfactory – Whether trial judge erred in excluding certain defence evidence as hearsay – Whether trial judge erred in admitting evidence of accused’s association with other conspirators post-conspiracy period – Whether unfair prejudice as a result of failure to order separate trial – Whether substantial miscarriage of justice as a result of conduct of prosecutor and trial judge – Whether unfair prejudice as a result of non-disclosure by Crown of particular listening device transcript – No substance to any of the proposed grounds – Leave to appeal refused.
CRIMINAL LAW – Conviction – Applicants’ defence at trial was that they thought contents of shipment was illicit tobacco not MDMA – A2’s application – Whether trial judge erred in failing to direct jury that Crown must establish applicants knew shipment contained a border controlled drug as opposed to some drug or drug related substance – No error established – Leave to appeal refused.
CRIMINAL LAW – Sentence – A1 sentenced to 11 years with non-parole period of 8 years – Had completed lengthy term of imprisonment in New South Wales for unrelated offending immediately prior to present sentence being imposed – Whether insufficient weight given to prior New South Wales sentence – Whether sentencing judge made impermissible use of A1’s prior convictions – Whether unjustifiable disparity with sentence of 10 years previously imposed on a different co-conspirator – Whether sentence manifestly excessive – Leave to appeal refused.
CRIMINAL LAW – Sentence – A2 sentenced to 23 years with non-parole period of 16 years – Whether sentence manifestly excessive – Whether unjustifiable disparity with sentence of 20 years previously imposed on a different co-conspirator – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Visser | Mr Visser appeared in person | |
| For the Applicant Falanga | Mr S Bayles | Robert Stary Lawyers |
| For the Crown | Mr D J Lane | Commonwealth Director of Public Prosecutions |
WEINBERG JA
PRIEST JA
BEACH JA:
After a trial lasting the better part of two months, the applicants, Jan Visser and Carmelo Falanga, were each convicted of one charge of conspiracy to possess a commercial quantity of MDMA (commonly known as ‘ecstasy’).
Visser was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.5(1) and 307.5(1)] Life imprisonment or 7,500 ($825,000) penalty units (or both) 11 years’ imprisonment N/A Total Effective Sentence: 11 years’ imprisonment Non-Parole Period: 8 years Pre-sentence Detention Declared: 692 days
Falanga, who was significantly more culpable than Visser, received the following sentence:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.5(1) and 307.5(1)] Life imprisonment or 7,500 ($825,000) penalty units (or both) 23 years’ imprisonment 6 months and 10 days (Sentence to commence 14 December 2014)* Total Effective Sentence: 23 years’ imprisonment Non-Parole Period: 16 years 6 months Pre-sentence Detention Declared: 14 days
It should be noted that at the time that Falanga was sentenced, he was already serving a state sentence in South Australia of 9 years’ imprisonment with a non-parole period of 4 years and 6 months. This was for drug and firearms offences committed while he was on bail for the current matter. The state sentence was imposed on 30 August 2012 but, in accordance with South Australian practice, its commencement was backdated to 14 July 2011.
In September 2013, Falanga was transferred to Victoria, pursuant to, inter alia, the provisions of the Prisoners (Interstate Transfer) Act 1983 (Vic).[1] Upon transfer, his South Australian sentence was deemed by s 27(1) of that Act to have been imposed by a corresponding Victorian court.
[1]See below [206].
Pursuant to s 19(1)(b) of the Crimes Act 1914 (Cth), the effect of the commencement date (14 December 2014) chosen by King J in the present matter was to cumulate 6 months and 10 days upon the 23 year sentence that her Honour imposed.
Background facts
The indictment alleged that between 13 June and 3 October 2007, Visser and Falanga conspired with each other, and with Pasquale Barbaro, Saverio Zirilli, John Higgs, Rob Karam, Salvatore Agresta, Pasquale Sergi, and others, to possess a commercial quantity of an unlawfully imported border controlled drug, namely, MDMA.
Prior to the trial of Visser and Falanga, each of the other named conspirators had been convicted and sentenced for his part in the commission of this offence. Barbaro and Zirilli had pleaded guilty, and had received lengthy sentences. Higgs, Karam, Agresta and Sergi had stood trial, and had also received lengthy terms of imprisonment.
The conspiracy related to an enormous quantity of MDMA — more than 15 million tablets, containing in excess of 1.4 tonnes, pure, of the drug. These tablets had been concealed in some 3000 large cans, each labelled ‘Peeled Tomatoes’. The consignment had been loaded on board the ‘MV Monica’ in Naples, Italy, in late May 2007.
It is important to note that the conspiracy as charged did not relate to the importation of the tablets. Rather, its object was said to have been to obtain possession of the drug, after it had been landed in Australia.
The MV Monica docked in the Port of Melbourne on 28 June 2007. The vessel was unloaded on the same day. The container was opened, and its contents inspected by customs officers. Some of the cans were found to contain gravel or rocks. These were obviously placed there so that the weight of the container matched that on the bill of lading. Others were found to contain various coloured tablets, which were then seized. The tablets were stamped with different symbols, including a kangaroo on some, and a crown on others.
The total number of tablets seized was 15,193,798. The net weight of the tablets was 4,423,870 grams, more than 4.4 tonnes. The average purity of MDMA in the tablets was approximately 33%. The total quantity of MDMA was more than 2900 times the commercial quantity for that drug under the Criminal Code Act 1995 (Cth) (‘Criminal Code’), which was 500 grams.
Following the seizure of the tablets, an inert substance was substituted so that a controlled delivery could be carried out. Ultimately, however, that did not occur.
The shipping container was addressed to a legitimate business ‘Trans Global Food Brokers’. However, the designated consignee had no knowledge whatever of the shipment, and no involvement in having arranged for it to be brought to this country. Contact numbers and email addresses provided for ‘Trans Global’ were entirely unrelated to that organisation. Clearly the plan was that the container and its contents would be diverted to a person whose contact details had been provided. When safe, the container would be removed, and taken elsewhere to be unloaded, stored, and its contents ultimately distributed.
The Crown alleged that Barbaro was the principal organiser of the conspiracy. Zirilli, Barbaro’s cousin, was said to be his ‘right hand man’. Falanga was another of the main players in the conspiracy. The Crown alleged that Visser, who had been recruited by Barbaro, was a willing participant, and that he was prepared to do whatever was asked of him.
The Crown relied upon a substantial body of circumstantial evidence to prove both the existence and object of the conspiracy, as well as the participation of the named conspirators in the plan.
Evidence was led that the various conspirators met together, in Melbourne and elsewhere, on a number of occasions during the period of the alleged offending. There was also a vast body of telephone intercept and listening device product throughout that same period, as well as before the commencement of the conspiracy, and in its aftermath. It was a fact that each of the alleged conspirators used mobile telephones that were subscribed in false names.
Evidence was also led that a number of the conspirators were well-known to each other, prior to the commencement of the conspiracy. Barbaro, Zirilli and Sergi were all related. Visser had known Barbaro for approximately 15 years, and Zirilli for about 18 months. Visser gave evidence, in his defence, that he at all relevant times believed that Barbaro and Zirilli were connected to the ‘Calabrian Mafia’.
Several of the named conspirators lived interstate. Barbaro, Zirilli and Sergi all lived in Griffith, New South Wales, whilst Falanga lived in Adelaide. Each of them came to Melbourne, at various times, in order to meet and discuss arrangements for retrieving the MDMA from the container.
Some of these meetings were recorded by surveillance devices. As we have said, many telephone calls and SMS messages were intercepted and recorded. The Crown relied upon inferences to be drawn from the fact, content and tone of those communications. A large number of them involved the use of code. Some of the meetings took place in public, as for example in various restaurants and parks.
In the course of their discussions, the conspirators, including Visser, exhibited a high degree of anxiety, bordering upon paranoia, regarding possible informers, police surveillance, and the risk of detection. Those conversations were characterised by cryptic communications, occasional whispering, and background noises, such as television broadcasts, seemingly intended to make them difficult to overhear.
There were a number of references to the vast rewards to be gained if the venture succeeded. There were also references to the imprisonment that awaited them all if they were caught.
By choice, Visser was unrepresented during the trial. As indicated, he gave evidence in his own defence. Put simply, he claimed that he had, at all relevant times, believed that the container held a large quantity of illicit tobacco (‘chop-chop’). He said that it had never occurred to him that the container might conceal drugs.
Falanga, who was legally represented, also gave evidence in his own defence. He said that he had initially believed that the shipment contained olive oil. That was until Zirilli told him, on 27 June 2007, during a conversation that was not recorded, that the shipment contained illicit tobacco. Like Visser, he claimed that he had no idea that the shipment contained drugs.
Visser’s conviction application
As he had done at trial, Visser chose to represent himself before this Court on the application for leave to appeal. He put forward some nine grounds of appeal, although several of them seemed to make separate and distinct points. Regrettably, those grounds are drafted in a somewhat discursive fashion, and some are difficult to follow. Most of them are expressed in prolix terms, rather than stating succinctly the particular arguments now sought to be advanced.
For this reason, we have endeavoured, as best we can, to identify the gist of each proposed ground.
We shall deal with them in the order in which Visser himself chose to argue them, orally, before this Court.
Ground 6 — unsafe and unsatisfactory
This ground was particularised in the following way.
Visser (correctly) observed that the fault element for conspiracy under the Criminal Code was knowledge. He argued that this meant that the Crown was required to prove knowledge on his part not merely of the existence of the container, but also of the precise nature of its contents.
Visser submitted that, at its highest, the Crown case against him established nothing more than knowledge on his part that he was being asked by Barbaro and others to assist in obtaining possession of the container. It did not establish that he was aware of the nature of its contents.
Ground 6 is predicated upon a particular assumption, namely that the case against Visser was solely based upon a handful of conversations to which he was a party. These particular conversations were all surreptitiously recorded by a listening device that had been installed in room 609 of the Pacific International Suites in Little Bourke Street. They took place between 2 and 5 July 2007.
In essence, Visser pointed to a series of statements which he had made to Sergi, in particular, to the effect that he expected to be paid about $500,000 for his role in the conspiracy. That figure was said to represent about 10 per cent of the value of the contents of the container which it was his job to take possession of. Visser submitted that these statements made it clear that it was always his belief, based upon what he had been told by Barbaro and others, that the total value of whatever the contents of the container may have been was about $5 million.
Visser argued that this figure was entirely consistent with a belief on his part that the contents of the container consisted of illicit tobacco. He submitted that had he thought, for one moment, that the container concealed within it something like 4.4 tonnes of MDMA, he would have expected to be paid 10 per cent of the value of that drug, a figure at least 20 times greater than the $500,000 of which he spoke.
Visser submitted that, faced with these conversations, a jury, acting reasonably, could not have failed to entertain a reasonable doubt as to his guilt, because the Crown could not have rebutted his defence that he at all times believed the contents of the container to be illicit tobacco.
Visser took the Court through a number of listening device transcripts upon which he specifically relied in support of that submission.
The first involved a conversation between Sergi and himself at 5:35 pm on 3 July 2007. Sergi asked Visser ‘how much is involved’. Visser replied ‘for that sort of money I’d ah 10 per cent of that’. Visser went on to say ‘I might get half a mill’.
It is fair to say that this particular discussion represents one of the high points of Visser’s argument in support of this ground.
Next, there was a discussion between Visser and Sergi at 8:51 pm that same evening. Visser said to Sergi:
I’ve got 1, 2, 3, 4 million sitting there … I’d run a team in there and fuckin fully arm them up and just say listen this is how this is it … get a crane driver on site and fuckin hitch her up, roost it on the back of a still-hot semi …
According to Visser, his reference to the contents of the container being worth anything up to $4 million was consistent with his stated belief that what he was dealing with was illicit tobacco, and most certainly not several tonnes of drugs.
Visser then drew our attention to a discussion between himself and Sergi several minutes later. Visser said that he was ‘not involved basically’, and described himself as just an observer. He said that he was ‘not the captain’, but merely ‘in the tug boat’, getting the ‘salvage team’ ready to move the ‘ship’ from where it had been beached.
Visser next referred to a conversation that took place at 10:47 pm that same evening. Now in the company of Zirilli and Sergi, Visser stated that ‘the thing’s been off for a while’. That comment by Visser was said to support a separate strand of his defence to the effect that, by this stage, Visser was convinced that it would be impossible to take possession of the container. Perhaps more importantly, Visser submitted that his comment to Zirilli and Sergi suggested that he had been aware for some time that whatever was in the container had been detected.
An hour or so later, Visser said to Zirilli that the container would have to go through an x-ray machine, and in that way would have been ‘audited’. Visser explained that, by that statement, he meant only that the contents of the container would have had to be taken out and weighed, before being replaced with an inert substance.
During the course of his oral submissions before us, Visser was asked whether, at any stage throughout the vast array of recordings that had been placed before the jury, there had been any mention, direct or indirect, of tobacco, whether illicit or otherwise. He acknowledged that there was nothing in the recorded material to that effect.
In further elaboration of his submissions in support of ground 6, Visser argued that there were a number of discussions from which it could plainly be inferred that Barbaro and Zirilli had withheld critical information from him. For example, they had not told him that the container had been ‘flagged’ (i.e. suspected of containing contraband) some time before. He submitted that, by parity of reasoning, the jury should have accepted that Barbaro and Zirilli had never, at any stage, told him that drugs were involved in this case. He maintained that he had only learned the truth a year or so later, after he had been arrested.
Of course, as was discussed with Visser during the course of his oral argument, the fact that he may have believed the value of the contents to be of the order of $5 million, rather than somewhere between $100 million and $400 million, did not necessarily support his claim that he at all times believed he was dealing with illicit tobacco. It might be, for example, that he was well aware that there were drugs in the container, but he had no idea of their true value.
Visser also argued separately, under the rubric of ground 6, that a question from the jury to the effect that they were uncertain as to whether they had to be satisfied that he had agreed to import MDMA, as distinct from a border controlled drug, indicated that his conviction had to be unsafe. He submitted that a question in that form showed that the jury had not understood the most basic proposition, namely, that he had been charged with a conspiracy to possess, and not a conspiracy to import.
As we said during the course of oral argument, there was another possible explanation for the jury’s reference to ‘import’ in the question. That was that it simply amounted to a slip, and should not be taken as an indication that the jury had failed to appreciate the critical distinction between a conspiracy to import and a conspiracy to possess.
In that regard, it should be noted that the jury were told repeatedly, by the judge, and also by both the prosecutor and counsel for Falanga, that the conspiracy alleged by the Crown had as its object the taking of possession of the contents of the container, and had nothing to do with any anterior conduct. The jury were also told repeatedly that they had to be satisfied that Visser knew that he was being asked to facilitate the retrieval of a border controlled drug, as distinct from illicit tobacco. They were given these very specific instructions in writing, and also in the form of a ‘decision tree’.
In these circumstances, we are entirely satisfied that the reference to ‘import’ in the question posed involved nothing more than a colloquialism, and should not be taken to constitute a vitiating error.
The principles governing a ground asserting that a verdict is unsafe or unsatisfactory are well-settled.[2]
[2]See Greensill v The Queen (2012) 37 VR 257; SKA v The Queen (2011) 243 CLR 400 (‘SKA’); R v Klamo (2008) 18 VR 644 (‘Klamo’); Libke v The Queen (2007) 230 CLR 559 (‘Libke’); M v The Queen (1994) 181 CLR 487.
In Libke, Hayne J (Gleeson CJ and Heydon J agreeing) formulated the relevant test as follows:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[3]
[3]Libke (2007) 230 CLR 559, 596–7 [113] (emphasis original) (citations omitted).
As the High Court made clear in SKA, the task of an intermediate appellate court when considering a ground which alleges that a verdict is unsafe or unsatisfactory is to make an independent assessment, based upon the whole of the evidence, in order to determine whether the verdict of guilty can be supported.[4]
[4]SKA (2011) 243 CLR 400, 409 [22].
The relevant principles were conveniently summarised by Maxwell P in Klamo:
The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:[5]
[5]M v The Queen (1994) 181 CLR 487, 493–4.
‘1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion …
In other words, the question posed in M v R, namely:
‘Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?’
requires the court of criminal appeal to decide:
‘… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.’ [6]
[6]Klamo (2008) 18 VR 644, 653–5 [38]–[43].
Thus, in order to succeed upon ground 6, Visser must establish that it was not open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of his guilt. In the context of this case, that means that the jury could not have rejected his defence that he believed he was dealing with illicit tobacco.
In our view, the inferences that the jury were invited by the Crown to draw were all well open. Those inferences were not refuted by references to a handful of comments by Visser, selectively chosen, and the construction of which may be debated, as to what he later claimed he had conveyed to Sergi regarding the value of the contents of the container.
Visser must also confront the operation of the co-conspirators rule,[7] as giving shape and content to the nature and object of the conspiracy into which he had plainly entered. He must also overcome the inferences legitimately to be drawn from the evidence of his post-offence conduct. That includes, in particular, his ongoing involvement with Barbaro and others, in Europe, throughout the latter part of 2007 and into 2008. The jury would have been well entitled to treat that evidence as supporting the Crown case, and as inconsistent with any notion that he had been transiently involved in nothing more than an agreement to take possession of some illicit tobacco.
[7]Ahern v The Queen (1988) 165 CLR 87.
In these circumstances, there is no substance to ground 6.
Grounds 2 and 3 — excluding defence evidence as hearsay
Grounds 2 and 3 may be considered together.
Ground 2 asserts that the trial judge erred in law by refusing Visser permission to call, as a defence witness, a man by the name of Lloyd Murrell. Ground 3 complains of her Honour’s refusal to admit the evidence of Murrell in rebuttal.
The evidence that Visser sought to lead from Murrell was set out in an affidavit sworn by Murrell on 5 June 2013. In that affidavit, Murrell said that he had known Barbaro since 1995, and Zirilli since 2011. He went on to recount a conversation which he claimed to have had with them while all three were in prison together.
This conversation was said to have taken place in late February 2012, ‘about four or five days’ after Barbaro and Zirilli were sentenced for their involvement in the conspiracy ‘in mid-February 2012’. In fact, Barbaro and Zirilli were not sentenced until 23 February 2012.
Murrell claimed that, during the conversation, Barbaro and Zirilli said the following:
Zirilli:We should have stayed doing tobacco containers as this here is a disaster.
Barbaro:Bit late for that now.
Zirilli:When we were getting sentenced did you hear that they might be charging Johnny Visser?
Barbaro:I can’t understand why? We told Johnny that the container was full of tobacco and I never mentioned eccies to him.
Zirilli:Yeah I remember you saying to Johnny that there was $4 to $5 million worth of tobacco in the container and we never mentioned eccies to him.
Putting to one side any question as to what credence a jury would be likely to have accorded to evidence of this kind, the trial judge ruled that Murrell’s account was hearsay, and inadmissible. Her Honour noted that both Barbaro and Zirilli were available to give evidence should Visser wish to call them. They could both then give a direct account of precisely what they had told Visser at the time of the alleged conspiracy as to the contents of the container.
Visser, of course, ultimately declined to call either Barbaro or Zirilli. His explanation to us was that these men were associated with the ‘Calabrian Mafia’, and he was frightened to call them as witnesses on his own behalf. That was because they might resent being cross-examined about other matters with which they had not, at that stage, been charged.
Visser submitted that her Honour had erred in characterising Murrell’s evidence as hearsay. He submitted that Murrell’s account of what Barbaro and Zirilli had told him was not to be tendered to prove the truth of that which they asserted, but merely the fact that Barbaro and Zirilli had indeed made those statements to him.
Put simply, Visser submitted that Murrell’s account should be regarded as original evidence rather than hearsay. He argued that, in some way, that evidence was relevant to his own state of mind, and could therefore be led without infringing the hearsay rule.
Visser invoked two cases which he submitted supported his argument: Subramaniam v Public Prosecutor[8] and Walton v The Queen.[9]
[8][1956] 1 WLR 965 (‘Subramaniam’).
[9](1989) 166 CLR 283 (‘Walton’).
In Subramaniam, the appellant was convicted in Malaya of unlawfully possessing ammunition. His defence was that he had been captured by terrorists, and was at all times acting under duress. At trial, he sought to lead evidence of threats that had allegedly been made to him by the terrorists. The Privy Council held that the trial judge had erred in excluding the evidence as hearsay. The evidence was admissible, not to prove the truth of its contents, but as bearing upon the appellant’s state of mind, an issue that was plainly relevant to his defence.
The decision of the High Court in Walton is to similar effect. In a trial for murder, the Crown led evidence from a number of witnesses to the effect that the deceased had said to each of them that she intended to travel to a particular place to meet the accused on the day of her death. The Court held that the evidence was admissible as original evidence of conduct on the part of the deceased from which her state of mind (namely, her intention to meet the accused at the place in question) could be inferred. In other words, as the probative value of the evidence lay in the fact of the statements having been made, rather than the truth of any assertion, express or implied, contained therein, the evidence was not hearsay.
In the present case, anything said by Barbaro and Zirilli to Murrell as to what they had supposedly told Visser regarding the contents of the container, and its value, could only be relevant insofar as that evidence was received to prove the truth of that which was asserted.
This is, as the judge ruled, classic hearsay. If Barbaro and Zirilli did in fact tell Murrell that they had previously told Visser that the consignment contained tobacco, and was worth $4–5 million, the only way that evidence could be received in Visser’s trial was by calling Barbaro and Zirilli. Murrell, who allegedly overheard those statements being made, could not give that evidence as he was not present at, or a party to, the discussions with Visser. Neither Subramaniam nor Walton is in point.
Ground 3 fails for the same reason. Visser argued that Murrell should have been permitted to give evidence of what he heard Barbaro and Zirilli say, during their conversation in his presence, in rebuttal of the suggestion, supposedly put to Visser in his cross-examination, that he had recently invented the illicit tobacco defence, presumably at some time proximate to the commencement of the trial.
Even if an allegation of recent concoction had been put to Visser, it could not be rebutted by inadmissible hearsay. Murrell was simply recounting what he claimed Barbaro and Zirilli told him regarding what they had earlier said to Visser. The only probative value that their out of court statements could possibly have would be if those statements were accepted as true, namely, that they had in fact told Visser what they claimed. The hearsay rule precludes evidence in that form even where the out of court statements are said to be exculpatory.[10]
[10]Bannon v The Queen (1995) 185 CLR 1.
Neither ground 2 nor ground 3 can be sustained.
Ground 4 — admissibility of post-offence relationship evidence
As Visser rightly observed, evidence concerning his conduct from 3 October 2007 through to 2008, and in particular his continuing relationship with Barbaro and Zirilli, could not be received as being in furtherance of the conspiracy charged. Nonetheless, the Crown submitted that Visser’s post-offence conduct demonstrated that the inferences sought to be drawn from his actions and statements during the period of the conspiracy were all properly available.
The evidence in question showed that Visser maintained close links to Barbaro and Zirilli while all three were in Europe for a good part of 2008. For example, Visser met Barbaro in France in October 2007, and Zirilli in Germany in March 2008.
There was further evidence, led on behalf of Falanga, that Barbaro and Zirilli were engaged in other drug-related activities throughout that entire period. Though undoubtedly helpful to Falanga, that evidence was said to be highly prejudicial to Visser given his ongoing relationship with them. Visser sought to have all of this evidence excluded. The trial judge ruled against him, holding that it could be led as relevant to his association, on an ongoing basis, with at least Barbaro and Zirilli.
Thus, in the trial, the Crown led evidence of the following post-offence conduct of Visser:
(a)On 10 October 2007, Visser drove to Griffith. He met with Barbaro the following day.
(b)On 11 October 2007, Visser flew to Adelaide, where he made contact with Burns (an associate of Falanga) and attempted to collect money. Visser reported to Barbaro on his attempts to collect money from Burns and Falanga.
(c)On 12 October 2007, Visser flew from Adelaide to Paris. He travelled on a false passport, and was in possession of four mobile telephones with SIMs subscribed in false names. Visser remained in Europe during the following months.
(d)On 14 October 2007, Visser met with Barbaro in Paris.
(e)In January 2008, there were communications between Barbaro and Visser (who was then in the Netherlands) about meeting in Singapore or Amsterdam and about sending money.
(f)In March 2008, Barbaro contacted Visser while he was still in Europe. Barbaro asked Visser to pick up Zirilli in Dusseldorf. (Zirilli was then travelling from Australia to Dusseldorf with an associate, Polimeni.) Visser did so.
(g)After a short stay in Dusseldorf, Visser drove with Zirilli and Polimeni to Brussels, where Polimeni left them. Visser then drove Zirilli to Paris, from where Zirilli flew back to Australia.
The Crown submitted, in answer to ground 4, that this evidence of post-offence conduct was admissible to rebut lines of defence which Visser had foreshadowed in pre-trial argument, and/or advanced during the trial. These included:
(a)[Visser] claimed that Barbaro told him on 27 June 2007, in the presence of Zirilli, that the container held only tobacco in some form, and he believed it. It did not occur to him that the container might contain drugs. [Visser] agreed to be on standby to assist in obtaining the contents of the container; he expected a reward, but there was no discussion of what it would be. [Visser] said that he had not asked any further questions of Barbaro or Zirilli about the shipment, or about his role, and had not been told any more, nor did he discuss with anyone else the contents of the container. [Visser] claimed that Barbaro and Zirilli deceived him about the contents of the container, and that the deception continued until several of the conspirators were arrested in August 2008.
(b)In any event, [Visser] claimed that his involvement with the scheme to obtain the contents of the container had been fleeting and that from 4 July 2007, he ceased to be involved in the agreement after he became aware of the level of risk associated with persisting in it. Indeed in pre-trial submissions, [Visser] went so far as to foreshadow reliance on the statutory ‘defence’ that he withdrew from the agreement and took all reasonable steps to prevent the commission of the offence.
As the Crown correctly submitted:
[Visser’s] subsequent conduct, including his dealings and meetings with Barbaro and Zirilli in late 2007 and early 2008, illustrated the true duration, nature and extent of his relationship with Barbaro and Zirilli. It was a relationship of trust and intimacy (despite [Visser’s] belief that Barbaro and Zirilli were dangerous, and were part of the Calabrian mafia). The degree of trust made it unlikely that, in his dealings with Barbaro and Zirilli in relation to the container, [Visser] did not know that it contained a border controlled drug. Given the nature of their continuing association, it is unlikely that Barbaro and Zirilli deceived him, or concealed the truth from him, about the contents of the container over such a long period of time.
The post-conspiracy evidence also provided a compelling rebuttal of the ‘defence’ of withdrawal. The Crown needed to anticipate that ‘defence’, not only because it had been specifically raised by the applicant in pre-trial argument, but also because [Visser] bore no more than an evidential burden in relation to it. Only ‘slender evidence’ would be required to discharge the evidential burden. Once the evidential burden was discharged, the ‘defence’ would require disproof by the Crown beyond reasonable doubt.
If [Visser] had in fact withdrawn from the conspiracy on 4 July 2007 because of the risks to which Barbaro and Zirilli had exposed him, it is unlikely that he would have undertaken further dealings with them as he did. The evidence also tended to show that [Visser] had not taken ‘all reasonable steps to prevent the commission of the offence’ which was the object of the conspiracy. Such steps would have at least required [Visser] to discourage Barbaro and Zirilli from persisting, and to disassociate himself from them, if not also to inform the police of their activities (at least anonymously).
The Crown did not adduce evidence of drug offending by Barbaro or Zirilli after the conspiracy period. Counsel for Falanga did introduce evidence of such offending, apparently to make the point that Falanga was not involved in it. [Visser] neither objected to that evidence, nor asked the judge to give any directions in relation to it. Indeed [Visser] went further, by seeking to introduce evidence that Barbaro had been sentenced to life imprisonment. It may be inferred that [Visser] thought that evidence of the extent and seriousness of Barbaro’s subsequent offending assisted his ([Visser’s]) case — for example, by supporting his claim that he had not asked more about the container because he believed that Barbaro was associated with the Calabrian mafia. [Visser] undertook the forensic risks associated with this line of defence. He cannot now be heard to complain about possible prejudice flowing from it.
In any event, [Visser’s] present claim about the risk of prejudice from the evidence of his post-conspiracy association with Barbaro and Zirilli is exaggerated, for several reasons:
(a)The evidence led by the Crown merely showed the fact and nature of their continuing association and was explicitly put only on a limited basis.
(b)No party sought to connect [Visser’s] association with Barbaro and Zirilli after 3 October 2007 with their further offending.
(c)[Visser] gave evidence of innocent explanations for his various dealings with Barbaro and Zirilli after 3 October 2007, including his trip to Griffith and his attempts to collect money from Burns and Falanga, his meeting with Barbaro in Paris, and his meeting with Zirilli and Polimeni in Dusseldorf.
(d)It was implicit in the evidence of events during the period of the charged conspiracy that it provided a mere snapshot of the ongoing criminal activities of Barbaro and Zirilli. That is, it was apparent from that evidence that Barbaro and Zirilli were engaged in serious and continuing drug offending. Far from shrinking from such evidence, [Visser] sought to rely on their criminality as part of his defence.[11]
[11]Emphasis in original.
In our opinion, Visser has failed to demonstrate that his trial miscarried by reason of the admission of evidence of his post-offence conduct. Nothing in s 137 of the Evidence Act 2008 required its exclusion. The evidence was highly probative, and the jury were given careful directions as to the limited use to which it could be put.
Ground 4 must be rejected.
Ground 5 — separate trials
Visser made an application, during the course of a pre-trial hearing, for a separate trial. The trial judge rightly refused that application, this being a trial of two alleged co-conspirators where much of the evidence was common to both of them.
As we understand Visser’s position, he does not now contend that the trial judge erred in that ruling. He does, however, seek to invoke the principle that although a ruling refusing a separate trial may have been correct when initially made, the course that the trial takes may be such as to require the jury to be discharged and a separate trial ordered.[12]
[12]Visser cited R v Demirok [1976] VR 244 and R v Gibb [1983] 2 VR 155 in his written case.
Visser links this ground to ground 4 by pointing to what he submits was the unfair prejudice to his case brought about by the introduction on behalf of Falanga of a good deal of detail concerning Barbaro and Zirilli’s ongoing drug dealing throughout 2008. That evidence was led from the informant, without Visser having objected to it. He initially maintained, before this Court, that he had been unaware of his right to object to evidence led on behalf of Falanga, which could be seen to assist Falanga’s defence. He subsequently qualified that submission, claiming, in effect, that he had been intimidated by her Honour, and had not felt able to assert his rights.
The evidence in question regarding Barbaro and Zirilli concerned, inter alia, a separate conspiracy between them involving their trafficking of $1.2 million worth of ecstasy pills. It was not suggested that Visser had any involvement in that conspiracy. There was also reference, courtesy of Falanga, to an importation of 150 kilograms of cocaine, a quantity of pseudoephedrine, and the proceeds of crime to the value of $5.6 million having been sent overseas to the European suppliers.
Visser argued that although counsel for Falanga had not sought to connect him directly to these other drug-related activities, the jury would inevitably have tarred him with the Barbaro–Zirilli brush.
In answer to ground 5, the Crown submitted that it was important to remember that Visser and Falanga were both charged with a specific conspiracy to possess a specific amount of MDMA. Neither faced any additional charges. Virtually all of the evidence led by the Crown was admissible against both of them. In circumstances such as these, separate trials would rarely be warranted.
The Crown, having persuaded her Honour that Visser’s post-offence conduct was relevant to the charge brought against him, was entitled to cross-examine Visser about his ongoing relationship with Barbaro and Zirilli. Visser had suggested, by implication at least, that his relationship with these men had been somewhat transient. In these circumstances, the fact that he had met with, and dined with, Zirilli in Dusseldorf (as well as others associated with Barbaro and Zirilli), was highly relevant, and of considerable significance so far as the Crown case was concerned.
That cross-examination would have been legitimate irrespective of whether Visser had been granted a separate trial.
It is true that Falanga’s counsel sought, appropriately from his client’s point of view, to bring out the fact that Falanga had had little or no contact with Barbaro and Zirilli after October 2007. No doubt the contrast between Falanga, in that respect, and Visser, would have been stark.
It remains the case that Visser did not object to that evidence when it was led. Nor could he successfully have done so. However, nor did he seek a discharge of the jury or renew his earlier application for a separate trial.
Visser’s explanation for not having done so, namely that he felt intimidated by the trial judge, and did not believe that there was anything that he could do about the matter, is not persuasive. True it was that Visser was, by choice, unrepresented at trial. However, a reading of the trial transcript shows no reluctance on his part to stand up to the judge whenever he considered it in his interests to do so. Although Visser initially submitted that he had been unaware of his right to seek a discharge of the jury, he subsequently resiled from that contention, accepting before us that he had been aware, throughout the entirety of the trial, that he could, at any stage, seek a discharge of the jury.
The fact remains that there was no evidence linking Visser to any drug-related activities carried out by Barbaro and Zirilli in 2008. No one, not the prosecutor, and not counsel for Falanga, invited the jury to draw any such inference. All that the jury knew was that Visser had had some contact with these men, and several of their associates, in Europe at various stages during that period.
There was no high degree of need to discharge the jury, and no reasonable basis upon which to grant Visser a separate trial. Ground 5 fails.
Ground 7 — prejudicial conduct of the prosecutor
Visser submitted that the prosecutor had conducted himself unfairly during the course of the trial by, inter alia, suggesting to the jury that they should follow an ‘impermissible line of reasoning’, and by making improper and prejudicial statements of a kind likely to ‘inflame’ them. Visser complained that the prosecutor had invited the jury to engage in speculation, and ‘guilt by association’.
In his written case, Visser referred to a number of examples of what he submitted constituted improper conduct on the part of the prosecutor. He alleged that, during the course of evidence, the prosecutor had pulled faces. He submitted that various statements by the prosecutor regarding Barbaro having been involved with the ‘mafia’ were designed to prejudice him, by reason of the fact that he had had a long association with Barbaro, and one that was ongoing.
Curiously, however, it was Visser himself who had first introduced the fact that Barbaro was connected in some way to the ‘Calabrian Mafia’. Indeed, he described Barbaro as being the local mafia boss. Visser submitted, somewhat unconvincingly, that it did not follow that he appreciated that Barbaro was likely to have had a link with drugs, despite the international connection.
We should say that this particular submission has an air of unreality about it, given the certain knowledge that Barbaro and Zirilli had jointly entered into one of the most extraordinary drug conspiracies ever consummated in this, or any other western nation. Having regard to Visser’s own decision to lead evidence of mafia connections, the prosecutor did nothing untoward by cross-examining him as to his knowledge of Barbaro’s reputation as a mafia boss.
As regards the prosecutor having conducted this trial in an over-zealous fashion, Visser referred to one line in the prosecutor’s closing address where he compared Visser to a character from the well-known television series, ‘Hogan’s Heroes’. The character was, of course, Sergeant Schulz, and his trademark line was ‘I know nothing’.
Whatever criticisms might be levelled at the prosecutor for his attempt to inject some measure of levity into his closing address, it is hardly likely that a throwaway line of that kind could have swayed the jury into convicting Visser in circumstances where he might otherwise have been acquitted.
There were other instances of attempted levity, some of which it must be said were poorly judged. It is unnecessary to set them out here. A prosecutor must present the Crown case fairly, but is not constrained to a colourless presentation in final address. It is all a question of balance, and ensuring that what is said is not unfairly prejudicial.
The reference to Sergeant Schulz may not have been the finest example of the advocate’s art, but it falls a long way short of establishing unfair prejudice to Visser.
Ground 7 must be rejected.
Ground 1 — the conduct of the judge
Under cover of ground 1, Visser complains about:
(a)the judge’s interruptions during Visser’s evidence-in-chief and cross-examination;
(b)the judge interrupting Visser during his final address; and
(c)the judge’s failure to give Visser an adjournment when he ‘was struggling with the continual interruptions [in his] final address’.
Further, in ground 1, Visser asserted that, by reason of the judge’s interruptions during his evidence and final address, the judge ‘showed a failure to maintain a neutral position’.
There is no substance in any of these complaints. An examination of the transcript of this 40-day trial discloses that, far from any lack of neutrality on the part of the judge, her Honour was at pains to provide appropriate assistance to Visser in the conduct of his defence, and to ensure that he did not take a step that would otherwise be detrimental, or prejudicial to his interests. That said, from time to time, the judge had to stop Visser from either giving evidence that was irrelevant or otherwise inadmissible, or from giving evidence from the bar table. On other occasions she had to intervene to stop him from disregarding or contravening a ruling previously made.
So far as the judge questioning Visser during the course of his examination-in-chief is concerned, it is clear that her Honour was at pains to assist Visser in giving such admissible evidence as he was able to give. A number of the judge’s questions were plainly designed to achieve this purpose. While there were other interruptions from time to time designed to ensure that Visser complied with the rules of evidence or previous rulings, there was nothing inappropriate or untoward in relation to any of these.
As part of his complaint about the judge questioning him during his evidence-in-chief, Visser asserted that he was required by her to answer a number of questions on topics that he did not wish to give evidence about. Specifically, Visser complained about the judge questioning him in relation to matters that occurred after 3 October 2007.
There is no substance to this complaint. While it is true that the judge asked questions that covered the period October 2007 to May 2008, there is nothing to suggest that she took Visser into areas about which he did not wish to give evidence.
In argument, Visser asserted that he felt obliged to answer the judge’s questions without objection because at an earlier point in his evidence her Honour had said to him:
You don’t get to choose, Mr Visser. You actually just don’t get to choose what you are going to tell the jury and what you don’t. You have taken your oath to tell the truth and you have to answer these questions.
However, this statement by the judge has to be examined in context. At that point in Visser’s examination-in-chief, he was attempting to give an incomplete answer about a matter. The judge rightly told him that he could not do that.
Notwithstanding what her Honour said in the passage relied upon by Visser, when one looks at the whole of Visser’s evidence, we see no reluctance on his part to give what he no doubt regarded at the time as answers that were supportive of his case, to the questions asked by the judge — such answers providing an innocent explanation in relation to his contacts and relationship with Barbaro and Zirilli (an investment in a Spanish olive oil business).
That her Honour did not take Visser into areas into which he did not wish to venture is also borne out by the fact that, when he wanted to terminate his evidence-in-chief, he answered the last of the judge’s questions and then said ‘That concludes my evidence’. At that point, the judge stopped asking questions and Visser’s cross-examination commenced.
Before turning to the questions that the judge asked Visser during the course of cross-examination, we should say, for the sake of completeness, that it may have been better for her Honour to have offered Visser less assistance with the eliciting of his evidence-in-chief. Many judges would have simply permitted Visser to give a monologue of the matters he wished to give in evidence-in-chief — perhaps asking the occasional question for the purpose of clarifying some matter that was unclear. Such a course is less likely to give rise to issues of the kind that have now been ventilated in this application. While a trial judge does have a duty to provide appropriate assistance to a party who is without legal representation, care needs to be taken to ensure that such assistance as is given does not blur the lines between the role of the judge and the role of an advocate.
We turn now to the questions the judge asked Visser during the course of his cross-examination. In short, we see no cause for any complaint by Visser. There were in fact very few actual questions asked by her Honour during Visser’s cross-examination. Her questions were no more nor less than might have been expected during the cross-examination of any witness who gave evidence of the kind given by Visser, and in the way in which he gave it. Such questions as she did ask were designed to clarify relevant matters. Other interruptions that were made by the judge were directed at ensuring that Visser understood the question that had been asked by the cross-examiner and/or ensuring that Visser answered the question that had already been asked.
We turn now to Visser’s final address. Visser made two complaints about the judge’s conduct during his final address. First, he complained that her Honour interrupted his final address. He asserted that, save in exceptional circumstances, a judge should not interrupt a final address. So much may be accepted for present purposes. However, Visser submitted that there were no exceptional circumstances present in his case that justified any interruption.
Secondly, Visser complained that upon the judge interrupting his final address, her Honour should have acceded to his application for an adjournment, so as to enable him to recast his address in a way satisfactory to her.
As we have said, as a general proposition, it may be accepted that it is, and should be, rare for a judge to interrupt a final address. However, that does not mean that a judge is not entitled (or perhaps even bound) to interrupt an address when the address strays from the area of making submissions to an attempt to give evidence from the bar table. That is what happened in the present case. There was nothing wrong with the judge interrupting Visser in order to ensure that his address was both relevant, and related to the evidence that had actually been given in the trial.
The judge had been at pains throughout the trial to explain to Visser what he could and could not legitimately do in the conduct of his own defence. This included her Honour explaining on a number of occasions the differences between openings, evidence and final addresses. Specifically, the judge explained these differences at the commencement of the trial, and again during Visser’s case, and again after Visser closed his case. For example, while Visser was still in the witness box, and apparently contemplating giving further evidence in re-examination, the following exchange between the judge and Visser occurred:
HER HONOUR: Are you ready for the jury?
VISSER:I’ll leave it to my final address, Your Honour, rather than do it from here.
HER HONOUR: No, you can’t give evidence during a final address. If you don’t give an explanation now, you can’t do it during your final address. Your final address is not another giving of evidence, you can refer to things, you can argue things but, you cannot provide any explanation. You need to do it now.
Having considered his position, Visser gave further evidence by way of re-examination on the following Monday (24 March 2014), that being the next day of the trial.
After Visser closed his case, the judge said to the jury (in Visser’s presence):
We will move, on Monday, to the final addresses. Once again, I remind you, it’s not evidence, but it is intended to pull it together and hear the arguments that each side will present about what it is they say.
Notwithstanding her Honour’s direction that it was not permissible for evidence to be given in final address, shortly after Visser commenced his address he addressed as if giving evidence rather than by reference to evidence already given. After the judge interrupted Visser during his final address to remind him (again) that he could not give evidence in his final address, Visser said:
I might ask for an adjournment and will do this on Monday. I don’t think I can do it the way ---
This request for an adjournment was made at 11:55 am on Friday, 28 March 2014. The judge sent the jury out, and then responded:
Mr Visser, I have told you a number of times about what you can and can’t do in your final address and I said to you on numerous occasions you cannot stand there and tell them what you thought, what you did, all of those things. You can tell them about the evidence and arguments that are based upon the evidence that you have given. I told you, you don’t get another go. You understand that. You are not an unintelligent man so why have you not prepared it this way?
Her Honour declined Visser’s request for an adjournment. The jury were brought back into court, and Visser’s final address continued.
During the remainder of Visser’s address, the judge interrupted on a handful of occasions. When one examines these interruptions, one can see that they were made either for the purpose of clarifying a submission that would otherwise have been opaque to the jury, or for the purpose of preventing Visser again from attempting to give evidence from the bar table.
As we have said, her Honour was entitled to take steps to ensure that Visser complied with her rulings. Further, we see nothing wrong with those interruptions that were plainly designed to assist in ensuring that the jury understood what Visser was submitting to them.
However, on at least one occasion, the judge appears to have interrupted Visser because she thought he was giving evidence rather than referring to evidence that had already been given, when in fact Visser was doing no more than saying again what he had already said in evidence. It is unsurprising that the judge may not have had at the forefront of her mind every piece of evidence that had been given in this lengthy trial. In the circumstances, it was incumbent upon Visser to at least remind the judge that he had already said in evidence what he was now saying in his final address. This, Visser did not do. No doubt, had Visser taken this course then the judge would have withdrawn her objection, apologised and permitted Visser to continue. It is too late now for Visser to make complaint about something that could easily have been remedied at trial.
As to the failure to grant an adjournment to enable Visser to recast his final address, we see no error in the judge’s refusal of that request. Her Honour was entitled to take the view that Visser well understood the limits of what he could say in his final address. The judge, as she said in her exchange with Visser during his final address, had explained what could and could not be said in a final address on a number of occasions during the trial. When one examines the whole of the transcript, one is left with little doubt that, in truth, Visser did not require any adjournment to recast or further prepare his final address.
Before leaving ground 1, two further arguments advanced by Visser in his written case, under this ground, should be dealt with (although neither of these fall within the actual terms of ground 1).
First, Visser complained that the judge, in addition to interrupting his evidence and his final address, also interrupted his cross-examination of a key witness, Federal Agent Herman. Secondly, in defence of the approach he took in his own final address, Visser contended that ‘he wanted to express himself fully and fairly to the jury’ so as to rebut ‘a degree of prejudice flowing to [Visser] from the way in which the prosecutor had addressed the jury’.
There is nothing in the first of these complaints. In support of this complaint, Visser relied upon the transcript of two pages of his cross-examination of Mr Herman. On those two pages, the judge stopped Visser from asking two irrelevant questions. Her Honour was right to do so. Correctly prohibiting a party from asking irrelevant questions cannot form a basis for a complaint about a trial judge’s lack of neutrality, or indeed form a basis for any rational complaint. The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned, or by restraining unnecessary prolonged cross-examination, is undoubted.[13]
[13]See Mooney v James [1949] VLR 22, 28 (Barry J); Kalia v The Queen (1974) 60 Cr App R 200; Kranz v The Queen (1991) 53 A Crim R 331, 340 (Ryan J, with whom Macrossan CJ and Byrne J agreed).
As to the second complaint, it is true that the prosecutor at times in his address sought to emphasise a point by reference to language that was not entirely anodyne. For example, at one point of his address, the prosecutor said of an alleged agreement:
But in relation to this agreement, as Groucho Marx famously once said, ‘there is a sanity clause in every contract’ to which Chico replied ‘there ain’t no sanity clause’.
This reference to two members of the Marx brothers was, obviously, an example of the kind of humour to which we have previously referred, and perhaps would have been better left unsaid.[14] However, neither this reference, nor anything else said by the prosecutor in his final address gave rise to a miscarriage of justice, or entitled Visser to give evidence from the bar table, and/or flout rulings that had been made by the judge.
[14]There was a similarly unnecessary reference in the prosecutor’s address to characters from the television programme ‘Hogan’s Heroes’ (to which we have previously referred), and to ‘The Book of Luke’, chapter 22, verse 61.
That said, we repeat that references and remarks of the kind set out above are not always helpful in a difficult trial upon which a great deal may depend. That is particularly true when they emanate from the prosecutor, and there is an unrepresented accused.
Finally (with respect to this ground), we should say for the sake of completeness that, in our view, the judge kept an appropriate rein on both Visser and the prosecutor, in a trial that was made no easier by the fact that Visser was unrepresented (or in modern parlance, self-represented). Specifically, her Honour was at least as astute to pick up the prosecutor, as she was Visser, whenever either of them transgressed. For example, the prosecutor was rightly admonished by the judge when, having made a relevant point in cross-examination, he asked Visser whether Visser was ‘one of those people who, as time goes by, their memory gets better’.
Ground 1 must be rejected.
Ground 9 — non-disclosure of listening device transcript
This ground complains of a failure by the Crown to serve on Visser a revised version of a transcript of a listening device recording. The recording in question was of a conversation between Barbaro and a man named Scarponi, which took place at an address in Carlton on 28 July 2008.
Both the recording and a transcript of it (dated 8 January 2009) were amongst a body of material provided to the applicant in electronic form on 8 January 2013. That material was voluminous, and included a large number of electronic recordings (and transcripts of those recordings) which did not ultimately form part of the evidence at Visser’s trial.
The transcript of the conversation in question contained a number of ‘gaps’ where it seems that parts of what had been said could not be discerned. On 20 November 2011, police prepared a revised version of the transcript, which filled in some of these gaps. In all, the revised transcript included approximately 200 additional words which had not been transcribed in the original version.
It was common ground that Visser had not been provided with a copy of the revised transcript by the Crown. Rather, he first became aware of its existence when Falanga provided a copy of it to him on 2 April 2014, the day on which the trial judge completed her charge.
At the oral hearing of this application, the Crown indicated that the reason it did not provide a copy of the revised transcript to Visser was that it did not consider that the conversation between Barbaro and Scarponi had any relevance whatsoever to the alleged conspiracy. In that regard, it pointed out that no evidence of the conversation was ultimately led by either the Crown or Visser at trial. The Crown also noted that Visser had, in any event, previously been given a copy of the audio recording.
Before this Court, Visser submitted that the Crown’s failure to disclose the revised transcript gave rise to a substantial miscarriage justice. That submission was put on the basis that the revised transcript contained material which did not appear in the original transcript, and which was directly relevant to his defence. When pressed to identify the particular material in the revised transcript upon which he relied, Visser pointed to the following passage:
Barbaro:(indistinct) … today after lunch, he reckons he’s gonna call me after — after twelve. It’ll happen mate. One way or the other it’s gonna happen, either for good (sound of tap running) or for bad. They’re gonna — they’ve done it before this way. The one I done, was lost, completely (faint) and they stole it (indistinct) … They stole it, and they brought me the whole fucking box … didn’t only bring me the fuckin’ — just the stuff … they brought me the whole fuckin — because … I had some … (indistinct) … this one (indistinct) ‘cos what happened there … (indistinct) … when I went over there, I didn’t tell nobody, I didn’t tell anybody, Carmel, not Joey my brother, didn’t tell Sam. Said I done somethin’. That little cunt that was ripping me off, he said what’s in there … I said I’m not tellin’ you. I said when you bring it home, before we open it, I will tell you what’s in there, and I will tell you where it is. I’m not tellin’ no-one ‘cos I was the only cunt that knew.
Scarponi:That’s the best way, yeah.
Barbaro:Right … so no-one knew what was in there, no-one no-one no-one no-one knew, so they had to bring it … we stole it, we brought it stolen … fuckin’ (indistinct) disaster where it was supposed to go … (indistinct) we used a piggy back, fucking disaster … they were there, it arrived at our home … (indistinct) … then they all came there, the — the bloke was talking to me … before we opened it, that’s what’s in it and that’s where it is, and that’s it … (indistinct) … the weight had to be right, and the boys who met me put some cans ‘n’ ball bearings in there, when I picked up a box, said ‘fuck I didn’t do this’ and I thought it was a tracker … (indistinct) … was fucked. And when we opened one up, it was ball bearings, full of bearings.[15]
[15]Emphasis added.
The conversation then continued:
Barbaro:I put it all with ah — new cans of tomatoes, all lined with ah carbon paper, I done it all myself, sealed it from the factory in Reggio Calabria, took it to a factory to a bloke at night time in the middle of the night, he opened the factory for us, he sealed it for us, he sealed it for us …
And that one there we used an address … here (faint) just round the corner, and that bloke didn’t order the container so he said to the jack, he said to them ‘oh shit … I didn’t order this container’, so it was off from day one. You know what I mean, he didn’t order that container, and I just used his address, just I had to get it home …
By contrast, in the original transcript which had been provided to Visser, the relevant portion reads as follows:
Barbaro:…today after lunch, he reckons he’s gonna call me after twelve it will happen mate. One way or another it will happen either for good or for bad. They have done it before this way. The one I done was lost completely, they stole it … they stole it … indistinct … that little cunt that ripped me off said whats in there … I said I’m not telling you, when you bring it home by the time we open it, I will tell you what’s in there and I will tell you where it is … I’m not telling no one cus I was the only cunt that knew.
Scarponi:That’s the best way yeah.
Barbaro:Right … so no one knew what was in there, no one no one no one no one knew so they had to bring it … we stole it we brought it stolen ... fucking disaster … piggy back fucking disaster ... then they all came there and the bloke was talking to be me before we opened that’s what’s in it and that’s where it is and that’s it … then I left .. cus the weight had to be right … put some cans with ball bearings in there when I picked up a box, I said fuck I didn’t do this and I thought it was a trap … ball bearings and they counter weighted the weight …
I put it all with the cans of tomatoes all lined with carbon paper, I done it all myself sealed it from the factory … indistinct … a bloke at the factory guy at the factory at in the middle of the night he opened the factory for us sealed it for us …
And that one there we used an address … here just around the corner and that bloke didn’t order the container and so he said to the jacks he said to the … I didn’t order this container so it was off from day one. You know what I mean cus he didn’t order that container and I just used his address I had to get it home and I told this cunt …
Visser placed particular reliance upon Barbaro’s statement that ‘I didn’t tell nobody, I didn’t tell anybody, Carmel, not Joey my brother, didn’t tell Sam’. Those words appeared in the revised, but not the original, version of the transcript. Visser submitted that the statement was corroborative of his defence that he, Visser, had not been told about the contents of the container. He claimed that, had he been in possession of the revised transcript, he would have sought to lead evidence of those statements by having both the recording and transcript placed before the jury.
For the reasons set out below, there is no substance to this ground.
First, although the original version of the transcript did not contain the specific passage to which Visser refers, it did record Barbaro saying that he was ‘not telling no one’ and that ‘no one knew what was in there’. Those references would have provided a sufficient basis for Visser to explore the argument that he now claims he would have sought to make had the revised version of the transcript been provided.
Secondly, Visser was plainly aware of the contents of the recording well before the commencement of his trial. In written submissions dated 4 November 2013, which were filed in support of an application that the trial judge disqualify herself, Visser said the following:
The reason the defendant wished to speak to Mr Scarponi was clearly bona fide. There is a recorded conversation in which Barbaro states that nobody but him actually new the contents of the container that the Crown allege was holding the object of the conspiracy, namely tomato tins full of ecstasy pills. Therefore contrary to the assertion of [the trial judge] that the conversation reflects Barbaro’s knowledge, which may also be correct, it is also capable of being direct evidence in relation to the defendant’s knowledge or more accurately lack of knowledge as a result of Barbaro not telling anyone what was the actual contents of the container. The defendant, when previously asked what his defence at trial will be, has stated he had no knowledge of the contents of the container. Therefore, on the face of it this conversation and the extension of it, which was not recorded by a listening device, could be highly relevant as, potentially, it may corroborate the defence assertion that Ms Visser [sic] had no knowledge of the contents of the container …
It is clear, therefore, that Visser was, from the outset of his trial, fully aware of the exculpatory use which he now claims could have been made of the recording. Notwithstanding that, Visser himself chose not to lead any evidence of the particular conversation in question at trial. In those circumstances, no substantial miscarriage of justice could possibly have arisen as a result of the non-disclosure of the revised transcript.
Thirdly, the exculpatory use to which Visser claims the evidence could have been put was predicated on an assumption that Barbaro’s statements to Scarponi concerned the particular drugs that were the subject of this case. However, that interpretation of the conversation between Barbaro and Scarponi was disputed by the Crown. It submitted that the conversation had nothing whatsoever to do with this particular conspiracy. Rather, it concerned a different importation of drugs, in 2005, which was the subject of a separate police investigation. Barbaro was alleged to have been involved in that importation, but Visser was not.
The Crown highlighted several statements in the recording which indicated that it was the earlier 2005 importation to which Barbaro must have been referring. This included his reference to ‘ball bearings’ having been placed in some of the tins as a counterweight, the consignment having been packed personally by Barbaro in Calabria, and the consignment having been ‘stolen’ by Barbaro and/or his associates. Each of these references were said by the Crown to be consistent with what police knew regarding the circumstances of the 2005 importation. None of those references, however, made any sense in the context of the conspiracy in this case.
Fourthly, as the Crown correctly pointed out, even assuming that the statements in question were capable of bearing the meaning attributed to them by Visser, evidence of the recording would not have been admissible as evidence of the asserted fact that Barbaro was the only person who knew what was in the container. If Visser wished to adduce evidence of that asserted fact, he would have had to call Barbaro as a witness. As we have noted previously, he was not willing to take that course.
Finally, having received a copy of the revised transcript on 2 April 2014, Visser did not take any action whatsoever to bring it to the attention of the trial judge. Although by that stage evidence in the trial had closed, had he been inclined to do so, Visser could have made an application to reopen his case. Even if there had been any substance to Visser’s complaint, his failure to raise the matter at trial is a factor which militates against the grant of leave.
It follows that ground 9 must be rejected.
Ground 8 — combination of errors
Visser contends that, even if the grounds referred to above failed individually, the aggregation of the errors identified in each of those grounds resulted in a substantial miscarriage of justice.
For the reasons set out above, there is no substance whatsoever in any of the grounds upon which Visser relies. That is so whether those grounds are viewed individually, or in terms of their combined effect. Ground 8 cannot succeed.
Conclusion on Visser’s conviction application
Visser’s application for leave to appeal against conviction must be refused.
Visser’s sentence application
Visser seeks leave to appeal against sentence on four proposed grounds. As was the case in respect of his conviction application, the proposed grounds are somewhat discursive, and difficult to comprehend. In the analysis which follows, we have set out what we understood to be the crux of Visser’s complaint under each ground.
Ground 1 — totality
The essence of Visser’s complaint under cover of ground 1 is that the sentencing judge failed to afford sufficient weight to the principle of totality. Although Visser fell to be sentenced on one charge only, the issue of totality was said to have been engaged by reason of an earlier sentence that Visser had served in New South Wales immediately prior to him being apprehended and charged for the present offending.
In its written submissions, the Crown helpfully set out the relevant chronology of events leading up to the applicant being sentenced in this case:
(a)3 April 2007: The applicant was arrested and charged in New South Wales with a number of drug offences, including supplying heroin.
(b)5 April 2007: The applicant escaped from custody from the Central Local Court in Sydney, by assuming the identity of an inmate who had been granted bail. Following his escape from custody, the applicant fled to Victoria.
(c)27 June 2007: The applicant was seen in company with Barbaro, Zirilli and D’Amico, and later that day with Barbaro, Zirilli, Karam, Higgs and Falanga. These meetings related to the container of MDMA. The applicant continued to participate in the conspiracy over the subsequent weeks and months.
(d)12 October 2007: The applicant left Australia, travelling on a false passport. He flew to Paris. He remained in Europe over the following months.
(e)14 May 2008: The applicant returned to Australia. He was arrested at Melbourne airport and extradited to New South Wales, to face the outstanding State charges for drug offences and a charge of escaping from lawful custody. He was remanded in custody.
(f)8 August 2008: Barbaro, Zirilli and other co-conspirators were arrested and charged. The applicant was subsequently interviewed about the MDMA conspiracy but was not charged.
(g)19 March 2010: The applicant was sentenced in the District Court of New South Wales on five indictable counts and one summary charge (with other offences taken into account), for the various State offences. The total effective sentence was 5 years and 8 months’ imprisonment, with a non-parole period of 4 years and 3 months. The sentence was backdated to 12 May 2008 (two days before the date of his arrest upon his return to Australia, to allow for two days in custody immediately prior to his escape).
(h)24 June 2011: The New South Wales Court of Criminal Appeal dismissed an appeal by the applicant against the sentence imposed on 19 March 2010.
(i)27 February 2012: The joint trial of Karam, Higgs, Agresta and Sergi commenced in the Supreme Court of Victoria.
(j)10 August 2012: The applicant was released on parole in New South Wales. He was immediately arrested by AFP officers and charged with the present offence.
(k) 20 August 2012: The New South Wales Local Court ordered the applicant to be extradicted to Victoria to face the present charge.
(l)16 November 2012: The Supreme Court of New South Wales dismissed the applicant’s application for review of the extradition order.
(m)20 November 2012: The applicant was extradited to Victoria.
(n)2013: Extensive pre-trial proceedings before [the trial judge in this case]
(o)5 February 2014: Trial of the applicant (and Falanga) commenced.
(p)9 April 2014: Jury returned verdicts of guilty.
(q)4 July 2014: The applicant was sentenced.
Two points should be noted in relation to these events. First, Visser was arrested for the present offences on 10 August 2012, that being the date on which he was released on parole for the New South Wales offences. The period between when he was arrested, and when he was sentenced for the present offences (4 July 2014), was taken into account by the sentencing judge by way of pre-sentence detention.[16]
[16]R v Falanga and Visser [2014] VSC 306 (King J) (‘Sentencing Remarks’) [27].
Secondly, Visser’s sentence of 5 years and 8 months’ imprisonment imposed on 19 March 2010 in respect of the New South Wales offences was completed in January 2014. In other words, he had completed that sentence some six months before he was sentenced for the present offences.
The core of Visser’s argument before this Court was that the sentencing judge made insufficient allowance for the time he had served in respect of the New South Wales offences in fixing his current sentence, given that the two sentences would have to be served ‘back-to-back’.
As this Court has said previously, the fact that a defendant has finished a term of imprisonment shortly before a sentence for different offending is to be imposed is a relevant factor for the judge sentencing the defendant in respect of the subsequent offending to take into account.[17]
[17]Tiba v The Queen [2013] VSCA 302, [37].
In this case, the sentencing judge dealt with the issue of totality at [64] of her Sentencing Remarks:
In relation to you [Visser], the one thing I have to consider after I have examined all of the materials that would determine a sentence is to then examine the sentence in light of how long you have been in custody and look and determine the issue in respect of totality. Although the sentences served in New South Wales are not in any way connected to this offending, and not only merit, but have received separate sentences for the criminality involved with them, I am obliged to consider those sentences when considering the issue of the total length of imprisonment that you should serve in relation to this offence.
Her Honour later indicated that she had reduced the sentence she would otherwise have imposed by one year to reflect the time Visser had spent in custody between 24 June 2011 (being the date that his appeal against his New South Wales sentence was dismissed) and 10 August 2012 (being the date that he was released on parole in respect of those offense).[18] Her Honour’s rationale for doing so was that the date on which Visser’s sentence appeal had been finally determined in New South Wales was the earliest time at which he could theoretically have been transferred to Victoria and charged with the present offences.[19]
[18]Sentencing Remarks [73].
[19]Ibid [22].
We can see no error in the sentencing judge’s approach. Her Honour was plainly alive to the fact that Visser had completed a lengthy term of imprisonment, in New South Wales, immediately prior to him being sentenced for the present charges. She correctly identified that as being a relevant matter to be taken into account as part of the exercise of her sentencing discretion. Moreover, it was open to her Honour to deal with that matter in the manner that she ultimately did — namely by reducing Visser’s sentence by a period of one year by reference to the earliest time at which he could have been transferred to Victoria to be charged with the present offences.
Ground 1 must be rejected.
Ground 2 — sentence was ‘crushing’ and/or manifestly excessive
Under cover of ground 2, Visser contends that the sentence imposed upon him was ‘crushing’. Though it was not specifically put that way, that argument was essentially a particular of manifest excess.
This Court has said on many occasions that a ground alleging manifest excess admits of little argument. Having regard to the sheer volume of drugs involved in this case, coupled with Visser’s extensive criminal history, it is simply impossible to see how a sentence of 11 years, and a non-parole period of 8 years, could be regarded as being wholly outside the range available, still less as ‘crushing’.
Ground 2 fails.
Ground 3 — impermissible use of prior convictions
This ground alleges that:
The judge used prior convictions to justify a higher sentence than the offence called for and by doing so would be to impose [sic] a fresh penalty for past offences.
The ground is entirely devoid of merit. Her Honour had regard to Visser’s previous offending, in an entirely orthodox way, in assessing his antecedents, character and prospects of rehabilitation, and the need for specific deterrence. She expressly noted that Visser was ‘not to be punished again’ in respect of his prior offending.[20]
[20]Ibid [60].
Ground 3 must also fail.
Ground 4 — parity with Sergi
Visser complains that there was unjustifiable disparity between his sentence and that imposed on Sergi. As we have previously noted, Sergi, along with a number of the other conspirators, was tried separately for his involvement in the conspiracy. He was sentenced by her Honour on 30 April 2013 to 10 years’ imprisonment with a non-parole period of 6 years and 9 months.
Visser’s primary argument in support of this ground focussed upon her Honour’s observation that Visser and Sergi’s involvement in the conspiracy was ‘at the same level’. In light of that finding, Visser contends that there was no basis for him having received an extra year in terms of his total effective sentence, and an extra 15 months in respect of his non-parole period.
The simple answer to this ground is that her Honour found that there were a number of significant differences between Visser’s and Sergi’s respective character, antecedents, personal history and prospects of rehabilitation. Those differences were summarised by the Crown as follows:
In sentencing Sergi, her Honour found that he had no prior convictions, a good work history, and a supportive family, which led her Honour to conclude that he had ‘reasonably good’ prospects of rehabilitation. Her Honour also found that he had a number of health problems. Her Honour made no finding about the need for specific deterrence in relation to Sergi. By contrast, her Honour found that the applicant was a ‘career criminal’, in that he had been ‘involved with the criminal law for lengthy periods between the age 30 and [Visser’s] current age of 63’; her Honour also observed that the offending with which [Visser] had been involved ‘has been serious and of a high level’. After also noting that [Visser] was an ‘escapee at the time of offending’, her Honour said … ‘All of which helps lead me to the conclusion that you have exceedingly poor prospects of rehabilitation.’
Once again, we see no error in her Honour’s approach. Each of her Honour’s findings was plainly open, and provided a sufficient justification for the relatively modest disparity in the sentences that she imposed.
Ground 4 is rejected.
Conclusion on Visser’s leave to appeal against sentence
For the reasons set out above, Visser’s application for leave to appeal against sentence must be refused.
Falanga’s conviction application
The sole ground in support of the application for leave to appeal against conviction asserts that the judge erred in failing to direct the jury that, in order to find the applicant guilty, ‘it would not be sufficient if they were only satisfied that he knew or was aware that there was some drug or some drug-related substance inside the container’.
There is, in our view, no substance in this ground.
In our estimation, the judge’s approach to the necessary directions on the elements of the offence were thoughtful and careful. Not only did she give conventional oral directions in the Charge as to the elements of the offence, but she provided the jury with a document entitled ‘Written Directions to the Jury as to Elements of the Crime Charged’ (marked as Exhibit 27), and another document entitled ‘Decision Tree’ (Exhibit 28). The contents of these documents complemented her Honour’s impeccable oral directions.
It will be remembered that Falanga claimed that throughout the relevant period he believed that the contents of the container were illegally imported tobacco, not MDMA. He gave evidence that when he questioned Zirilli about what was in the container, Zirilli told him that it contained tobacco. No matter what might be said of the adequacy of the judge’s directions, it is plain from the jury’s verdict that they must have rejected Falanga’s evidence on this aspect.
After the judge had commenced her Charge, counsel for Falanga made a ‘pre-emptive’ submission seeking a direction that, ‘it is not enough that the prosecution prove that it was an intention to agree to possess some drug or any drug or some drug-related substance on the basis that not all drugs are border controlled drugs’. The ensuing discussion contains the following exchange:[21]
DEFENCE COUNSEL: But in my submission, there is a risk that the information and the directions that are before the jury at the moment, the jury would think this was a decision between was it an agreement for tobacco or was it an agreement for a border controlled drug, and it be one or are [sic] the other, and in my submission
HER HONOUR: That is what the evidence discloses. There is nothing else disclosed by any evidence.
DEFENCE COUNSEL: Can I make one point by way of an exception. Shortly prior to the break, I think Your Honour made the statement that it is for the Crown to prove that this was not an agreement to possess tobacco, and whilst I accept that that is correct as a statement, in my submission, that fact alone is not sufficient.
HER HONOUR: That is the evidence that your client has given. That is what the Crown has to disprove, not something that comes from nowhere, [defence counsel]. I am, I would describe it as, bending over backwards to make sure the jury don’t say, ‘This is a [choice] between these two’. The Crown have to disprove the evidence that has been given. That is what they have to do. There has been no evidence given about this being pseudoephedrine or, ‘I thought we [were] importing a harmless salt’, or something. It is just confusing the jury and that is the one thing I don’t have to do any more, in my view. I’m certainly not persuaded that that’s appropriate.
[21]Emphasis added.
The primary submission in this Court was that the directions ultimately given by the trial judge ‘failed to acknowledge or account for a middle ground that the jury could arrive at on the evidence in the trial’. That ‘middle ground’, as it was described, contemplated that the jury might reject the evidence of the applicant that he believed that it was tobacco inside the container, and be satisfied on all of the other evidence that the applicant ‘must have had an awareness that it was a substance related to drugs and drug trafficking inside the container’, yet not be satisfied that he ‘knew or was aware that it was a border controlled drug’. This is, with respect, an unrealistic submission.
True it is that the mere rejection of the applicant’s evidence by the jury could not establish that the opposite of what he had asserted was true. Mere rejection of his evidence could not establish that the applicant knew that the contents of the container was a border controlled drug. If the applicant’s evidence was disbelieved, his knowledge that the container held a border controlled drug in a commercial quantity still needed to be proven inferentially on all of the circumstantial evidence in the prosecution case. At no time in the trial, however, was there ever any suggestion by the defence that any ‘middle ground’ was open on the evidence.
In our opinion, the judge repeatedly — and correctly — emphasised in her directions to the jury that before they could convict they needed to be satisfied that Falanga and Visser knew that what the conspirators were attempting to possess was a border controlled drug (as opposed to some other substance and thing). Thus, for example, the judge said:
The Crown must, of course, prove beyond reasonable doubt in the case of each accused man that he knew when he entered into the agreement that he was agreeing to obtain possession of a border controlled drug. If the Crown fail to prove that, then they fail to prove that the accused has entered into the named conspiracy within the indictment, as this element of the offence that he is accused of conspiring to commit would not have been proven. If the Crown cannot prove the accused entered into an agreement, knowing that what was going to be possessed was going to be a border controlled drug, then they fail to prove the accused that you are considering has entered into the particular agreement that they must prove.
Further, they have to prove that the quantity that was going to be possessed was a border controlled drug of a commercial quantity.
Shortly following these directions, the judge gave some examples of certain drugs that are prescribed to be border controlled drugs, and informed the jury of their respective commercial quantities, and directed the jury:[22]
As I said, the Crown must prove beyond reasonable doubt in the case of each accused that he knew that what they were agreeing to possess was not only a border controlled drug, but a border controlled drug in a commercial quantity. If the Crown fail to prove that, then they have failed to prove that the accused has entered into the named conspiracy, as this element of the offence they are accused of conspiring to commit would not have been proven beyond a reasonable doubt and you cannot have the failure of an element.
Now, like counsel, I have used the specific words of the legislation to indicate what it is the accused must be agreeing to, which is the obtaining possession of a border controlled drug in a commercial quantity, and I wondered if in fact I was confusing you because that doesn’t mean that is what they have to discuss or know, those particular terms. It is a matter for you if you are satisfied that what it is that they know fits in with the definition of a border controlled drug in a commercial quantity, and that’s why I gave you the quantities of the different border controlled drugs in the commercial quantity level. All illicit drugs are border controlled drugs such that you would expect to be. All of them, the ones I have given you, cannabis, heroin, speed, ecstasy. It goes down a very long list. I haven’t read you the whole of the list because it is written in a wonderfully scientific language, such as the 3, 4 Methyldioxy, et cetera, and I’m not going to try and do all of that, but it includes the illicit drugs. They are border controlled drugs. They are not entitled to bring them into the country. So you would not be expecting that an accused person or anyone involved in a conspiracy of this nature would sit around and say, ‘Look, I'm going to bring in some border controlled drug in a commercial quantity. Do you want to have an involvement?’ That’s not what has to happen. They don’t have to turn their mind to that and say, ‘Well, in relation to this, they have used the exact terms.’
[22]Emphasis added.
Directions emphasising the need for the jury to find that the applicant knew that the container held a border controlled drug — and not some other substance or thing — were repeated in other parts of the Charge, and were to be found in the Written Directions to the Jury as to the Elements of the Crime Charged and the Decision Tree. By way of example, the Decision Tree instructed the jury that they had to consider the elements of the offence of possession of a border controlled drug as outlined in the written directions, and directed that —
… it would not be sufficient to prove that there was an agreement to possess the tomatoes in the container, or an agreement to possess the container alone, and not its contents. If it was a conspiracy for any other objective or purpose, such as, attempting to possess diamonds or a conspiracy to evade excise duty that was payable on imported goods, or a conspiracy to possess tomatoes, it would not be sufficient. It must be an agreement to possess a border controlled drug in a commercial quantity. This is a question that requires only one decision, which is applicable in the case of both of the accused men.
Furthermore, when summarising Falanga’s case as put by his counsel, the judge summarised its central theme:
The circumstances of this case are entirely consistent with what would be the reality of an illegal importation of tobacco. That means, he submitted, that there is a another reasonable explanation consistent with the facts and consistent with Mr Falanga not being guilty of conspiring to possess a border controlled drug in a commercial quantity. …
At no stage in his address to the jury did counsel for Falanga ever suggest that there was some ‘middle ground’ realistically open on the evidence. The trial was fought as an ‘all or nothing’ contest. In some circumstances, that might not relieve the judge of putting an alternative view that properly was open on the evidence, but, in the circumstances of this case, it would have been wholly unrealistic for the judge to have advanced the middle ground contended for.
In this Court, counsel sought to derive some support for his submissions from a question asked by the jury on the second day of deliberations. The jury’s question, the judge’s answer and the response of counsel were as follows:
HER HONOUR: Mr Foreman, ladies and gentlemen, I understand you have a question.
FOREMAN:We do.
HER HONOUR: Short answer, no. But let me just read the question out: ‘We note that the decision tree documents does not (sic.) specifically refer to MDMA but only a general reference to border-controlled drug. Do we have to satisfy ourselves that the accused agreed to conspire to import MDMA specifically rather than the general term border-controlled drug?’
As I said, no, you don’t have to be satisfied that it MDMA.
There is no disagreement with that, is there?
PROSECUTOR: No.
HER HONOUR: The High Court has made a decision in respect of it. Do you want to argue against it, [defence counsel]?
DEFENCE COUNSEL: No.
HER HONOUR: What you do have to be satisfied of is that it was a conspiracy and it is not to import, first of all, it is to obtain, all right. It is not about the bringing into the country, it is obtaining the contents. So the offence that is charged is that it is a conspiracy to obtain possession of a border-controlled drug in a commercial quantity. The offence is not MDMA. That is what in fact was in the container, right, million tablets containing MDMA. That is a border-controlled drug. But you do not have to satisfy yourselves that that is what they agreed to take possession of, but you do have to satisfy yourselves that they agreed to assist or conspire to help in obtaining a border-controlled drug in a commercial quantity. Does that answer it? Anything?
COUNSEL:No, Your Honour.
HER HONOUR: Mr Visser, anything you want to say?
ACCUSED VISSER: No.
HER HONOUR: Does that cover what it is that you need to know?
FOREMAN: We believe so.
Counsel took no exception to the further direction given in answer to the jury question, that direction being, in our view, in accordance with authority.[23] The trial was conducted under the Jury Directions Act 2013. Had counsel considered that the evidence raised as a real issue the so-described ‘middle ground’, and that the judge was required to direct on that issue, it was incumbent on counsel to press for directions.[24] He did not do so. Some assessment of the lack of merit attending the contention that the judge should have directed on the middle ground may be made from the fact that counsel did not ask for the direction now said to be necessary.
[23]Weng v The Queen (2013) 279 FLR 119, 139 [74]; Nelson (a Pseudonym) v DPP [2014] VSCA 217.
[24]Xypolitos v The Queen [2014] VSCA 339, [32] (Redlich, Tate and Priest JJA).
We should observe that, even were we of the opinion that the mooted direction should have been given, we would still refuse leave to appeal, since, once the jury rejected the applicant’s evidence, given the weight of the evidence in the prosecution case, conviction was inevitable.[25]
[25]Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659.
Falanga’s application for leave to appeal against conviction must be refused.
Falanga’s sentence application
With respect to sentence, Falanga seeks to agitate two main complaints. First, he claims that the judge imposed a manifestly excessive sentence, in that she ‘failed to give sufficient weight to the principle of totality’ with respect to the sentence passed upon him in South Australia. Secondly, it is asserted that the judge erred ‘by imposing a sentence that offends the parity principle with respect to the sentence imposed on Saverio Zirilli’.
Given certain conditions impinging upon their custody imposed by interstate courts, Falanga and Visser were tried separately from their co-offenders. As a result, by the time that she came to sentence Falanga and Visser, the trial judge had already sentenced their co-conspirators, Pasquale Barbaro, Saverio Zirilli, Rob Karam, John Higgs, Salvatore Agresta and Pasquale Sergi. Barbaro and Zirilli had both pleaded guilty; and, following a trial, in May 2012 a jury convicted Karam, Higgs, Agresta and Sergi.
Importantly, the judge assessed Falanga’s role as that of ‘financier’, and found that his role was at the ‘higher end’ of the organisation. Her Honour said:
Having now heard the additional material which has been presented in this trial, particularly in relation to you, Falanga, I no longer accept that you were a person who was equal in terms of criminality with that of Barbaro or even equal to that of Zirilli, but I do find that your level within the organisation is closest to Zirilli. Your role was at the higher end of this organisation, but I do not accept you were on the same terms or level of organisational command as Barbaro or even as Zirilli. I do accept that, although you were a financier in relation to this offending, your level of knowledge and involvement in the overall organisation was not as high as Barbaro, who was the acknowledged leader of this group in Australia, and was very slightly below that of Zirilli. There was no evidence before me that Zirilli had any actually financial role in the purchasing or payment for the MDMA, and whilst I may suspect that he had some, that is not good enough. The evidence is clear that it was you and Barbaro who were being held responsible for the payment of the failed attempt to obtain these drugs.[26]
[26]Sentencing Remarks [5].
Barbaro pleaded guilty to conspiracy to traffick in a commercial quantity of MDMA; trafficking in a commercial quantity of MDMA; and attempting to possess a commercial quantity of a border controlled drug, cocaine. He was sentenced to be imprisoned for life, with a non-parole period of 30 years. Zirilli pleaded guilty to conspiracy to traffick in a commercial quantity of MDMA; trafficking in a commercial quantity of MDMA; and aiding and abetting an attempt to possess a commercial quantity of a border controlled drug, cocaine. His total effective sentence was 26 years’ imprisonment, upon which a non-parole period of 18 years was fixed. For the charge of conspiracy to traffick the same commercial quantity of MDMA relevant to the charge against Falanga and Visser, Zirilli received an individual sentence of 20 years’ imprisonment.
Although the judge found that Falanga’s position in the hierarchy was close to Zirilli’s, in our opinion there were sound reasons for the judge imposing a different sentence on Falanga than on Zirilli. First, and most significantly, Zirilli had pleaded guilty, and was entitled to an amelioration of sentence as a result. Secondly, unlike Zirilli, Falanga’s offending occurred whilst he was on bail for other offences. Thirdly, unlike Zirilli, Falanga had some prior convictions. In light of these features, it is impossible to say that there is unacceptable disparity between the sentences passed on Falanga and Zirilli.
As to totality, it is to be observed that Falanga was arrested for the instant offence on 8 August 2008, and was released on bail on 21 August 2008. Whilst on bail, he committed a series of offences in South Australia. Relevantly, on 20 February 2008 (that is, prior to his arrest for the present offence), police intercepted a vehicle driven by one of Falanga’s employees and found a .45 calibre pistol (and ammunition) and a .22 calibre handgun. Falanga was arrested with respect to possession of those firearms on 8 May 2009. Later, on 20 July 2010, police searched premises in Newport, South Australia, and located a fully automatic submachine gun and a .357 Smith & Wesson revolver, together with ammunition for each of those weapons. On 15 August 2010, Falanga was arrested and charged with firearms offences, together with drug offences relating to the unlawful manufacture of methamphetamine at two different laboratories in two separate locations. He was refused bail and remanded in custody.
On 5 November 2010, however, Falanga was released on ‘home detention’ bail. Part of his bail conditions required him to reside in a shed at the rear of his parents’ home in Woodville Park. On 14 July 2011, police officers attempted to enter the shed, in which Falanga had CCTV cameras installed. Falanga refused the police access, and discharged four rounds from a .38 calibre handgun. Upon gaining entry to the shed, police located glassware and chemicals associated with the manufacture of methamphetamine. Falanga was charged and remanded in custody for that offending.
Having pleaded guilty in the District Court in Adelaide to possessing the machine gun, the Smith & Wesson revolver and another firearm; to two charges of manufacturing a controlled drug for sale; to creating a risk of serious harm; and to unlawful possession of illicit drugs; on 30 August 2012, Falanga was sentenced to a total effective sentence of nine years’ imprisonment, upon which the sentencing judge fixed a non-parole period of four years and six months, backdated to 14 July 2011 (that is, the day of his last arrest).
Falanga, by agreement, was transferred from South Australia to Victoria on 10 September 2013 pursuant to a combination of the Prisoners (Interstate Transfer) Act 1982 (SA), the Prisoners (Interstate Transfer) Act 1983 (Vic) and the Transfer of Prisoners Act 1983 (Cth). The practical consequence is that from the time of Falanga’s arrival in Victoria, the sentence of imprisonment imposed upon him in South Australia (and not yet completed) ceased to have effect in South Australia, and was deemed to have been imposed in Victoria. Thus, at the time of being sentenced for the present offence, Falanga’s earliest possible date of release on parole was 13 January 2016.
The judge turned her mind to totality, and in her sentencing remarks observed:
Falanga, whilst the offences you have committed in South Australia are offences that would normally be expected to be served cumulatively on any other sentence on the basis that they were committed whilst you were on bail, I need again to consider the issue of totality and ensure that the sentence I impose upon you is not a crushing sentence, though that there [sic] may mean there will be a need for some concurrency with the unrelated South Australian offences which you are now serving as a sentence of imprisonment within the Victorian prison system.[27]
[27]Ibid [65].
Her Honour noted that, by virtue of s 19AJ of the Crimes Act 1914 (Cth), she was not permitted to fix a new global non-parole period for all of the offending, state and federal. Ultimately, the allowance that the judge made for totality is reflected in the following remarks:
I sentence you, Carmelo Falanga, to be imprisoned for a term of 23 years. You are currently undergoing a sentence of nine years with a minimum of four years and six months, which commenced on 14 July 2011, of which you have served ten days short of three years. I intend that your sentence for the offending is to be served concurrently with that sentence after the expiration of a further six months. I therefore direct that the sentence of 23 years is to commence on 14 December 2014, which would leave one year of your non-parole period to be served concurrently with the sentence imposed today. I direct that you are to serve a period of 16 years and six months before becoming eligible for parole. …
[T]he commencement of your minimum non-parole period of 16 years and six months will also be 14 December 2014.[28]
[28]Ibid [70]–[71].
Thus, the judge made orders which resulted, in practical effect, in the federal sentence that she imposed running concurrently with the state offences, save as to three and a half years of the head sentence, and one year of the non-parole period. We detect no error in her Honour’s approach.
It will be remembered that Falanaga, who is now aged 50 years, committed the present offence whist on bail for other serious offences. He did not have the moderating effects on sentence of a plea of guilty. Indeed, the judge found that Falanga had a total lack of remorse for his offending, and that his prospects of rehabilitation are ‘limited’.[29]
[29]Ibid [52].
It cannot be ignored that 15 million tablets, containing 1.4 tonnes of pure MDMA, were seized. The profits that Falanga anticipated that he would realise from the drugs was massive, and would have run to hundreds of millions of dollars. Falanga played a cynical criminal game for high stakes and lost. In our view, the sentence imposed upon him is well within the range of those open on the proper exercise of discretion, and neither the principle of parity, nor that of totality, has been infringed.
Falanga’s application for leave to appeal against sentence must be refused.
Conclusion
Visser’s and Falanga’s applications for leave to appeal against their convictions and sentences must be refused.'
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