Wilson v R - [2019] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wilson v R [2019] NSWCCA 38
Hearing dates: 27 August 2018
Date of orders: 27 February 2019
Decision date: 27 February 2019
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Button J at [382]
Decision:
(1) The application by the appellant to call fresh evidence is refused.

(2) Leave is granted to the appellant to file the appeal out of time.

(3) Leave to appeal is granted.
(4) The appeal is dismissed.
Catchwords:
CRIMINAL LAW – conviction appeal – extension of time – whether verdict unreasonable or not available on the evidence – inconsistent verdicts – admissibility of evidence of surveillance recordings – obligation to present material evidence – failure to raise issues at trial – discharge of jury on prejudicial event – fairness of Crown submissions – fairness or appropriateness of summing-up and jury directions – evidence of bad character – fresh evidence – perversion of the course of justice – conduct of Crown in submissions – extension of time granted – appeal dismissed
CRIMINAL LAW – sentencing appeal – role of appellant – totality – parity – extension of time granted – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)
Listening and Surveillance Devices Act 1972 (SA)
Surveillance Devices Act 2007 (NSW)
Cases Cited: Aouad v The Queen (2011) 207 A Crim R 411; [2011] NSWCCA 61
ARS v R [2011] NSWCCA 266
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Curran v R [2017] NSWCCA 123
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Flood-Smith v R [2018] NSWCCA 103
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Giourtalis v R [2013] NSWCCA 216
Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321
Hughes v R [2018] NSWCCA 2
Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Masri v R [2015] NSWCCA 243
Maxwell v The Queen (1996) 184 CLR 501
Obeid v R [2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Abusafiah (1991) 24 NSWLR 531
R v AZ [2018] NSWCCA 294
R v Bartle [2003] NSWCCA 329
R v Chan (2002) 131 A Crim R 66; [2002] NSWCCA 217
R v Clements (1993) 68 A Crim R 167
R v Orton [1922] VLR 469
R v Trudgeon (1988) 39 A Crim R 252
R v Wilson [2005] NSWCCA 219
R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
Stanford v R [2018] NSWCCA 249
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Why v R [2017] NSWCCA 101
Zoneff v R (2000) 200 CLR 234; [2000] HCA 28
Category: Principal judgment
Parties: John Michael Wilson (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam and D New (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2008/110792
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 August 2011; 13 April 2012

Before:

King SC DCJ

File Number(s):

2008/110792

TABLE OF CONTENTS

EXTENSION OF TIME - paragraph 8

FRESH EVIDENCE - paragraph 13

THE GROUNDS OF APPEAL - paragraph 16

THE CONVICTION APPEAL

The Trial - paragraph 17
Outline of the Crown Case at trial - paragraph 20
The appellant’s case at trial - paragraph 43
Overview of the trial judge’s summing-up - paragraph 44
Ground 1: The trial miscarried because “the appellant suffered undue influence to give evidence when he was unfit to do so” - paragraph 46
Ground 2: The verdict resulted in a miscarriage of justice or is unreasonable or cannot be supported by the evidence and by reason of the inability of the evidence to exclude rational hypotheses consistent with innocence - paragraph 56
Verdict: unreasonable or not available on evidence - paragraph 58
The “bricks inside” - paragraph 69
Inconsistent verdicts - paragraph 83
Alternative hypothesis - paragraph 86

Ground 2(b): The trial miscarried because the transcripts exhibits 48A and 48B were “incomplete and misleading”. - paragraph 118
Ground 2(d): Relevance of recording of conversation on 10 March 2018 at the Novotel Hotel - paragraph 121
Ground 2(h): Exhibit 251 - Audio of 13-14 March 2008 at the premises - paragraph 126
Admission of evidence of a “hard drive” - paragraph 127
Error in admitting the opinion evidence of Federal Agent Thomson and failure to direct jury regarding that opinion evidence - paragraph 136

Ground 3(c): Failure of the Crown to present material evidence - paragraph 143
Ground 4: The trial miscarried because the judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice - paragraph 160
Incident on 16 June 2011 - paragraph 163
Incident on 19 July 2011 - paragraph 168
Relevant Principles - paragraph 171
Conclusion regarding ground 4 - paragraph 176

Ground 5: The trial miscarried by reason of the Crown’s closing address - paragraph 182
Ground 6: The trial miscarried because directions to the jury were understated and in error and failed to give the defence case the same consideration that was given to the Crown - paragraph 187
Ground 7(a): His Honour erred in failing to allocate evidence to each conspirator therefore causing a miscarriage of justice
Ground 7(b): His Honour erred in failing to give a clear separation of evidence - paragraph 199
Ground 9: A miscarriage of justice was occasioned as a result of the failure to direct the jury that it had to be satisfied that:
(a) the Crown had proved a single conspiracy alleged and not separate conspiracies relating to the June/July, December/January and the March importations; and
(b) the named co-conspirators and the appellant were each party to a single conspiracy spanning all 3 imports - paragraph 206
Ground 10: The trial miscarried because the Crown presented a conspiracy charge when the substantive [offence] was available - paragraph 210
Ground 12: The trial miscarried by reason of the failure of the circumstantial evidence to prove beyond reasonable doubt that the appellant had the requisite knowledge of the conspiracy and his Honour’s failure to sufficiently direct the jury as to the law relating to knowledge - paragraph 219
Ground 14: His Honour erred in failing to direct the jury as to any alternate hypotheses to the Crown’s hypotheses, that the reference to “brick inside”; being a reference to the appellant having knowledge of the heroin secreted in three items of furniture, was the only inference open to the jury upon the evidence - paragraph 224
Ground 15: Failure of the trial judge to direct evidence of mistake needed to be rebutted by Crown - paragraph 229
Ground 16: The trial judge erred in admitting evidence of the appellant’s alleged involvement in the two previous importations as “relationship evidence” - paragraph 232
Ground 17: The trial miscarried because evidence of the appellant’s bad character was admitted - paragraph 248
(a) Evidence of Prior Imports - paragraph 249
(b) Previous smuggling operation - paragraph 252
(c) Comments on news report relating to cocaine bust - paragraph 255
(d) Mr David Wilson’s cut-throat defence - paragraph 262
(e) Evidence as to multiple wives - paragraph 263

Ground 18: Failure of the trial judge to direct jury as to favourable evidence given by Mr Xavier which supported the appellant’s defence - paragraph 267
Ground 19: A miscarriage of justice resulted from the absence at the trial of fresh evidence
Ground 19(c): Supplementary fresh evidence – Unsigned statement of “Moch Yusuf Pujiono” dated 28 November 2008/13 January 2009
Ground 3(b): Failure of the Crown to call material witnesses - paragraph 272
Mr Yusuf Pujiono - paragraph 275
Mr Rick Lee - paragraph 284
Federal Agent Thomson - paragraph 289
Other issues regarding evidence - paragraph 291

Grounds 19(a) and (b): Supplementary fresh evidence referring to ‘bricks’ - paragraph 295
Ground 20: The trial was tainted due to the conviction of Mr Mark Standen for conspiracy to pervert the course of justice and import of pseudoephedrine - paragraph 299
Ground 21: The trial miscarried because of the conduct of Crown and trial judge - paragraph 301
Ground 21(a): Error in summing-up - paragraph 337
Conclusion regarding conviction appeal - paragraph 346

SENTENCE APPEAL - paragraph 349

Role of the appellant - paragraph 351
Totality - paragraph 363
Parity - paragraph 371
Conclusion regarding sentencing appeal - paragraph 380

ORDERS - paragraph 381

Judgment

HOEBEN CJ AT CL: I agree with the judgment of Walton J and the orders which he proposes.
WALTON J: John Michael Wilson (“the appellant”) was tried, together with David Kevin Wilson, the appellant’s brother (“Mr David Wilson”), and Jose Manuel Xavier (“Mr Xavier”), before King SC DCJ and a jury at the Sydney District Court on 1 count of an offence under ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) (“the Code”) expressed in an indictment in the following terms:

Between about 1 February 2008 and about 21 March 2008, at Sydney in New South Wales and elsewhere, did conspire with each other and Gregory William Jones and David Wren and divers others, to import a substance, the substance being a border controlled drug, namely, heroin, and the quantity being a commercial quantity.

On 9 August 2011, the appellant was found guilty by a jury of that offence. The jury also convicted Mr Xavier but was unable to reach a unanimous verdict with respect to Mr David Wilson who was discharged on the same date.
Following the appellant’s trial, he entered a plea of guilty to an offence under s 400.4(1) of the Code, with respect to the following charge:

Between about 10 March 2008 and about 20 March 2008, at Sydney in New South Wales, did deal with money the value of which was greater than $100,000 and that he believed to be the proceeds of crime.

As to the sentences for the particular offences, his Honour imposed a term of imprisonment of 20 years for the offence of conspiracy to import a commercial quantity of a border controlled drug, namely, heroin, and 5 years for the proceeds of crime offence.
His Honour King SC DCJ sentenced the appellant on 13 April 2012 to a total term of imprisonment of 23 years, commencing 20 March 2008 and expiring on 19 March 2031. His Honour set a single non-parole period of 15 years expiring on 19 March 2023.
The appellant brought his appeal against conviction on 22 grounds of appeal which were said, without delineation, to be available pursuant to s 5(1)(a) and (b) of the Criminal Appeal Act 1912 (NSW). The appellant also sought leave to appeal against the severity of his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. The appellant sought that the appeal be upheld and that the Court’s convictions quashed upon the broad bases that:

first, the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence;

secondly, “the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law”; and

thirdly, that “on any other ground whatsoever there was a miscarriage of justice” (see s 6(1) of the Criminal Appeal Act).

(Other particular bases are found in the grounds of appeal as outlined and discussed below).

EXTENSION OF TIME

The appellant’s appeal is out of time and requires an extension of time to appeal. The Crown opposed the grant of an extension of time.
The notice of appeal was filed on 14 February 2018, almost six years after the sentencing of the appellant. A notice of intention to appeal was lodged following the appellant’s conviction and a notice of application for extension of time for notice of appeal or notice for application of leave to appeal was filed on 24 October 2012 extending the notice of intention to appeal to 24 December 2012. The notice of intention to appeal was then extended on a number of occasions until 15 September 2015. On 14 September 2015, the Registrar declined to grant a further extension. The appellant was advised that he may lodge an appeal but an extension of time would need to be sought. It follows that, if allowance is made for earlier extensions, the notice of appeal was almost two and a half years out of time.
In disputing the extension of time, the Crown provided a summary as to the essence of the appellant’s submission as to why an extension of time should be granted, principally derived from an unsworn affidavit dated 1 August 2016. That summary is a fair representation of the arguments advanced by the appellant and, in substance, is extracted below:

He gave notice of his intention to appeal within the required timeframe.

He waited 17 months for a “no merit” assessment to be completed by Legal Aid.

A local barrister was approached to deal with his appeal on a pro bono basis but after 13 months the barrister informed him that his case was difficult and that he would not have time to prepare the appeal.

The appellant therefore applied for the transcript and endeavoured to investigate his own appeal grounds, which required him to “study basic legal knowledge”.

The appellant’s ability to prepare his appeal in a timely fashion was impeded by the fact that he is “bi-polar 1”.

The availability of material to investigate appeal grounds and computer time was limited and the appellant’s computer time was restricted. Prior to 2016, he had no computer access at all.

His most difficult obstacle was to carry out international investigations into his defence.

He had regularly applied for extensions of his Notice of Intention to Appeal throughout the period when he was preparing his appeal.

The Crown submissions in opposing the extension of time were as follows:

The appellant’s reasons for delay relate to matters prior to 2016 and do not address events since that time.

There is no evidence before the Court to explain the appellant’s reasons for filing his notice of appeal and supporting grounds on 14 February 2018.

The prospects of success are poor.

Legal Aid has assessed the appellant’s appeal as being without merit and the appellant has received additional advice to the effect that his case is “difficult”.

The effluxion of time would make a retrial difficult in terms of both witness availability and ability to recall events, which relate to offending that occurred in excess of 10 years ago.

The interests of justice dictate that leave should not be granted to the appellant to file a notice of appeal well out of time.

Having regard to the reliance by the Crown upon the prospects of success of the appeal and the broad consideration of the “interests of justice”, the determination of the extension of time application can await consideration of the grounds of appeal.

FRESH EVIDENCE

Before turning to those grounds, it should be noted that the appellant sought to introduce fresh evidence on the appeal. The appellant was asked at the hearing of the appeal to identify the fresh evidence he wished to rely upon. He identified the evidence (in various forms) of the following persons:

Mr Yusuf Pujiono;

Federal Agent Stephan Cook;

The appellant’s wife, Mrs Elly Feriatissa Praesetyowati and his daughter;

Federal Agent David Thompson;

Mr Rick Lee.

That application was refused after hearing argument at the outset of the hearing of the appeal on 27 August 2018 (although the Crown accepted that Mr Lee’s evidence was uncontroversial and, in that respect, the content of his evidence has been taken into account in this appeal).
The reasons for rejecting the application for fresh evidence (save for Mr Lee) are partially reflected in the rulings of the presiding judge, Hoeben CJ at CL, at the hearing and more substantially so in the following discussion as to fresh evidence with respect to Ground 19 of the appeal.

THE GROUNDS OF APPEAL

The 22 grounds of appeal were as follows:

Ground 1: The trial miscarried because the appellant suffered undue influence to give evidence when he was unfit to do so.

Ground 2: The verdict resulted in a miscarriage of justice or is unreasonable or cannot be supported by the evidence and by reason of the inability of the evidence to exclude rational hypotheses consistent with innocence. In written submissions, the appellant made submissions challenging the reliance by the Crown at trial on various aspects of the evidence. The Crown rightly treated these as subsidiary grounds to ground 2. That subject matter, as entitled by the appellant, appears below (except where an additional reference is made to clearly identify the designation given to an exhibit):

“Exhibit 40 Star City 21st February 2008”;

“Exhibit 48A, 48B and Highlight CD 8 Star City Casino 24th February 2008 room 1159”;

“Exhibit Star City – Room 1159 – 24th February 2008 HI disk and DVD 29” (exhibit 49);

“Phone call Exhibit Novotel 10 March 2008” (exhibit 124);

“Exhibit DVD 18 Star City… room 702… DVD 18… 10 March 2008” (exhibit 126);

“Exhibit 134… Time 12:33 DVD 61th (sic) March 2008… Novotel… Greg Jones… John Wilson (the appellant)”;

“Exhibit 12:03:08… Greg Jones and John Wilson (appellant) GYMEA/MAGAZINE 099507)” (the submissions went to exhibit 149);

“Hard Drive: Exhibit 251 – Transcript Stonehouse Avenue 2245-2300 13th March 2008 Costless, including the judgment of Judge King 24-05-2011”. Ground 2(h) was expanded upon as follows:

“(a) His Honour erred in admitting the evidence of a hard drive said to have been recorded on a tracking device”;

“(b) His Honour erred in admitting the opinion evidence of Federal Agent Thomson”; and

“(c) His Honour erred in failing to direct the jury regarding how they should approach the opinion evidence of Agent Thomson”.

Ground 3: The verdict is unreasonable or cannot be supported by the evidence by reason of:

the inability on the evidence to exclude a rational hypothesis consistent with innocence;

the failure to present material evidence; and

the failure of the Crown to present material evidence.

Ground 4: The trial miscarried because the judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice.

Ground 5: The trial miscarried by reason of the Crown’s closing address to the jury; in that it contained mistakes of fact; and that the jury were misled by the evidence; and the failure of the evidence to dispel a rational hypothesis with innocence.

Ground 6: The trial miscarried because his Honour’s directions to the jury were understated and in error and failed to give the case of the defence the same consideration that he gave to the Crowns case.

Ground 7:

His Honour erred in failing to allocate evidence to each conspirator therefore causing a miscarriage of justice.

His Honour erred in failing to give a clear separation of evidence.

Ground 8:

The appellant contends that the evidence was incapable of establishing, against the appellant, the conspiracy alleged by the Crown.

The appellant contends that the evidence failed to establish [to] the requisite standard the existence of a single conspiracy charged, as opposed to three separate conspiracies, one relating to the June 2007 importation, one relating to the December 2007 importation and one relating to the March 2008 importation (target heroin container).

Ground 9: A miscarriage of justice was occasioned as a result of the failure to direct the jury that it had to be satisfied that:

the Crown had proved a single conspiracy alleged and not separate conspiracies relating to the June/July, December/January and the March importations; and

the named co-conspirators and the appellant were each party to a single conspiracy spanning all 3 imports.

Ground 10: The trial miscarried because the Crown presented a conspiracy charge when the substantive [offence] was available.

Ground 11: The appellant contends that the trial miscarried by reason of the failure of the Crown evidence to exclude his alternate hypotheses that he intended that a border controlled drug (heroin) enter into Australia.

Ground 12: The trial miscarried by reason of the failure of the circumstantial evidence to prove beyond reasonable doubt that the appellant had the requisite knowledge of the conspiracy and his Honour’s failure to sufficiently direct the jury as to the law relating to knowledge.

Ground 13: The trial miscarried because the Crown failed to exclude the appellant’s alternate hypotheses to the charge of conspiracy in that he travelled to Adelaide to attend his parents’ anniversary dinner.

Ground 14: His Honour erred in failing to direct the jury as to any alternate hypotheses to the Crown’s hypotheses, that the reference to “brick inside”; being a reference to the appellant having knowledge of the heroin secreted in three items of furniture, was the only inference open to the jury upon the evidence.

Ground 15: His Honour erred in not directing that the appellant’s evidence of mistake needed to be rebutted by the Crown on the basis of beyond reasonable doubt and his Honour’s failure to do so caused the trial to miscarry.

His Honour failed to direct that the target container was sent by mistake.

His Honour failed to direct that the Crown’s case of 3 containers when the appellant’s case relied on evidence of 6 containers was a mistake of fact.

His Honour failed to direct the jury of the appellant’s defence evidence that the Crown had made a mistake in the payments to David Wilson.

Ground 16: The trial judge erred in admitting evidence of the appellant’s alleged involvement in the two previous importations as “relationship evidence”.

Ground 17: The trial miscarried because evidence of the appellant’s bad character was admitted.

Ground 18: The trial miscarried because of the failure of the judge to direct the jury as to the favourable evidence given by Xavier which supported the appellant’s defence.

Ground 19: A miscarriage of justice resulted from the absence at the trial of fresh evidence. (It was apparent from the submissions of the appellant that the fresh evidence referred to under this ground included:

a recording of a television program referring to ‘bricks’;

a website referring to ‘bricks’; and

an unsigned statement of Mr Moch Yusuf Pujiono).

Ground 20: The trial was tainted due to the conviction of Mark Standon (sic) (investigating officer and head of Crimes Commission) for conspiracy to pervert the course of justice and the import of pseudo-ephedrine.

Ground 21: The trial miscarried because of the conduct of the Crown and the conduct of the judge in making prejudicial comments about the appellant to the jury during the trial.

Ground 21(a): The trial judge erred during the summing-up by stating that the appellant was not referring to the heroin container during conversations with the co-accused on 24 February (exhibit 48B) when the appellant was.

THE CONVICTION APPEAL

The Trial

Prior to the empanelling of the jury, there was a pre-trial hearing as to the admissibility of evidence intended to be adduced by the Crown. His Honour heard argument on 17 March 2011 and ruled on the admissibility of evidence on that day.
The co-accused were arraigned on 22 March 2011 and the jury was empanelled on 6 April 2011. After a Crown opening and a brief opening by the appellant, who was represented by counsel, the Crown case ran from 7 April to 30 May 2011. The appellant’s case opened on 31 May 2011. His evidence-in-chief extended until 8 June 2011. He was then cross examined from that date until 1 July 2011 by Mr David Wilson, counsel for Mr Xavier and the Crown.
After addresses by counsel, the trial judge summed up on 25 to 27 July 2011, whereupon the jury retired and, as has been noted, returned a guilty verdict with respect to the appellant (and Mr Xavier) on 9 August 2011.

Outline of the Crown Case at trial

On 2 February 2008, shipping container BXTU7202670 (“the container”) departed Semarang, Indonesia carrying 86 pieces of wooden furniture. The consignor was CV Citra Buana in Semarang, Indonesia. The consignee was “Costless Group” at 2A Stonehouse Avenue Camden Park Adelaide (“the premises”). Costless Furniture was owned by Costless Group which was a business of Mr David Wilson.
On 16 February 2008, Mr Xavier arrived in Sydney from Indonesia. The appellant arrived in Sydney from Thailand on that date.
On 21 February 2008, Mr David Wilson and Mr Xavier met in Room 1159 at Star City apartments in Sydney (“Room 1159”). The authorities recorded various conversations between them:

Mr David Wilson told Mr Xavier that the money on offer was not acceptable and that he was not going away for 15 years for $100,000.

Mr David Wilson told Mr Xavier that he wanted $250,000 and that he had told the appellant that he wanted $250,000 for the first one but he got $55,000.

Mr David Wilson told Mr Xavier that he wanted $250,000 for the second one; “the last one before yours”. He also said he only got $45,000 and “he did it all and he loses his son for 15 years”.

Mr David Wilson told Mr Xavier that they could not continue to send him furniture that was not saleable and that when he burned it, people would notice.

Mr Xavier told Mr David Wilson that he was an integral part of the operation.

Mr David Wilson told Mr Xavier that he had told the appellant to wait for a while and that he could bring “as much shit in as you like mate” but there was no point if he could not move it.

On 24 February 2008, Mr Xavier rang Mr Gregory William Jones who said that he would arrive in Sydney on Thursday. Mr Xavier confirmed that Mr David Wilson had been to see him and was “in the picture”. Mr Jones told Mr Xavier that “the Ant” (Mr David Wren) was leaving that day and they discussed when he was expected to work.
On 24 February 2008, a conversation took place between the appellant and Mr David Wilson in Room 1159 where the appellant was annoyed with Mr David Wilson for going behind his back to speak to Mr Xavier about payment for his participation. The appellant said to Xavier “I brought you into this and not him”. Later, Mr Xavier arrived and the three of them discussed payment for participation in the import. Ultimately, the appellant told Mr David Wilson that even if there had been no agreement, the payment was unable to be changed.
On 26 February 2008, a shipping container of furniture arrived in Sydney, Australia from Semarang, Indonesia. As a result of an ongoing investigation by the NSW Crime Commission (“the Commission”), it had been brought to the attention of customs officers in advance of its arrival. The container, which was said to carry 86 pieces of wooden furniture, was sent from CV Citra Buana, addressed to Costless Group at an Adelaide address. It was x-rayed by customs officers and anomalies were identified. On further inspection, a chest of drawers was found to contain a white powder that tested positive for heroin.
The Australian Federal Police (“AFP”) were informed. Examination by an AFP forensic officer found 69 individual blocks of heroin, weighing a total of 28 kilograms of heroin hidden inside three chests of drawers. The pure weight of the heroin was 9.098 kilograms. Its wholesale value was in the range of AUD $7 million to $8.12 million when sold in 700 gram deals. The heroin was substituted with an inert substance and a controlled delivery of the container was conducted by the AFP.
On 28 February 2008, the appellant returned to Indonesia.
On 4 March 2008, Agility Logistics in Adelaide telephoned Mr David Wilson advising that they had done the freight forwarding for his container from Indonesia and passed it onto Complete Freights to for clearance.
On 8 March 2008, the appellant returned to Australia from Indonesia and checked into the Novotel Hotel at Darling Harbour.
On 10 March 2008, the appellant, Mr Xavier and Mr Jones met in the cafe at the Novotel Hotel and discussed prices and costings relating to the purchase, importation and sale of the heroin imported and their respective share of the proceeds.
Mr Xavier and the appellant were videoed in Room 702 at the Novotel Hotel counting large quantities of Australian currency and discussing the division of money between the co-conspirators.
The appellant and Mr Xavier went to the Western Union Money Exchange situated in Roslyn Street, Darlinghurst (“Money Exchange”), where the Australian currency was exchanged for large denominations of foreign currency.
At 12:33 am on 11 March 2008, in Room 840 of the Novotel Hotel, the appellant and Mr Jones discussed whether Mr David Wilson knew which pieces of furniture needed to be pulled out from the container load and the distribution of funds between the conspirators.
At 5:23 pm on 11 March 2008, Mr Jones rang Mr Wren and told him about the three pieces of furniture in which the drugs had been secreted.
At 8:20 pm on 11 March 2008, the appellant telephoned Mr Xavier to ask whether he had told Mr David Wilson which bits of furniture to remove and Mr Xavier said that he had and that the pieces of furniture were numbered.
On 12 March 2008, the container was collected from the docks in Adelaide and transported to the premises. Mr David Wilson was observed to be present when the container was delivered and was observed to unpack the container with two other males. All of the contents of the container were moved into the storehouse area of the premises.
At about 4 pm on 12 March 2008, the appellant was seen leaving the Money Exchange in Darlinghurst. He then took a taxi back to Darling Harbour where he met up with Mr Jones.
Later that evening, in Room 840 of the Novotel Hotel, the appellant and Mr Jones discussed at length payments to each of the co-conspirators. This included the appellant getting $750,000 and Mr Jones receiving $800,000. The discussion then moved to transporting cash out of Australia. Finally, Mr Jones told the appellant about a cocaine “bust” in Sydney where authorities substituted the cocaine and sent the delivery. A discussion then took place as to whether “the other thing’s alright.”
On 13 March 2008, the appellant flew from Sydney to Adelaide where he was met at the airport by Mr David Wilson. He arrived at about 10.30pm and they went straight from the airport to the premises.
At 10:43 pm on 13 March 2008, the appellant and Mr David Wilson arrived at the premises. They went into the furniture warehouse and Mr David Wilson was recorded confirming with the appellant that there were “three packages”. The appellant told him that they had “bricks inside….brick inside”.
On 20 March 2008, police arrested all of the co-conspirators other than Mr Xavier who was, at that point, out of the country. At the time of their arrest, the appellant, Mr Jones and Mr Wren were found to be in possession of very substantial amounts of cash. Mr David Wilson was also in possession of a significant sum of cash. Much of the cash in the possession of the appellant was in foreign currency. Search warrants were conducted in the homes or hotel rooms of the conspirators together with Mr David Wilson’s business. Among other things, the appellant was found to be in possession of a suitcase with a false bottom and a large amount of carbon paper.
In summary, the overall Crown case was that the members of the syndicate were involved in a conspiracy to import heroin in February/March 2008 and that the role of those persons were as follows:

The appellant, Mr Xavier and Mr Jones were the principals of the syndicate. They organised for the consignment of furniture in which the heroin was concealed to be shipped from Indonesia and delivered to Mr David Wilson’s furniture shop in Adelaide. They provided Mr David Wilson with information to enable him to identify the furniture containing the heroin in order to have it shipped to a storage facility in Wollongong. They were responsible for organising payment to the other members of the syndicate for their involvement. The appellant and Mr Xavier also changed the money involved in the offence into various foreign currencies to facilitate its transportation out of Australia.

Mr David Wilson had a furniture business in Adelaide trading as Costless Furniture. He was responsible for receipt of the furniture consignment at his warehouse, using his name and business on all shipping documents.

Mr Wren organised for the transfer of the furniture containing the heroin from Adelaide to Wollongong and the storage facility for the furniture in Wollongong.

Mr Jones and Mr Wren met with Mr Adam Horne, a suspected drug supplier, to sell the heroin.

The appellant’s case at trial

In summary, the appellant’s case at trial was as follows:

He was not a member of a syndicate to import heroin.

At the time of his arrest, he had various businesses including a cigarette business and a business to grow bio-fuel in Indonesia.

He was unaware of the alleged conspiracy to import heroin and was unknowingly involved in its importation.

He travelled to Australia to collect money owing to him for cigarettes, which he had sold to various persons including Mr Jones.

The conversations, telephone calls and SMS messaging construed by the Crown as relating to the heroin import were, for the most part, reference to the appellant’s legally established cigarette business, which he ran in Indonesia.

The appellant’s trip to Adelaide was to attend the wedding anniversary celebration dinner for the appellant’s parents which was held at his sister’s house in Adelaide.

The conversations captured on the “computer hard drive” referring to “three packages” did not relate to the three items of furniture, alleged by the Crown, but were in relation to three packages of money, which were observed by police surveillance which the appellant carried from Sydney to Adelaide on behalf of Mr David Wilson. The recorded conversation “they’ve got brick inside” did not relate to the 69 blocks of heroin secreted in the three items of furniture but related to the money carried in his suitcase. The word “they’ve” cannot be heard in the recording, which makes the sentence “brick inside” as the only identifiable words that were heard.

The recorded conversations between Mr Jones and the appellant in the hotel room in March 2008 regarding the three pieces of furniture to be sent to Sydney did not identify the appellant had the requisite knowledge to identify the furniture.

Overview of the trial judge’s summing-up

The Crown made submissions as to the trial judge’s summing-up which were uncontroversial and, in my view, correct.
It is convenient to extract that summary before dealing with the particular grounds of the appeal:

41. The summing-up took place on 25 to 27 July 2011. Prior to the commencement of the summing up, the trial judge provided a copy of his Honour’s proposed written directions on the elements of the offence. Counsel for the appellant did not indicate that he had any difficulties with the document that was ultimately distributed. Nor did counsel for the appellant object to the direction that his Honour ultimately delivered in respect of the relationship evidence (as to which see Ground 16), about which specific input was sought. His Honour also sought a written summary of the case of each accused for the purposes of the summing-up and counsel for the appellant provided one in respect of his client.
42. The trial judge gave the parties an opportunity to raise any specific directions they were seeking. The appellant sought a circumstantial case direction and a Zoneff direction on lies, both of which were given by his Honour.
43. The parties were given an opportunity to raise any issues with the summing up both during and at the end of the summing-up. Counsel for the appellant had no difficulties with what had occurred during the first 2 days. The trial judge dealt appropriately with his concerns at the conclusion of the summing-up.
44. The Crown sought 2 directions to deal with the content of counsel for the appellant’s closing address. Counsel for the appellant did not object to the first, correcting a statement which he had made concerning the Crown case. He did object to the trial judge’s proposed direction concerning the appellant’s outstanding charges. However the trial judge adopted the Crown’s form of words.
45. The trial judge summarised the evidence of the Crown witnesses appropriately. His Honour presented the appellant’s case in the terms provided by the appellant’s counsel. Following the summary of the cases for the appellant’s co-accused, his Honour gave a very brief outline of the Crown case.
General directions
46. The summing[-up] included directions as to the following matters:
a) The distinct roles of the judge and jury (SU 2);
b) Assessing the evidence of witnesses (SU 2-4);
c) The requirement to limit consideration to the evidence at trial, and not to take into account human experience where that contradicts the evidence at trial (SU 4-5);
d) The burden and standard of proof, and in particular, the fact that the appellant gave evidence did not alter the burden of proof upon the Crown (SU 5-6);
e) The requirement to give separate consideration to the verdict in respect of each accused and the ability return different verdicts in respect of the co-accused (SU 6-7);
f) The requirement for unanimous verdicts (SU 7, 128);
g) The ability to prove knowledge or intention by inference from the conduct of a person and/or words said by the person (SU 29-30);
h) A direction on the drawing of inferences (SU 30-31);
i) The standard direction on circumstantial evidence was given to the jury which his Honour then related to the facts of the case (SU31-33);
j) The jury was reminded that transcripts of the audio and video recordings were not evidence, but an aid to help them determine what they heard (SU 113); and
k) The procedure for the return of the verdicts (SU 127).

Directions on Elements of the Offence
47. The trial judge gave the jury some general directions about the nature of a conspiracy before providing specific written and oral directions on the elements of the charge of conspiracy before the Court. Those directions included:
a) The elements of the offence;
b) The requirement to prove that the agreed crime was importation of a border controlled drug, but not specifically heroin;
c) The requirement to prove only that there was agreement to import a quantity of the substance that at law was a commercial quantity of heroin and not the specific quantity imported;
d) As a matter of law, heroin was a border controlled drug and a commercial quantity of heroin was 1.5 kilograms pure;
e) A conspiracy occurred when two or more people intentionally entered into an agreement to commit a crime with the intention of committing the crime. The form of the agreement did not matter;
f) The sufficiency of proving agreement with one or more co-conspirators, rather than all of them;
g) The requirement to prove that the accused entered or continued to participate in the conspiracy within the stated time period, but not that the conspiracy existed during the whole of the stated time period or that the accused was involved in a conspiracy from the beginning;
h) The absence of a requirement to prove that an accused had a particular role in the conspiracy;
i) The fact that acts done and statements made by alleged co-conspirators in furtherance of the common purpose were evidence against all co-conspirators, even if they were not present at that time; and
j) The need to scrutinise with care evidence of acts done or statements made by others in the absence of any particular accused, but which implicate that accused.

[Footnotes omitted.]

Ground 1: The trial miscarried because “the appellant suffered undue influence to give evidence when he was unfit to do so”

In summary, the appellant’s argument in support of ground 1 was as follows:

It had not been the intention of the appellant to give evidence in his own defence. He only did so after the admission of evidence concerning the statement “they’ve got bricks inside” and the advice of counsel that he needed to give evidence even though he had informed his counsel that he was not fit to do so because of his mental health, namely, bi-polar 1 and his medication.

In reply submissions, the appellant contended “he was unable to understand and/or respond to questions posed to him by the Crown”. (The appellant referred to a passage of his evidence which does not, as I will discuss below, bear out this contention).

The trial judge refused to allow evidence as to the appellant’s mental health issues in the trial and refused his counsel’s application to have the jury appraised of the appellant’s mental health difficulties and the taking of medication, namely, Zyprexa.

The trial judge’s rulings in this respect caused great prejudice to the way the appellant was to conduct his defence and ultimately caused such unfairness as to cause the trial to miscarry.

The trial judge’s refusal to allow evidence of mental health difficulties and his refusal to permit medication issues to be identified to the jury represented bias towards the appellant and that bias itself caused itself a miscarriage.

Irrespective of whether the appellant “reluctantly agreed” to give evidence upon the advice of counsel, there is nothing on the material before the Court which would suggest that the appellant’s decision to give evidence was other than an informed one upon the basis of that advice. Nor is there any material which would suggest that counsel acted other than upon instructions in calling his client to give evidence. There is nothing in the appellant’s submissions which demonstrate how strenuously counsel provided advice to the appellant but, even in circumstances where advice is given in a forthright and firm manner that does not amount, without more, to “undue influence”.
As to the contentions of the appellant that the trial miscarried because he was afflicted with a mental illness and the trial judge refused to allow evidence of the same and that the mental health issues caused an unfairness to his defence, some three preliminary matters need to be taken into account.
First, there was no evidence, either at trial or before this Court, to suggest that the appellant’s trial miscarried on account of his mental health. There was no evidence to support a contention that the appellant was unable to defend himself in cross-examination because he was unfit to be tried at that point.
Secondly, on the 9 May 2011, a fitness hearing was interposed to consider whether Mr David Wilson was fit to stand trial. The appellant’s counsel did not at that point raise any fitness issues in relation to the appellant concerning his mental illness in contrast to the medication that he was taking at the time of the trial. Further, no such issue was raised at any other point during the trial. The contentions by counsel as to the taking of medication fell well short of an application with respect to the appellant’s fitness to be tried. In short, no such application was made during the trial.
Thirdly, whilst the appellant contended that he was suffering “a full blown bi-polar episode” and had “no memory of events at all” during the trial, at no point during his cross-examination did he identify that he was unable to understand or respond accurately to the questions asked or properly focus or concentrate. He did not seek a break in his cross-examination for that purpose or, for that matter, for the purposes of the taking of his medication.
The appellant stated that he suffered bi-polar 1 disorder. The appellant further stated that, at the time of the trial, he was taking Zyprexa tablets (prescribed by his treating doctor, Dr Cook) and that this medication affected his level of concentration and his ability to give evidence in the witness box. The appellant submitted that the trial judge’s refusal to notify the jury of his mental health amounted to a reasonable apprehension of bias and the trial judge’s refusal “to listen to [the appellant’s counsel’s] application to have the jury apprised of the appellant’s difficulties” caused the trial to miscarry because it “caused great prejudice to the way that the appellant was able to conduct his defence”. As already mentioned, counsel for the appellant made no application as to the appellant’s fitness to be tried at any point in the trial. Nor was an application made during the course of the appellant’s evidence to take any step because of difficulties he was experiencing.
Again as mentioned earlier, the appellant gave evidence in chief from 31 May to 8 June 2011 and was cross-examined until 1 July 2011. It is true that the appellant did ask the Crown to play a tape to refresh his memory and there were some matters which the appellant was unable to recall when questioned. However, the transcript of the appellant’s evidence does not substantiate the contention that he was experiencing difficulty in focus, concentration or in an overall sense memory. As counsel for the Crown submitted, he responded to questions put to him by accepting some propositions, refuting others and giving his account of what transpired. His responses demonstrated not only that he understood what was being put to him but he appreciated the significance of both the question and the answer, which he gave in the context of the broader narrative. That there may not be a satisfactory response to a given proposition does not substantiate the existence of cognitive difficulties but simply that there may be a difficulty in answering the proposition that was put in cross-examination. There was no illustration provided by the appellant as to where he experienced difficulties during the course of cross-examination.
Finally, there was no error in the trial judge refusing to disclose to the jury that the appellant was on medication prior to the appellant giving evidence. The appellant could have given evidence about that matter and, in fact, did so. He gave evidence that he was on medication, namely, Zyprexa and Tegretol, because he was bi-polar. He gave evidence that the effect of the medication was to slow brain function. In reply, the appellant relied upon part of his evidence given in chief on 31 May 2011 as follows: “some time I can’t fully comprehend what’s going around on me”. However, he omitted the part of his evidence which immediately followed, namely, “but generally as now I’m quite okay”. In giving that answer, he advised that he had just taken one Tegretol tablet.
In the circumstances, I consider ground 1 should be rejected.

Ground 2: The verdict resulted in a miscarriage of justice or is unreasonable or cannot be supported by the evidence and by reason of the inability of the evidence to exclude rational hypotheses consistent with innocence

In written submissions, the appellant included above the bolded heading for ground 2, the words “the verdict is unsafe and unsatisfactory; unreasonable or cannot be supported by the evidence”. As earlier set out, ground 2 is that “the verdict resulted in a miscarriage of justice, or is unreasonable or cannot be supported by the evidence and by reason of the inability on the evidence to exclude rational hypotheses consistent with innocence”. There are then a series of subsidiary contentions such as ground 2(a), which focused upon exhibit 40 at the Star City apartments on 21 February 2008.
The reason for mentioning those matters at the outset of considering ground 2 is that the Crown submitted that ground 2 (save for subsidiary ground 2(b)) together with grounds 3(a) and 8, 11 and 13, all prosecute the essential proposition that the verdict was unreasonable due to the evidence being insufficient to prove beyond reasonable doubt the existence of the conspiracy charge and/or that there was an alternative and reasonable hypothesis consistent with innocence. The appellant replied in a manner consistent with that approach. In line with that position, I will consider those grounds collectively, without repeating the narrative description of each ground (which is set out earlier in this judgment).

Verdict: unreasonable or not available on evidence

The principles to apply where it is contended a verdict is unreasonable or unavailable on the evidence (including where inconsistent verdicts are assented) were recently re-stated in Stanford v R [2018] NSWCCA 249 at [49]-[55] (per Simpson JA with whom Walton and Wilson JJ agreed) as follows:

[49] The test to be applied is well established, well rehearsed and well known. The starting point is the decision of the High Court in M v The Queen (1994) 181 CLR 487. It is worth repeating yet again what the High Court there said:
“493. Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (internal citations omitted)

[50] Their Honours, however, went on with some qualification of that principle. They said:
“494. 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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” (internal citation omitted)

[51] These principles have been affirmed on many occasions since: for example, Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
[52] It may therefore be seen that two competing considerations arise: regard that must be paid to the constitutional role of the jury in the determination of the guilt or otherwise of an accused person and the duty of an appellate court to make its own independent assessment of the evidence both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473, cited at [14] of SKA; MacKenzie v The Queen (1996) 190 CLR 348 at 365.
[53] A particular line of authorities has developed in the application of those principles where the unreasonableness of the verdict is said to arise from inconsistency of verdicts – that is, where a person accused of multiple offences is convicted of one or more, but acquitted of another or others. In those circumstances the court must be astute to ascertain whether there is a proper way to reconcile the verdicts (MacKenzie at p 367); Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [8]. The test is one of logic and reasonableness: MacKenzie at p 366. That assessment must be made in the light of the facts and circumstances of the particular case: MFA at [34].
[54] In Jones v The Queen (1997) 191 CLR 439 a jury convicted an accused person of two out of three counts on an indictment, but acquitted on one count. The Crown case in respect of each count depended on the evidence of the complainant. The High Court found no basis for thinking that the quality of her evidence was higher in respect of the counts that led to conviction than it was in respect of the count that resulted in acquittal. When that circumstance was combined with two other factors – a lengthy and unexplained delay by the complainant in making complaint, and the uncorroborated nature of the allegations – the High Court concluded that the convictions were (in the language that then prevailed) unsafe and unsatisfactory (at p 455).
[55] As comprehensively explained by Spigelman CJ in Markuleski, the decision in Jones is not authority for a generalised proposition that a mix of verdicts in a trial where multiple offences have been charged is indicative of the unreasonableness of verdicts of guilty. In MFA, a submission that Markuleski was wrongly decided was rejected (at [32]). Where the evidence on all counts is that of a single witness, however, careful scrutiny of the surrounding circumstances is required.

Reference should also be made to the High Court of Australia in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”) (per curiam) as follows (at [65]-[66]):

[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
[Footnotes omitted.]

The Crown correctly submitted that the elements of the offence with which the appellant was charged were as follows:

the appellant intentionally entered into an agreement with one or more persons named in the charge, or referred to as divers others, to import into Australia a substance being a border controlled drug, namely heroin;

the appellant and at least one other party to the agreement intended that the offence be committed, that is, a border controlled drug be imported;

the object of the conspiracy was to import a quantity of a substance, being a border controlled drug, namely heroin; and

The appellant, or at least one other party to the agreement, committed an overt act pursuant to the agreement.

The appellant submitted that the Crown had charged a single agreement encompassing an importation in June and December 2007 and March 2008 and that it was “necessary that the Crown prove that the appellant was a party to a single agreement spanning all three importations as alleged, on the basis that the appellant knew of and approved of the original agreement”. It was also submitted that it was “not sufficient to establish that some of the co-conspirators were in agreement relating to all agreements as portrayed throughout the trial and not a single over-arching agreement covering the three imports being advocated by the Crown”. Nor was it sufficient to prove simply an awareness (either the past or future intentions) of others.
These submissions sprung out of a contention of the appellant that the Crown’s case started from the proposition that, in June 2007, a container was sent to Sydney by Mr David Wilson “in identical circumstances as the items of furniture… sent to Sydney from the target heroin container which was sent in March [and was then] followed the December 2007 container…”. It was further contended that the Crown did not present any evidence of the appellant’s participation in the two previous containers which could be construed as the appellant being a member of an ongoing conspiracy to import heroin. The appellant contended that he had supplied cigarettes for those two previous containers and “as a consequence, while the Crown charged a single over-arching agreement that covered all importations, the evidence pointed to separate agreements, separate objectives and involving different participants”.
I do not accept the legal premise underpinning the appellant’s submissions in this respect. The Crown was only required to prove that the appellant entered or continued to participate in the conspiracy within the period 1 February to 21 March 2008 as charged in the indictment: R v Orton [1922] VLR 469 at 474 (per Cussen J) and R v Trudgeon (1988) 39 A Crim R 252 as 260-261 (per Lee CJ at CL).
The primary issue at the trial was whether the evidence was sufficient to prove an agreement between the appellant and his co-conspirators in the requisite period to import a border controlled drug. A significant proportion of the Crown case consisted of conversations and text messages of (or between) the co-conspirators recorded by telephone intercepts or the use of listening devices.
The Crown case relied on the drawing of inferences from proven facts to establish the existence of an agreement between the appellant and his co-conspirators in that period to import heroin. The facts relied upon the Crown in support of that inference included:

the appellant and Messrs Xavier, Jones, David Wilson and Wren were all known to each other;

there was a shipment of a container of wooden furniture from Indonesia to Costless Group which arrived in Australia on 26 February 2008 (“the shipment”);

the appellant and Messrs Xavier, Jones, David Wilson and Wren all had some involvement in the shipment and each was to be paid a sum of money for their participation;

Mr David Wilson understood that his role was to receive the shipment at his furniture business in Adelaide;

Mr David Wilson had received shipments of furniture from Indonesia to his furniture business in Adelaide in June/July and December 2007;

Mr David Wilson was aware of a risk that he would go to gaol as a consequence of his involvement in the shipment;

Mr Wren understood his role was to arrange for the shipment of certain items from that container to a storage facility in Wollongong;

the appellant understood that “bricks” were contained in three pieces of furniture that had been shipped to Mr David Wilson;

on inspection of the shipment, police found 69 packages of heroin wrapped as individual “blocks” in three chests of drawers which were the bricks referred to by the appellant;

on delivery of the shipment to Costless Group in Adelaide, the chests of drawers believed to contain heroin, together with a coffee table, were separated from the other items of furniture in the container and delivered to Wollongong;

the appellant exchanged large sums of money into various foreign currencies; and

on arrest, the appellant, Mr Jones and Mr Wren were found to be in possession of very significant sums of money. Mr David Wilson was also found to be in possession of a large sum of cash.

In the light of those factual circumstances the Crown made three submissions as to why the evidence was sufficient to prove beyond reasonable doubt the existence of the conspiracy charged as follows:

the appellant and at least one other party to the agreement intended that the offence be committed can be inferred from the fact that the shipment of furniture containing heroin was sent and arrived in Australia on 26 February 2008;

the object of the conspiracy to import a quantity of a substance, being a border-controlled drug, namely heroin, can be inferred from the fact that a quantity of heroin was imported from Indonesia to Australia arriving on 26 February 2008; and

there was evidence of numerous overt acts committed by the parties to the agreement pursuant to that agreement. At trial, the Crown relied upon the appellant’s trip from Sydney to Adelaide on 13 March 2008.

In my view, there was ample evidence to establish the facts relied upon by the Crown. Those facts supported the inferences sought be drawn by the Crown and ultimately the existence of an agreement between the appellant and his co-conspirators in the charged period to import a border controlled drug, namely, heroin.
The requisite facts in that respect are as follows:

On 2 February 2008, the container departed Semarang Indonesia carrying 86 pieces of wooden furniture. The consigner was CV Citra Buana of Semarang Indonesia. The consignee was “Costless Group” at an address in Adelaide. As mentioned above, this was a furniture business owned by Mr David Wilson.

On 26 February 2008, the container arrived in Sydney. It was intercepted by customs and the AFP conducted an examination whereby 69 individual blocks of heroin weighing a total of 26 kilograms were hidden in three chests of drawers.

It is clear that the appellant and Messrs Xavier, Jones, David Wilson and Wren were all known to each other. The involvement of each person was demonstrated through the evidence of recorded conversations. That evidence permitted the jury to conclude that the role of the appellant was to arrange for the shipment of the container containing furniture which had bricks of heroin stored in three pieces of furniture (as will be discussed below).

On 21 February 2008, Mr David Wilson and Mr Xavier met in Room 1159 at Star City apartments, Sydney. Their conversations were recorded and included Mr David Wilson telling Mr Xavier that the money on offer was not acceptable and that “he was not going away for 15 years for $100,000” and that he had told the appellant that he wanted $250,000 “for the first one” but only got $55,000. Mr David Wilson told Mr Xavier they could not continue to send him furniture that was not saleable and Mr Xavier told Mr David Wilson that he was an intricate part of the operation. It is true that, as the appellant submitted, the appellant was not involved in the conversation. However, that submission needs to be considered in the light of the conversation he was involved in shortly thereafter.

The appellant arrived at Room 1159 later on 21 February 2008, having arrived some days earlier in Sydney from Thailand. The appellant offered to lend Mr David Wilson a suitcase which had carbon paper lining so that cash was able to be carried through the airport without being detected. Mr David Wilson asked if the bag had any drug scents and the appellant said that he did not think so.

On 24 February 2008, Mr Xavier rang Mr Jones who said that he would arrive in Sydney on Thursday. Mr Xavier confirmed that Mr David Wilson had been to see him and was “in the picture”. Mr Jones told Mr Xavier that “the Ant” (Mr Wren) was leaving that day and they discussed when he was expected to work.

On 24 February 2008, a conversation took place between the appellant and Mr David Wilson in Room 1159 where the appellant was annoyed with Mr David Wilson for going behind his back to speak to Mr Xavier about payment for his participation. The appellant said to Mr Xavier “I brought you into this and not him. I’m the one whose [sic] decided what the… price was… [ind]… if you don’t want to do it… [ind] … find right”. Later, Mr Xavier arrived and the three of them discussed payment for participation in the importation.

Shortly after 24 February 2008, the appellant and Messrs Xavier and Jones left Australia. On 3 March 2008, Mr Jones rang Mr Xavier in Indonesia who told him that Mr David Wilson had the documents he needed to collect the container (which had recently arrived). Mr Jones told Mr Xavier that he would get Mr Wren to arrange the storage and Mr Xavier observed that it would take Mr David Wilson two or three days to have the furniture couriered to him.

Mr Xavier arrived back in Sydney on 6 March 2008 and the appellant returned from Indonesia on 8 March 2008. The appellant checked into the Novotel Hotel at Darling Harbour.

On 10 March 2008, the appellant and Messrs Xavier and Jones met in the cafe at the Novotel Hotel and discussed prices and costings relating to the purchase, importation and sale of the subject matter of the importation and their respective share of the proceeds.

Mr Xavier and the appellant were videoed in Room 702 at the Novotel Hotel counting large quantities of Australian currency and discussing the division of money.

At 12:33 pm on 11 March 2008, in Room 840 of the Novotel Hotel, the appellant and Mr Jones discussed whether Mr David Wilson knew which pieces of furniture needed to be pulled out from the container load and the distribution of funds between the conspirators. The recording (exhibit 134) showed Mr Jones stating “What you had to tell your brother. Which pieces to pull out” and the appellant replied “Oh, um, I don’t know. He must know”. The appellant said in submissions he had not given much thought to the issue at the time but Mr Jones showed his annoyance, stating “Oh god fuck me dead [background noise]… whispering… Two. Four six… Fucking hell I can’t do much about this”.

At 5:23 pm on 11 March 2008, Mr Jones rang Mr Wren and told him about the three pieces of furniture in which the drugs had been secreted. At 8:20 pm on 11 March 2008, the appellant telephoned Mr Xavier to ask whether he had told Mr David Wilson which bits of furniture to remove and Mr Xavier said that he had and that the pieces of furniture were numbered. He said: “Yeah because it’s… it’s there… it’s there the same, yeah?”

The appellant’s case is that he was a messenger and did not understand what was, in fact, the subject of the discussions. However, the explanation needs to be seen in the light of further recordings from the Novotel Hotel Room 840 on 12 March 2008 (exhibit 149) below. It may be noted that he relied on Mr Jones not carrying a phone. However, exhibit 194 records that there were three “identical telephone services” attributable to Mr Jones.

Mr David Wilson unpacked the container on 12 March 2008. All the contents were moved to a storehouse area. There were further discussions between the appellant and Mr Jones as to payments of each of the co-conspirators. When Mr Jones told the appellant about a “Cocaine Bust” in Sydney where authorities substituted cocaine and sent the delivery, a discussion followed in which the appellant questioned “the other thing’s alright” to which Mr Jones relied “Is it?” and the appellant replied “yeah, yeah I just phoned him”. I accept the Crown submissions that an inference is available that the appellant phoned his brother to ensure that all was well with the shipment given the furniture had been delivered to the premises.

At 6:55 pm on 12 March 2008, the appellant was recorded as saying “I would have been miserable at the loss of it. You’d be fucking sick as a pig, wouldn’t you”. He made that statement in the context of a news bulletin dealing with a “cocaine haul”. The appellant contended, unconvincingly, that the last statement was referrable to him being sick from using cocaine and not a reference to a lost importation of the drug. (This issue will be discussed further under ground 17).

On 13 March 2008, the appellant travelled to Adelaide.

Mr Xavier and the appellant were videoed in Room 702 at the Novotel Hotel counting large quantities of Australian currency and discussing the division of money between the co-conspirators.

A critical component of the appellant’s case was that his statement “they’ve got bricks inside” (noting he disputed the word ‘they’ve’) on 13 March 2008 was not a reference to blocks of heroin but to blocks of money. I do not consider that submission is sustainable but, due to its importance, I shall deal separately with the substance of the appellant’s argument below. (Contentions as to the admission of the evidence and his application to deal with fresh evidence shall be dealt with separately below: see ground 2(h) and 19).

On 13 March 2008, Mr David Wren arranged for Pack & Send Wollongong to transport the furniture from Adelaide to Wollongong. Melinda from Pack & Send rang Mr David Wilson to clarify what was being collected. He said “coffee tables” and that there were three of them but he was not sure. Whilst the packages were contained in cardboard, Mr David Wilson was uncertain of what was being shipped and how many were being shipped.

Shortly thereafter, there was a telephone call between Messrs Wren and David Wilson in which Mr David Wilson said he had no “paperwork” and Mr Wren stated “Well, John’s supposed to be there isn’t he?” Mr David Wilson indicated that he would further respond at times which coincided with the attendance in Adelaide of the appellant.

On 14 March 2008, after the “bricks inside” conversation, Mr David Wilson rang Pack & Send and explained precisely what was being sent in contradiction to his earlier uncertainty.

On 17 March 2008, Pack and Send collected three sideboards and a small table from Costless for delivery to Wollongong. The same day they contacted Mr Wren and advised that the items were likely to arrive at their Wollongong depot on 20 March 2008, from where Mr Wren stated he would collect them.

At 10:45 on 19 March 2008, Mr Wren took delivery of the furniture from the Pack and Send Warehouse in Wollongong, in an AVIS rental truck and drove to Wollongong Mini Storage where the furniture was unloaded and placed it into a secure storage shed at the facility.

At 12:33 on 19 March 2008, Mr Jones called Mr Wren and Mr Wren confirmed to Mr Jones that nothing in the furniture appeared tampered with. They arranged to meet the following day and Mr Jones confirmed that he would have the balance of Mr Wren’s payment.

At 16:13 on 19 March 2008, Mr Jones telephoned the appellant who told him that he had arrived back in Sydney and was staying at the Rydges Hotel, World Square, Sydney. They arranged to meet at the hotel in approximately 30 minutes.

On the following day, 20 March 2008, Mr Wren and Mr Jones met at Stanmore Park with suspected heroin supplier Mr Horne.

Further on 20 March 2008, AFP officers conducted a search warrant on Wollongong Mini Storage where they seized the 3 chests of drawers which were subsequently deconstructed by AFP forensic officers.

Later on 20 March 2008, the appellant and Mr Jones were arrested in the appellant’s hotel room at Rydges Hotel, World Square. On searching the room, police seized a large amount of property, including a very significant amount of cash and a suitcase with a concealed section.

The “bricks inside”

At 10:43 pm on 13 March 2008, the appellant and Mr David Wilson arrived at the premises. They went into the premises. In a transcription of an audio recording of 13 March 2008 (exhibit 251), Mr David Wilson is recorded as saying “how many? There was three, yeah? Three? Three?”. The appellant responds “Three what?” to which Mr David Wilson says, “Three packages. Yeah”. Some little time later the appellant states, “they’ve got bricks inside” to which Mr David Wilson responds, “huh?” and the appellant responds, “got brick inside” and Mr David Wilson states, “I had a good look inside… it was x-rayed” (there are various indistinct portions of those conversations).
In relation to the statement “they’ve got bricks inside”, the appellant made a submission that the reference to “they’ve got bricks inside” was a reference to the appellant carrying a $150,000 from Sydney to Adelaide by the airport on behalf of his brother. It was submitted:

The appellant contends that he agreed, based on the transcript, that he said “they’ve got bricks inside” but which he correct to “It’s got brick inside”. The appellant’s best recollection would be that he told [Mr David Wilson] “careful, “there’s [sic] brick in there” to which [Mr David Wilson] replied “what” the Appellant then answered “it’s got brick inside” this being reference to the money in his suitcase. At the time [Mr David Wilson] was rummaging through the appellant’s suitcase looking for some duty free whisky. The Appellant contends that the official listening device records him talking about the duty free whisky in his suitcase about this time adding weight to the Appellants (sic) explanation of events.
The appellant contends that the term “brick” is a colloquial reference to money in the U.K. “Also that ‘packages of money’ are often referred to as bricks”

As to the conversation between the appellant and his brother at the premises, the appellant submitted that the statement derived from Mr David Wilson picking up his case and finding it heavy. The bricks concerned money and particularly that he had large amounts of money in the case.
It might be noted that the appellant said that he could not recall the conversation. It was contended the $150,000 concerned the sale of cigarettes. The entry was indecipherable. Further, the appellant submitted the evidence of Federal Agent Thomson that he could hear the reference to “they’ve got bricks inside” should not have been admitted. The appellant accepted that that evidence as to money was not given at trial but that is because “no one questioned me on it”.
The appellant, it was contended, travelled to the premises after he had collected his brother from a hotel. His brother was “drunk”. The whole overt act which involved the conversation regarding the bricks inside was “less than two minutes” and without any knowledge of what was in the furniture.
The appellant contended that he had given evidence-in-chief that the bricks inside concerned the money in his suitcase. Further, it was said that it was not possible to hear the disc properly.
The appellant contended the references to “it was x-rayed” by Mr David Wilson in the same conversation were a reference to the chalk marks on the appellant’s suitcase. Chalk marks on a suitcase are a universal identification system used by airport staff to indicate that items of luggage should be x-rayed.
The appellant’s explanation as to his ‘bricks inside’ statement was inconsistent with the evidence he gave at the trial.
In his evidence-in-chief at trial as to the recording of a conversation (vis-à-vis the “bricks”), the appellant did not give evidence that the word (either itself or used in the context of the recorded conversation) had that meaning, namely, a reference to money. Rather, his explanation as to the subject reference in the recording of 13 March 2008 was as follows:

Q. There is indistinct conversation and then the transcript records that you say, “They’ve got bricks inside” and David Wilson say, “Huh”. Then you say some indistinct words. Then, “Got brick inside”, according to this transcript. What was that conversation referring to?
A. It was a reference to my security bag.
Q. How is that a reference to your security bag?
A. He was lifting the bag and he said it was heavy and I said it’s got bricks inside.
Q. Was that a reference to the concealment of border controlled drugs inside furniture?
A. No.

The appellant submitted that no one asked him what bricks meant. However, that explanation cannot be accepted for two reasons.
First, the omission in the evidence-in-chief occurred notwithstanding the fact that a short time earlier in his evidence in chief (on 3 June 2011), the appellant dealt with his “last telephone calls and actions” in Sydney before travelling to Adelaide on 13 March 2008 including visiting a money changer (to exchange $150,000 to euros). He gave evidence that he carried that money to Adelaide in his suitcase.
Secondly, the appellant was asked squarely “how is that a reference to your security bag?” and he made no reference to either money or the weight of it.
The appellant did not retreat from this explanation when cross-examined, notwithstanding that he agreed that, at the time of the conversation with his brother, he had departed the taxi he had been traveling in, moved inside the premises for over 10 minutes and bag that he was referring to was on wheels and had been moved inside the premises. It was put to him that the explanation was “just a nonsense” and he replied “that’s the only thing that makes sense to me”. He disagreed that what would make sense of the reference to bricks was a reference to blocks of heroin.
The Crown’s reliance on the ‘bricks inside’ statement by the appellant both at trial and on this appeal was clearly available to both establish the charge and the reasonableness of the verdict.

Inconsistent verdicts

The appellant also raised “inconsistent verdicts” in his submissions in respect of ground 2, stating that the “verdict” for his brother Mr David Wilson must affect his verdict by disproving that there was any agreement between them.
The jury was discharged when they were unable to reach a unanimous verdict in respect of Mr David Wilson. There being no verdict reached in respect of Mr David Wilson, it was not possible for the verdict in respect of Mr David Wilson to be inconsistent with that in relation to the appellant in any formal sense.
The inability of the jury to reach a verdict in respect of Mr David Wilson did not prevent them from reaching a verdict in relation to the appellant. The jury also found Mr Xavier guilty of the conspiracy charge. The jury was prepared to find beyond reasonable doubt that the appellant conspired with Mr Xavier, and possibly Mr Jones and Mr Wren, to import the commercial quantity of heroin which was, in fact, imported in February 2008. For the reasons set out above, that conclusion was available on the evidence. Section 11.5(4)(a) of the Code prohibits the conviction of an accused where all other parties to a conspiracy have been acquitted and a finding of guilt would be inconsistent with their acquittal. There were no acquittals in the proceedings below (and Mr Xavier was convicted).

Alternative hypothesis

On pages 12 to 49 of the appellant’s written submissions, the appellant makes various submissions which variously concern the refutation of his involvement in the conspiracy and an alternative hypothesis to demonstrate that he was not involved in the conspiracy. Central to those submissions was a contention that the discussions he had with the co-conspirators concerned his business of importing contraband cigarettes from India and not the importation of heroin. He pointed to the evidence which he submitted sustained those contentions.
In a series of propositions, the appellant described his “role” as being the following:

He used his knowledge/experience of furniture manufacturing/import/ trade between Indonesia and Australia to provide a medium for the import. It was contended, there was no evidence to support any participation in the import of heroin. Mr Xavier was quoted as saying the container which has been sent to Mr David Wilson was sent by mistake. It was Mr Xavier who took full responsibility for exporting the container to Adelaide.

He accepted he exchanged large quantities of Australian currency into large denomination euro notes and other foreign currencies at the Money Exchange in Darlinghurst but the money was from the sale of cigarettes and not the proceeds of heroin importation. All money transactions were prior to the container containing the heroin arriving.

His travel during the offence period, namely twice to Australia, was for the purposes of receiving payment from cigarette sales and to conduct the bio-fuel business.

The appellant did not recruit his brother to be the importer or recipient of the furniture or discuss his brother’s remuneration for that participation. It was contended that the appellant was recorded as saying that he should not receive the container.

well then pay no attention to that opinion. I actually suggest to you that it's inappropriate for the Crown to describe the defence as a red herring. I just say that it's inappropriate because that's not assisting you to do your job. That doesn't help you get over the enormous burden of work that you've got now in this trial.
And he told you, the Crown told you his understanding of the origin of the expression a red herring. And then you know from that description that it's not
an appropriate expression because you are not dogs on the scent to kill.
You are light years away were such a description. You are 12 citizens [chosen] at random from the people of our community to represent our community and to be judges of the facts.

Counsel for the appellant did not raise the issue with the trial judge or seek his assistance.
In written submissions on the appeal, the Crown submitted as follows (at para 229):

229. Counsel for the appellant complained to the Court, in the absence of the jury and in the course of his closing address about the conduct of the Crown towards him. While any such conduct by the Crown, if it occurred, would be unfortunate, it is not a matter that caused the trial to miscarry.

In Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 (“Gonzales”), this Court considered, inter alia, the question of whether a trial miscarried by reason of inflammatory and intemperate language used by the Crown Prosecutor in both cross-examination and his closing address to the jury. Giles JA (with whom Howie and Fullerton JJ agreed) applied the High Court decision of Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 (“Libke”) and held the following (at [99] and [105]-[107]):

[99] In Libke v The Queen at [71], Hayne J, with whose reasons Gleeson CJ and Heydon J agreed, referred to the central role of prosecuting counsel to ensure that the Crown case is presented with fairness to the accused, but observed at [72] that the prosecution case is to be presented in the context of an adversarial process in which each side is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; his Honour said that there were “boundaries to that process”, with choices to be made subject to the rules of evidence, fairness and admissibility. His Honour said at [74]-[77] that, in the complaint in that case of unfairness in undermining the accused’s credibility, it was an essential part of the prosecutor’s function to test the credibility of the account he gave and that the question was whether that was done unfairly, and that where no objection had been taken at trial it was important to examine carefully what happened at the trial to see in what respect there was said to be an unfairness. The additional remarks Gleeson CJ at [2] included that the argument that the conduct of the prosecutor during his cross-examination of the accused resulted in an unfair trial, and a miscarriage of justice, involved a question of degree.
…
[105] In Libke v The Queen the Crown Prosecutor’s cross-examination of the accused, set out at some length in the reasons of Kirby and Callinan JJ, was again far beyond the conduct of which the appellant complains in the present case. All members of the Court regarded it as unacceptable, but the majority (Gleeson CJ and Hayne and Heydon JJ) did not think that, considered as a whole, there was unfairness. Hayne J said at [82]-[83] that neither the Crown Prosecutor’s repeated expressions of alignment with the prosecution case nor other aspects of the cross-examination would have distracted the jury from their task of assessing whether the evidence which was led at trial established the accused’s guilt beyond reasonable doubt, and that the Crown Prosecutor’s comments “were not comments that suggested (whether directly or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning”.
[106] It was part of the Crown case that the appellant had been ill-prepared to make the triple-0 telephone call and for that reason had incorrectly said that his family had been shot. A word other than “pathetic” could have been used, but characterising the telephone call was pursuant to the Crown case and was not gratuitous denigration of the appellant or the defence case. Similarly, it was part of the Crown case that the appellant had by a false e-mail and a false report of attempted entry to his apartment attempted to divert attention from himself; there was no objection to the Crown’s evidence or cross-examination going to those matters. It would have been better if the Crown Prosecutor had not described them as pathetic attempts, but the Crown’s submission was that they indicated consciousness of guilt and I do not think there was unfairness in the trial because the Crown Prosecutor chose to make his point in the way he did. Each case depends on its own circumstances, as Gleeson CJ said in Libke v The Queen with a question of degree.
[107] R v Liristis was not on all fours with the present case. In my opinion, the uses of “pathetic” and “absolutely pathetic” of which the appellant complains when seen in their context did not impermissibly press upon the jury the Crown Prosecutor’s personal views, or appeal to emotions or prejudice in place of rational assessment of the evidence, and did not make the trial unfair. This ground fails.

It is clear from the authorities concerning whether the intemperate submissions by a Crown Prosecutor may result in a miscarriage of justice that each case will depend upon its own circumstances with questions of degree: Gonzales at [106], Libke per Gleeson CJ at [2]. In my view, the Crown’s submissions which referred to the defendant’s case as “palpable nonsense”, “absolute and utter nonsense”, “palpably laughable” and “just rubbish”(whilst regrettable and in my view, the submissions should not have been made), “were not comments that suggested (whether directly or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning”: Libke per Hayne J at [83]. Further, counsel for the appellant dealt with those comments extensively and vigorously in his closing address and did not seek further directions from the trial judge as to the use of that language. There were, in fact, aspects of the appellant’s case that were quite implausible, although the remonstrations by the Crown Prosecutor in confronting the issues were inappropriate. I consider that, in the circumstances of this case, the Crown’s comments did not result in the trial being unfair and further that no miscarriage has been established.
I have earlier rejected the submission of the appellant that evidence as to the appellant’s “multiple wives” did not cause the trial to miscarry (see at [263]-[265]). In terms of the submission as to inflammatory statements, neither the Crown nor the trial judge used, as contended by the appellant, the words “bigamist” or “bigamy”.
As discussed at [252]-[254], evidence as to a previous smuggling operation off the coast of England should not have been put to the appellant in cross-examination but as the Crown submitted, the audio recording of the relevant conversation was not in evidence and the appellant denied the conversation. Thus, there was no evidence before the jury of that matter.
It is not entirely clear what the appellant meant by “references being made to the appellant making derogatory comments against women” in the context of the trial. The Crown referred to a reference to “working girls”. It was accepted by the Crown that expression was used by the Crown Prosecutor but only in the absence of the jury.
In the course of submissions, counsel for the appellant complained about the Crown Prosecutor reminding the jury of a telephone conversation between the appellant and his brother of 10 March 2008 regarding “men’s entertainment”. However, the Crown did cross-examine the appellant about a conversation between himself, Mr Jones and Mr Ron Pilly commencing late on 10 March 2008 regarding women and sex. The trial judge gave a direction that any inferences arising from the conversation between the accused as to their activities with, or attitudes towards, women, were entirely irrelevant to the matters requiring their deliberation. In my view, this sufficiently disposes of contentions that this aspect of the trial resulted in a miscarriage.
The evidence regarding a news report relating to a “cocaine bust” has already been dealt with respect to ground 17(c). It was necessary for the Crown Prosecutor to address that issue and, in doing so, to propose to the jury how they may draw inferences from the conversation of 12 March 2008 in the Novotel Hotel which included asking the jury to have regard to the tone and context of what was being said.
The issue regarding the Crown case as to three containers has been dealt with earlier in this judgment in the context of grounds 2 and 17.
There would not appear to have been any evidence before the jury of cocaine use by the appellant. The only reference during the trial to cocaine use by any of the conspirators did not occur in front of the jury. The trial judge made no reference to cocaine use by any of the accused persons in front of the jury.
Neither the decision of the trial judge as to the fitness (or otherwise) of Mr David Wilson to be tried, nor the “failure” of the trial judge to discharge Mr David Wilson from the trial (except for the consequence of Mr David Wilson’s involvement for the duration of the trial), constituted a proper basis for finding the trial had miscarried.
Similarly, any request by the jury for evidence as to David Wilson’s mental health issues was not a matter that impacted upon the appellant’s trial.
The contention that the trial judge prompted Mr David Wilson to cross-examine the appellant is wrong. The trial judge expressly eschewed in discussion with Mr David Wilson that he had made any suggestion that he should or should not cross-examine the appellant. Advice was properly given to Mr David Wilson of the importance of cross-examining other witnesses as to things he intended to say in relation to his own evidence (if he chose to give evidence).
Further, I do not accept the contention that the trial judge encouraged Mr David Wilson to cross-examine in the face of an indication that he had no wish to do so. King SC DCJ did not improperly exercise his role as a trial judge by making suggestions as to how Mr David Wilson may put a question that had been objected to or which his Honour did not allow for technical reasons. Nor was it inappropriate for the trial judge to enquire of Mr David Wilson if he had exhausted his cross-examination and to make clear to him that this was the last occasion to ask questions. In all, the trial judge’s interventions, such as there were, going to Mr David Wilson’s cross-examination of the appellant were restricted to those matters about which a trial judge may give some guidance to a self-represented litigant.
The issue regarding Federal Agent Thomson and an alleged failure to investigate the appellant’s defence has been dealt with earlier in this judgment (see, in particular, ground 19). So too are the contentions of the appellant as to a failure to direct the jury as to the favourable evidence given by Mr Xavier and Mr David Wilson (see ground 18). Additionally, I have rejected the appellant’s challenge to the trial judge’s refusal to discharge a jury member who had a close family member who took ill and died during the course of the trial (see ground 4).
The remaining issue is the period in which the appellant spent in the witness box and the time afforded to Mr David Wilson for the preparation of and the carrying out of cross-examination.
The examination in chief of the appellant occurred over a six day period concluding on 8 June 2011 with that day and the previous day being for short periods of examination. The appellant’s cross-examination commenced on 8 June 2011 and concluded on 1 July 2011. The appellant was cross-examined over twelve days with the appellant being cross-examined on two occasions by Mr David Wilson, the second arising by way of imposition into the Crown Prosecutor’s cross-examination of the appellant.
Mr David Wilson initially cross-examined the appellant for a short period on 8 June. At the conclusion of the hearing on 8 June 2006 and after Mr David Wilson had been given the opportunity to prepare further questions over and above the short cross-examination, he indicated he had no further cross-examination. After the trial judge indicated that Mr David Wilson was effectively facing the last opportunity to cross-examine his brother, his Honour suggested that Mr Radojev, who appeared for Mr Xavier, might undertake his cross-examination with Mr David Wilson to resume thereafter with any further questions he had. Mr Radojev agreed with that proposal and there was no objection taken by counsel for the appellant. Mr Radojev’s cross-examination effectively concluded on 9 June 2011 (although there was some supplementary cross-examination on 14 June 2011.
At the conclusion of the hearing on 9 June 2011, the trial judge invited Mr David Wilson to consider his position vis-à-vis cross-examination with the matter resuming on 14 June 2011. Upon resuming on 14 June 2011, Mr David Wilson again indicated he had no questions.
After a further discussion on 14 June 2011 between the trial judge and Mr David Wilson, the trial judge expressed the view to the Crown Prosecutor that he had formed the conclusion that “no matter how long you wait Mr Wilson will continue to indicate he’s not ready”. After further submissions by counsel, his Honour expressed the view that “it is in fact in my view not fair on the current witness to have the cross-examination deferred for any more substantial period” to which counsel for the appellant submitted “I think any further delay is intolerable”. The trial judge determined, having regard to submissions by the Crown, to defer the cross-examination by Mr David Wilson until 2pm on that day. Upon resuming, Mr David Wilson indicated that he had no questions. There was short cross-examination by Mr Radojev and then the Crown Prosecutor commenced cross-examination.
The Crown’s cross-examination then proceeded over three days (15-17 June 2011) before further cross-examination was resumed. That cross-examination continued for the balance of 21 June 2011. On 22 June 2011, Mr David Wilson indicated that he was no longer able to question the appellant because of his “mental state”. There then followed some further cross-examination by Mr Radojev and then the Crown resumed cross-examination on 22 June 2011. There was no cross-examination on 24 June 2011.
On 27 June 2011, Mr David Wilson was given a further opportunity to listen to material provided (in DVD form) by the Crown and, thereafter, there occurred further cross-examination by Mr David Wilson on 28 June 2011 before the Crown resumed cross-examination on that day concluding on 1 July 2011.
The appellant submitted that he had been “kept in the witness box over a period of 30 days” and the judge allowed “continuous cross-examination by [Mr David] Wilson whenever he required”. The appellant argued that this led to a miscarriage of justice as he was kept in the witness box unnecessarily in order to “give [Mr David] Wilson more time to get his head together to cross-examine him”. He pointed to the arrangement whereby other cross-examination was interposed in order to allow Mr David Wilson more time for cross-examination.
The Crown contended that the trial judge had a difficult task balancing the interests of an unrepresented accused with those of the appellant and Mr Xavier, who were both represented. It was also contended the appellant did not oppose the giving of leave to Mr David Wilson to further cross-examine the appellant or the interposing of his evidence in the Crown’s cross-examination on 28 June 2011. It was also pointed out that the opportunity of Mr David Wilson to cross-examine his brother on 28 June 2011 arose in circumstances where the Crown had served additional material on the accused parties and the Court did not sit for various reasons in the period between 22 and 28 June 2011.
The appellant was not in the witness box for 30 days as he contended in his written submission. The whole of his evidence, including chief and cross-examination, involved 24 calendar days in which 16 days involved the taking of evidence, with some of those being interrupted in various ways. Nonetheless, he was in cross-examination for a period of 12 days, partly attributable to the indulgences given to Mr David Wilson.
The period of time that the appellant was retained in cross-examination is unfortunate and was a product of both the arrangements made for Mr David Wilson and lengthy cross-examination of the appellant per se. However, having examined the record of the proceedings below closely, I do not consider that the circumstances warrant a conclusion that there was a miscarriage of justice. In substance, his Honour constructed a procedure which gave an opportunity to a self-represented accused who was encountering difficulties to cross-examine although, in part, those difficulties appear to have arisen from the failure of Mr David Wilson to fully take advantage of the opportunities afforded to him by the trial judge. No party complained of the procedure adopted by his Honour during the trial. The final part of Mr Wilson’s cross-examination was inevitable because of the provision of additional materials to the co-accused before that time.
I have given consideration as to whether the overall period of time the appellant was subjected to cross-examination might warrant a conclusion that there was a mistrial. However, counsel for the appellant did not object to the delay but stated that, if the delay continued significantly beyond the point, an objection might arise. The issue was not raised by counsel again and no objection to the delay per se was raised at any stage by counsel for the appellant during the course of the trial.
Overall, I consider that this ground should be dismissed.

Ground 21(a): Error in summing-up

The appellant took issue with the following extract from the trial judge's summing-up of the appellant's case:

John Wilson had spoken of his disapproval of David Wilson's involvement in the subject container to David Wilson, as is supported by a number of matters… Exhibit 48B page 7, John Wilson saying "That's yours and his business" but John Wilson was then referring to the container with the furniture, not the heroin, and he directed you to the transcript which you have of John Wilson's evidence, at page 1762 at lines 10 to 26.

The evidence to which his Honour referred (at page 1762 lines 20-26 of the transcript) was as follows:

Q-(on 48B). Further down the same page, page 7 of this exhibit, you see that you said the words "That's what I said but that's yours and his business" You see those words?
A. Yes
Q. What did you mean when you were referring to "that's" where you say "that's yours and his business" what were you referring to?
A. That it was the business of David and Jose. It was not my business.
Q. And what was the business of David and Jose that you're referring to by the word "that" in this place?
A. I take it to be the second container.
Q. When you say the second container which container are you referring to, the one with the cigarettes or the one with the furniture and the border-controlled drug heroin?
A. The one with the drugs in.

The Crown conceded that the trial judge did misstate the evidence. However, it was submitted that no miscarriage of justice had occurred on that account for three reasons:

the summary of the appellant's case was provided by counsel for the appellant;

even if the error was that of the trial judge rather than the appellant's counsel, he sought no redirection on that issue; and

the trial judge directed the jury to the relevant portion of the transcript which makes clear that the appellant was referring to the container with the heroin.

I consider that the second and third of those submissions have substance and that, in the result, no miscarriage of justice had occurred on that account of the trial.
In the result, I would not grant leave under r 4 regarding this ground.
In any event, even if leave were granted, the appeal should nonetheless be dismissed under the proviso under s 6(1) of the Criminal Appeal Act. Whilst a misdirection in a summing-up may sound in a successful appeal, there is no ridged rule that a misdirection will preclude the application on the proviso, even in cases of significant error.
There is, rather, a need to focus on whether in the particular circumstances there was a substantial miscarriage of justice: Giourtalis v R [2013] NSWCCA 216 at [90]. That is, the Court must consider the nature and effect of the error in every case: Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 per Kiefel CJ, Bell, Keane and Edelman JJ at [39].
I accept the submission of the Crown that its case was sufficiently strong that no substantial miscarriage occurred. That conclusion derives from a consideration of the whole of the evidence and the conclusions reached earlier in this judgment, particularly with respect to ground 2 in which conclusions were made, in part, based on recorded conversations and the finding of large amounts of cash on the appellant at the time of his arrest.
In my view, ground 21(a) should be dismissed.

Conclusion regarding conviction appeal

As will be recalled, the Crown submitted the appellant should not be granted an extension of time to file an appeal and that if such extension is granted, the appeal should be otherwise dismissed.
I consider that an extension of time should be granted. The appeal is substantially out of time, so much so that the Crown’s submissions as to the difficulty of remittal must be accepted. I also agree that the appellant’s reasons for delay do not adequately explain the whole period of delay in the filing of the appeal, but they do explain a substantial period of the delay. The appellant has not ultimately established any ground of appeal, as such, but the issue raised under ground 21(a) was arguable (and the appellant demonstrated the trial judge mistook the evidence).
Nonetheless, the appellant has not established any ground of his conviction appeal. The appeal as to the conviction of the appellant should be dismissed. If ground 21(a) had been made out, I would have dismissed the appeal under the proviso.

SENTENCE APPEAL

There was no specific ground of appeal articulated in relation to the sentence appeal brought by the appellant. Nor did the appellant make oral submission on that issue. However, I agree with the submission of the Crown that the submissions in support of the appeal appeared to broadly raise three issues as follows:

the role of the appellant;

totality; and

parity having regard to the sentence imposed upon Mr Xavier.

I will deal with each of those issues in turn.

Role of the appellant

King SC DCJ found that the appellant was “a principal and primary organiser of the importation and involved throughout the conduct of the enterprise”. His Honour found that the appellant did the following things in performing that role:

used his knowledge of the furniture manufacture/import/export trade between Australia and Indonesia to provide a medium for the import;

exchanged large quantities of Australian currency, the proceeds of the conspiracy, into foreign currencies for the purpose of removing the money from Australia without declaration or detection;

travelled twice to Australia from abroad to facilitate the object of the conspiracy;

recruited his brother, Mr David Wilson, to be the importer/recipient of the furniture and discussed his brother’s remuneration for that participation;

met with Mr David Wilson and facilitated a meeting between Mr David Wilson and Mr Xavier to discuss payment for accepting the consignment;

telephoned his brother, Mr David Wilson to inform him that Mr Xavier required a private conversation with him to ensure that Mr David Wilson continued to participate in the enterprise;

transported currency out of Australia to Indonesia, to pay for the drug imported and to remove his profits;

financed (along with Mr Xavier) the importation, including payments to other syndicate members;

expected and received profits in excess of $750,000;

ensured, through liaison with Mr David Wilson, Mr Jones and Mr Xavier, that Mr David Wilson knew which pieces of furniture contained the drugs;

travelled to Adelaide to meet with Mr David Wilson to ensure correct identification of the furniture containing the drugs; and

reported back to Mr Xavier that the drugs has been safely handed over to Mr Wren.

The sentencing judge further found that Mr Xavier and Mr Jones were also principal and primary organisers of equal seniority to the appellant and that there was no-one higher in the hierarchy than those three offenders. In so doing, the sentencing judge rejected “without hesitation” a submission on behalf of the appellant that he:

had a lesser role than all of the other conspirators, including David Wilson, because all was in place for the importation of the container prior to the appellant being appraised of the fact of the shipment and that he was not involved in either the export of the same from Indonesia or its importation into Australia, both of which were arranged before he became aware of the matter. There is no clear role for the appellant to have played in the importation, after he became aware of it, and it is not clear that there was any intention to share the profits of the importation with him. The sentencing should reflect his late entry into the conspiracy (as found by the verdict) and his minor role in this importation.

The total sentence of imprisonment for 23 years is “unfair and did not reflect the role in the conspiracy he was convicted of”.
The appellant contended that the sentencing judge erred in sentencing him on the basis that he was a principal in the conspiracy. The appellant contended that he was sentenced primarily on the basis of the amount of money found on the appellant at the time of his arrest and this was an erroneous basis to reach that conclusion. There was “insufficient evidence” for the finding that that money was the result of the importation the subject of the conspiracy; rather, it could have been from previous imports. Recorded conversations support the proposition that the appellant was to receive small sums from others.
He contended that because the evidence pointed to the money as being the proceeds of previous imports and the conversations between Mr Xavier and Mr Jones and the appellant revealed the agreement was to give the appellant only $20,000 in relation to the container.
The appellant contended that he had the lowest role in the enterprise, “if any role at all”.
I do not accept those contentions for the following reasons.
I have earlier discussed the evidence as to the source of money deriving from the proceeds of imports. (The appellant had contended that he believed the import related cigarettes and that he was offered $20,000 in compensation because of the appellant’s animosity towards Mr David Wilson and Mr Xavier for importing the container “behind his back”). The evidence referred to by the appellant as to receiving $20,000 in the course of a conversation with Mr Jones puts out of account that which immediately follows in the conversation, namely, the appellant expected and received profits in excess of $750,000.
In similar vein, the substantive offence the subject of the conspiracy was disrupted by the police. It was well open to the sentencing judge to find that the enormous sums of money otherwise generated (and which led to a separate offence from the conspiracy), were the result of the importation of prohibited drugs.
Further, the finding that the appellant was a principal was by no means based merely on the enormous sum of money that he was found to have on arrest. It was based on the entirety of the evidence that I have recounted above, as summarised in the remarks on sentence, and, as mentioned, was well open to the sentencing judge.
It is simply unsustainable to suggest that, taken as a whole, the evidence recounted by the sentencing judge in the remarks on sentence, and consistent with what I have recounted in this judgement, showed that the appellant was within the criminal enterprise at the lowest level; quite the contrary.
I consider there was no error by the sentencing judge in making the finding that he did as to the appellant’s role.

Totality

The appellant contended that he had “received two sentences relating to the same crime” as the proceeds of crime were found by the sentencing judge to be the proceeds of heroin imported pursuant to the conspiracy offence.
It will be recalled that his Honour determined, as earlier mentioned, the appropriate sentence for each offence. However, this did not represent an error as his Honour was required to adopt that course. The sentencing judge did, however, make a finding that the moneys that were the subject of the proceeds of crime charge were part of the proceeds of the importation which was the subject of the conspiracy charge. As the sentencing judge noted, that conclusion was, for the purposes of sentencing, in the appellant’s favour.
In substance, the appellant’s contentions must be seen to be directed to the degree of accumulation between the sentences and, whilst not put expressly in these terms, that the sentences exceeded the criminality of the offending given the substantial overlap between the two offences.
The principles concerning the application of the totality principle are well established. In Cayhadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, Howie J enunciated those principles (at [27]) as follows:

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

In considering that question, it is necessary to have regard to the fact that the sentencing judge found that the proceeds of crime offence with which the appellant had been charged must be regarded as a serious example of such an offence with a high degree of moral culpability. There was no demur from that conclusion. In that light, the degree of accumulation fell within his Honour’s judicial discretion: R v Clements (1993) 68 A Crim R 167 at 172-173; R v Wilson [2005] NSWCCA 219 at [37], R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52].
The degree of accumulation was open to his Honour.
Although certainly related to the conspiracy, the proceeds of crime offence was legally and factually separate from it and the sentencing structure whereby there was a degree of overlap between the two head sentences was perfectly open to the sentencing judge in the circumstances of this case.
In my view, this aspect of his Honour’s judgment does not disclose an error.

Parity

The appellant contended that he received the highest sentence of all the accused in relation to the conspiracy. In particular, he noted that Mr Xavier, who was also described as a principal, was sentenced to only 12 years for the conspiracy, and 3 years in relation to the previous imports. The appellant further contended that it was unfair that he was sentenced separately for the proceeds of crime offence related to the subject import, whereas that offence was put on a Form 1 for Mr Xavier.
The principles in relation to parity are well established. As observed in Why v R [2017] NSWCCA 101 (at [43]):

[43] The principles for the application of the parity principle were summarised by Garling J (with whom Macfarlan JA and R S Hulme J agreed) in Rees v R [2012] NSWCCA 47 at [50]:
(1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: […];
(2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: […];
(3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is ‘marked’, or ‘clearly unjustifiable’, or ‘manifest ... such as to engender a justifiable sense of grievance’ or else it ‘[appears] that justice has not been done’: […];
(4) The elimination of an ‘unjustified’ discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This Court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: […].
(5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court:
(i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: […];
(ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; […];
(iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: […].

[References omitted.]

The sentencing judge expressly considered the issue of parity between the appellant and Mr Xavier, finding as follows:

While there are differences in the objective and subjective matters relating to each offender, the Court, after considerable reflection, has determined that there are no substantial differences that in the weighing up of them in the instinctive synthesis of determining appropriate sentences warrant the imposition of different sentences.

In fact, a similar sentence was imposed upon Mr Xavier, with the only distinction being the dates of effect, which reflected that he was not arrested until 3 May 2008.
Being a Commonwealth offence, the proceeds of crime offence with which the appellant was charged, was dealt with pursuant to s 16BA of the Crimes Act 1914 (Cth), rather than being dealt with on a Form 1 per se, but the effect was similar.
However, the proceeds of crime offence for which the appellant was sentenced related to the subject conspiracy to import, whereas the proceeds of crime offence for which Mr Xavier was sentenced was a principal sentence relating to an earlier import. For Mr Xavier, the proceeds offence related to the subject conspiracy to import and was incorporated into the sentence for the earlier proceeds of crime offence.
The sentencing judge did not expressly address the fact that the proceeds of crime offence for which Mr Xavier had been sentenced was an offence that pre-dated the conspiracy offence and that the proceeds of crime offence (similar to that for which the appellant was sentenced), was an additional offence to be taken into account with the principal proceeds of crime offence. Further, the sentencing judge made no reference to the offence being taken into account with the principal proceeds of crime offence when announcing the sentence to be imposed on Mr Xavier.
Nonetheless, his Honour was clearly cognisant of the distinction between the substantive proceeds of crime offences for which the appellant and Mr Xavier prospectively stood to be sentenced. His Honour was also aware that Mr Xavier had asked the Court to take into account a second proceeds of crime offence when dealing with the primary proceeds of crime offence. This is apparent from the findings made by the sentencing judge as to the objective seriousness of the three proceeds of crime offences.
In my view, there is no merit in the argument based upon erroneous disparity. It is true that Mr Xavier had a further offence to be taken into account when he was sentenced for his own offence to do with the proceeds of crime. However, by the time of the imposition of sentence, he had admitted his guilt of the conspiracy, confirmed that his proposed benefit was to be many hundreds of thousands of dollars, and offered assistance to police. In all the circumstances, and bearing in mind the evaluative judgement about the equivalence of their roles, it was perfectly open to the sentencing judge to impose identical sentences on the two men (noting appropriate differences in the date for the commencement of the sentence).

Conclusion regarding sentencing appeal

Having regard to the issues raised as to parity, leave to appeal should be granted but the sentencing appeal be dismissed.

ORDERS

I would make the following orders:

The application by the appellant to call fresh evidence is refused.

Leave is granted to the appellant to file the appeal out of time.

Leave to appeal is granted.

The appeal is dismissed.

BUTTON J: I agree with Walton J.
While the comments of the Crown prosecutor were inappropriate, in all the circumstances they did not occasion a miscarriage of justice.
Separately, far from the verdict of guilty being unsafe, in my opinion the Crown case against the appellant was strong.

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Decision last updated: 24 June 2019

Medium Neutral Citation:	Wilson v R [2019] NSWCCA 38
Hearing dates:	27 August 2018
Date of orders:	27 February 2019
Decision date:	27 February 2019
Before:	Hoeben CJ at CL at [1] Walton J at [2] Button J at [382]
Decision:	(1) The application by the appellant to call fresh evidence is refused. (2) Leave is granted to the appellant to file the appeal out of time. (3) Leave to appeal is granted. (4) The appeal is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – extension of time – whether verdict unreasonable or not available on the evidence – inconsistent verdicts – admissibility of evidence of surveillance recordings – obligation to present material evidence – failure to raise issues at trial – discharge of jury on prejudicial event – fairness of Crown submissions – fairness or appropriateness of summing-up and jury directions – evidence of bad character – fresh evidence – perversion of the course of justice – conduct of Crown in submissions – extension of time granted – appeal dismissed CRIMINAL LAW – sentencing appeal – role of appellant – totality – parity – extension of time granted – leave to appeal granted – appeal dismissed
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW) Listening and Surveillance Devices Act 1972 (SA) Surveillance Devices Act 2007 (NSW)
Cases Cited:	Aouad v The Queen (2011) 207 A Crim R 411; [2011] NSWCCA 61 ARS v R [2011] NSWCCA 266 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Curran v R [2017] NSWCCA 123 Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 Flood-Smith v R [2018] NSWCCA 103 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Giourtalis v R [2013] NSWCCA 216 Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 Hughes v R [2018] NSWCCA 2 Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Masri v R [2015] NSWCCA 243 Maxwell v The Queen (1996) 184 CLR 501 Obeid v R [2017] NSWCCA 221 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Abusafiah (1991) 24 NSWLR 531 R v AZ [2018] NSWCCA 294 R v Bartle [2003] NSWCCA 329 R v Chan (2002) 131 A Crim R 66; [2002] NSWCCA 217 R v Clements (1993) 68 A Crim R 167 R v Orton [1922] VLR 469 R v Trudgeon (1988) 39 A Crim R 252 R v Wilson [2005] NSWCCA 219 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 Stanford v R [2018] NSWCCA 249 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 Why v R [2017] NSWCCA 101 Zoneff v R (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	John Michael Wilson (Applicant) Regina (Respondent)
Representation:	Counsel: J Paingakulam and D New (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2008/110792
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 9 August 2011; 13 April 2012 Before: King SC DCJ File Number(s): 2008/110792