Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Faraj v R [2022] NSWCCA 31 Hearing dates: 11 February 2022 Decision date: 23 February 2022 Before: Gleeson JA at [1]; Harrison J at [2]; Adamson J at [3] Decision: (1) Grant leave to the applicant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to appeal against his convictions. (2) Dismiss the appeal against the convictions. (3) Grant leave to the applicant to appeal against sentence. (4) Dismiss the appeal against sentence. Catchwords: APPEALS — From jury verdict — Misdirection or non-direction — whether an anti-tendency direction was required — where trial counsel did not seek an anti-tendency direction — whether trial judge erred by not giving direction SENTENCING — Appeal against sentence — whether fact on which sentence was based was proved beyond reasonable doubt — whether it was open to trial judge to find existence of fact beyond reasonable doubt SENTENCING — Appeal against sentence — whether trial judge erred in assessing prospects of rehabilitation — whether it was open to trial judge to assess prospects as slim Legislation Cited: Crimes Act 1900 (NSW), s 193B Drug Misuse and Trafficking Act 1985 (NSW), s 25 Evidence Act 1995 (NSW), s 97 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 Quach v The Queen [2002] NSWCCA 519; (2002) 137 A Crim R 345 R v Isaacs (1997) 41 NSWLR 374 Sultana v R (1994) 74 A Crim R 27 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Category: Principal judgment Parties: Adib Hassib Faraj (Applicant) Regina (Respondent) Representation: Counsel: T Game SC / P Lange (Applicant) E Balodis (Respondent) Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2015/370002 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 December 2018 Before: Sutherland SC DCJ File Number(s): 2015/370002 Judgment 1. GLEESON JA: I agree with Adamson J. 2. HARRISON J: I agree with Adamson J. 3. ADAMSON J: Adib Hassib Faraj (the applicant) was convicted of all six counts on the indictment following a trial by jury before Sutherland SC DCJ (the trial judge) between 30 April 2018 and 17 May 2018. He seeks leave to appeal against his convictions on the following ground: "His Honour erred in failing to direct the jury on the manner in which the evidence of other alleged drug dealing by the applicant could be employed in its reasoning." 1. In the alternative, he seeks leave to appeal against the aggregate sentence of 13 years' imprisonment with a non-parole period of 9 years on the following grounds: "1. His Honour erred in sentencing the applicant on the basis that counts 1-3 involved the supply of '9000 tablets', in the absence of evidence capable of proving beyond reasonable doubt that this was the quantity involved; and 2. His Honour erred in concluding that the applicant had 'slim' prospects of rehabilitation in the light of his denial of responsibility for the offences, and his involvement in the charged drug offending." 1. Counts 1-4 related to the supply of 3,4-methylenedioxymethylamphetamine (MDMA); count 5 relates to the supply of methylamphetamine (ice); and count 6 relates to the possession of a Rolex watch, alleged to be the proceeds of crime. 2. The counts and indicative sentences for each count are set out in the table below: Count Date Offence Provision Indicative sentence 1 28 October 2015 Supply not less than large commercial quantity of MDMA (as depicted by video surveillance in applicant's kitchen) S 25(2), Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) 9 years' imprisonment; 6 years' non-parole period (NPP) 2 2 November 2015 Supply not less than commercial quantity of MDMA (as depicted by video surveillance in applicant's kitchen) S 25(2) DMTA 7 years' imprisonment; 5 years' NPP 3 13 November 2015 Supply not less than large commercial quantity of MDMA (3 packages of pink pills found in a package wrapped in black tape in the back of VW Bora motor vehicle on execution of a covert search warrant which was made to look like a robbery) S 25(2) DMTA 9 years' imprisonment; 6 years' NPP 4 16 December 2015 Supply 72.2g of MDMA (found on search of unit by police pursuant to a warrant) S 25(1) DMTA 3 years' imprisonment 5 16 December 2015 Supply 4.82g of ice (found on search of unit by police pursuant to a warrant) S 25(1) DMTA 18 months' imprisonment 6 Between 25 November 2015 and 17 December 2015 Possess Rolex watch, worth $40,000, knowing it was proceeds of crime (Rolex watch bought in cash from jewellers in Burwood) S 193B(2) of the Crimes Act 1900 (NSW) 2 years and 6 months' imprisonment 1. Mr Game SC, who appeared with Mr Lange for the applicant, accepted that leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required to argue the conviction ground as no such direction had been sought by the applicant's trial counsel. In order to determine whether leave ought be granted, it is necessary to address the conduct of the trial, particularly in so far as it related to the evidence of the appellant's drug dealing, other than in relation to the offences charged. 2. The Crown case comprised evidence which included: 1. Video and audio recordings made during the period from 15 September 2015 to 16 December 2015 from inside the unit at Manly (the unit) where the applicant lived with his then girlfriend, Tijana Agnew; 2. Searches conducted by police of the unit and the VW motor vehicle registered in Ms Agnew's name which was garaged in a carpark associated with the unit; and 3. The oral evidence of Ms Agnew that she had seen the applicant dealing in drugs and had, on occasion, helped him to count substantial amounts of cash notes; 4. The oral evidence of Kartal Ozmen, who sold a Rolex watch to the applicant for $40,000, which was paid in cash, in circumstances where the applicant had asked him to provide documentation to indicate that he had paid only $5,000 (relevant to count 6); and 5. 106 intercepted telecommunications between 16 September 2015 and 13 December 2015 to which the applicant was a party which related to drug transactions other than those charged on the indictment. 1. To prove its case on counts 1-5, the Crown was required to prove that it was the applicant (and not Ms Agnew) who was in possession of, and therefore deemed to have supplied, the various quantities of drugs. 2. The playing of the intercepted telecommunications took in the order of a day (day 6 of the trial). The transcript of the communications was 343 pages. The evidence was not objected to by the applicant. 3. Prior to addresses, the trial judge sought assistance from counsel as to the directions to be given. The applicant's trial counsel sought a direction that the jury regard the audio recording of the telephone intercepts as the evidence and the transcript only as a guide and not as a replacement for the audio recording. As referred to above, neither counsel sought an anti-tendency direction in respect of the telephone intercepts. 4. In his closing address, the prosecutor submitted that most of the intercepted communications concerned the supply of drugs. He did not replay the recordings of the intercepted calls in his closing, but he extracted certain passages from the transcript which related to drugs. The prosecutor also referred to a statement made by the applicant in the course of a telephone conversation on 24 September 2015 in which the applicant said of Ms Agnew: "She doesn't party, nothing. She doesn't nothing. Look, she doesn't drink. Plus she's gorgeous and a good person. Good family." 1. The prosecutor also highlighted a conversation in which the applicant said that Ms Agnew was "stressing about money", which he contended was inconsistent with the defence case that she was dealing in drugs. 2. In his closing, the applicant's trial counsel referred to the telephone intercepts when listing the categories of evidence. He said: "Now, the crown has said I never suggested to anybody that my client wasn't dealing drugs. Well, he admits in his ERISP that he used to give drugs to his friends and use drugs with his friends. The way the law is couched, and his Honour will tell you this, it's not a question of selling his supply. Giving his supply. And he said in his record of interview time and time, 'Yeah, I used to party with people. We used to share drugs. Sometimes they brought their own. Sometimes I gave them some of mine. We were at parties. We were partiers.' Technically, that's a supply, but it's not a supply that's covered by any of the charges in this indictment. Far from it." 1. Much of the defence closing was directed to submitting that Ms Agnew was lying when she gave evidence which implicated the applicant. Indeed, the applicant's trial counsel submitted that Ms Agnew was "addicted to lying." He referred to the telephone intercepts and relied on the lack of relevant communications in the period immediately after the police had searched the VW Bora (and found the drugs which are the subject of count 3) in the following passage: "The Crown case is that these drugs were secreted in the Bora in early October and in mid November, acting on this so-called intelligence of the telephone call, 'I wouldn't drive the Bora if I were you,' they break into the Bora and steal the drugs. But interestingly enough, the way they break into the Bora is very significant. And it's significant - you may think, a matter for you - for this reason, if and no other. They're trying to spook whoever put the drugs in the car into doing something. For example, ringing a mate up and saying, 'The drugs have gone missing.' So what happens? If you look at the telephone intercepts of my client's phone, but funnily enough not Ms Agnew's phone, what do you see? Complete and utter radio silence. Have a look, 13th, 14th, 15th, 16 November nothing. There are phone calls made but there is none of this panicked, 'Guess what, things happened, blah, blah, blah, blah,' as you'd expect. Because if you had 600 grams of MDMA or whatever it was walk out of your car, you may be a little nonplussed. Not a word. And that, a matter for you, you may find very significant because that's not what you'd expect." 1. Apart from this reference to the telephone intercepts, there was hardly a mention of them. Indeed, much of the address was devoted to reading from transcript of defence counsel's cross-examination of Ms Agnew and making submissions that she could not be believed. 2. In the course of the summing up, the trial judge referred to the telephone intercepts and told the jury that it was the Crown case that the calls supported the proposition that the applicant was involved in the supply of drugs and not merely the sharing of drugs at parties. His Honour then proceeded, as part of his summary of the evidence, to go through the transcripts of the telephone intercepts. In a summing up of 137 pages, the summary of transcripts took up from pages 67-104, or in the order of 27%. The summary was incomplete in that it stopped before the end of the transcripts. The summary included his Honour's commentary, which need not be addressed as there is no complaint about it. At the conclusion of the partial summary his Honour said: "That is succinct as I am going to be, which just reminds you, in effect, of what the Crown sought to remind you of those calls, and that was the essence of it. Now, can I briefly say a few things in relation to the approach that the Crown invited you to take. The Crown took you through the various phone calls and they had a couple of things to say which - or their counter points and in advance of what they expected Mr Radojev [the applicant's trial counsel] to say to you." 1. The applicant particularly relied, in support of the appeal ground against conviction, on the following passage from the summing up: "The Crown, on the other hand, say to you, look, this is consistent with what Tijana Agnew had to say, it is consistent with what you see on the videos, and you would irresistibly be drawn to the conclusion and have absolutely no reservation about it whatsoever that this is talking about drug dealing and supplying of drugs to somebody who is in Perth, somebody is down in Geelong and goodness knows what is happening up there in the Gold Coast. And you get a picture of the type of person that the Crown says is the person connected with what is in the car and what is in the house, not Ms Agnew." [Emphasis added to indicate the emphasis placed by the applicant in this Court.] 1. Ultimately, when summarising the parties' cases, the trial judge said that the Crown case was that the applicant was involved in distributing and selling drugs, that he was doing it commercially and that the Crown had proved each of the counts beyond reasonable doubt. The trial judge summarised the defence case as admitting that the applicant had some involvement in drugs but that Ms Agnew was the person who was responsible for the drugs which were the subject of counts 1-5 and that the Rolex had not been purchased with the proceeds of crime. Consideration of application for leave to appeal against conviction 1. The applicant argued that there was a risk that the jury would use the telephone intercept evidence to infer that the applicant was the type of person who would commit drug offences and that an anti-tendency direction was required to direct the jury not to reason in that way. 2. Evidence which is relevant to show a course of conduct, such as running a particular business, whether that of a tailor in Gleeson CJ's example in Sultana v R (1994) 74 A Crim R 27 or a drug dealer, as in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 and Quach v The Queen [2002] NSWCCA 519; (2002) 137 A Crim R 345, is admissible on that ground, even though it may also bear the character of tendency evidence because it may also show that a person has a propensity to commit a crime. As Gleeson CJ said in Sultana v R, at 29: "[T]he fact that it bears the latter character does not detract from its relevance or render it inadmissible." 1. The telephone intercept evidence was, on this basis, relevant and admissible for a non-tendency purpose to show that the applicant was in the business of dealing in drugs. As the conditions precedent for its use as tendency evidence provided for in s 97 of the Evidence Act 1995 (NSW) had not been met, the evidence could not be used as the basis for an inference that the applicant had a propensity to commit crimes, being illegal drug dealing. 2. The distinction drawn in the authorities between a course of conduct (carrying on business as a drug dealer) and a propensity (propensity to commit drug-related crimes), while legally maintainable and comprehensible, is not necessarily one which, in the interests of the applicant, needed to be pointed out to a jury. Whether the risk of the jury reasoning on the latter basis warranted an anti-tendency direction is a matter not only of judgment but also of forensic choice. Spelling out the prohibited chain of reasoning (by telling the jury that they must not reason from the evidence of drug dealing that the applicant had a propensity to engage in illicit drug dealing and that, accordingly, he was guilty of the offences charged) was not, in my view, necessary in order to ensure that the applicant's trial was fair. 3. I note that there is no ground alleging incompetence of the applicant's trial counsel. Nor do I discern any basis for making such an allegation. The Crown case against the applicant was strong. The defence case at trial raised, as a hypothesis consistent with innocence, that Ms Agnew was the drug dealer and that she was a liar, generally as well as to the extent that her evidence implicated the applicant. The defence sought to implicate her with the drugs which were found in the VW Bora motor vehicle, which was registered in her name, not only to create a doubt with respect to count 3, but also to implicate her in the commission of counts 1, 2, 4 and 5, and thereby exonerate him in respect of those counts, as well as count 6 (which depended on his having access to the proceeds of crime). 4. Although the applicant is bound by the way his counsel conducted the trial, this principle does not excuse the trial judge from ensuring that the applicant has had a fair trial. Thus, the omission to seek an anti-tendency direction does not conclude the matter. It is necessary for this Court to determine whether the absence of the direction compromised the fairness of the applicant's trial. The High Court in Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 (Hamilton) addressed the effect of the failure to seek an anti-tendency direction in circumstances where the appellant had been convicted of several sexual offences against his children. In Hamilton, the defence case was that the appellant's former wife and children had conspired to make false allegations of sexual assault against him. It would, in those circumstances, have cut across the defence case to give an anti-tendency direction (directing the jury that if they were satisfied that the appellant had committed one or more sexual assaults on one or more of his children, they could not use that fact to reason that he was the kind of person who had the propensity to sexually assault his children). The majority (Kiefel CJ, Keane and Steward JJ) said, at [43]: "[T]here is no absolute rule that in such cases the risk of impermissible tendency reasoning is such as always to necessitate the giving of an anti-tendency direction. The risk of tendency reasoning is not present in every case to the same extent; rather, the extent of the risk will depend upon the issues presented by the parties and the other directions given by the trial judge." 1. Because of the way the defence case was presented, it was not in the interests of the applicant's trial counsel to highlight the distinction between tendency evidence (he committed these drug offences because he has committed previous drug offences) and circumstantial evidence of a course of conduct (he is more likely to have committed these drug offences because he is in the business of drug dealing). Further, his Honour gave extensive directions about circumstantial evidence. 2. When the trial judge asked the parties to identify which directions they sought, neither raised the need for an anti-tendency direction. It would have been preferable for the trial judge to raise the possibility of an anti-tendency direction. However, it was not an error, in the circumstances of the present case, not to do so and not to give such a direction. 3. I would grant leave pursuant to rule 4.15 of the Rules but dismiss the appeal against conviction. Consideration of application for leave to appeal against sentence Ground 1: alleged error in determining the amount supplied 1. Mr Game submitted that the aggregate sentence was erroneous because the indicative sentences in respect of counts 1 and 2 were based on quantities of drugs which had not been proved beyond reasonable doubt. He contended that, in the absence of compelling evidence as to the amount of drugs supplied, the trial judge was constrained by the threshold amount relating to the offence of which the applicant was convicted. The threshold amount for offence of supply not less than a large commercial quantity of MDMA was 500g and for the offence of supply not less than a commercial quantity of MDMA was 125g. 2. In order to address this ground, it is necessary to examine, first, the way the Crown case was put; second, the evidence relied on in support of counts 1 and 2; and, third, his Honour's findings in the sentencing judgment. 3. The Crown case on count 1 was that, on 28 October 2015, the applicant was in possession of five bags of MDMA tablets (each containing 1,000 tablets and weighing approximately 220g) for the purposes of supply. This amount was based on there being three bags in a package wrapped in black tape in addition to the two bags placed on the kitchen bench. The jury could not have returned a verdict of guilty on count 1 had it been satisfied only that there were two bags since the combined weight of the two bags fell short of the large commercial quantity. A third bag was required to make up the weight to reach the threshold for large commercial quantity. The jury by its verdict must be taken to have rejected the defence case that the Crown could not exclude the hypothesis consistent with innocence: namely, that the bags were full of pink lollies. 4. Given the way the Crown put its case and the jury's verdict on count 1, it can be inferred that the jury was satisfied that the package wrapped in black tape contained at least one bag of tablets. When taken together with the two other bags, the total added up to more than a large commercial quantity. The jury only needed to be satisfied that there were three bags to convict the applicant of count 1, which charged that the quantity supplied was more than a large commercial quantity. However, on sentencing, the trial judge was required to sentence consistently with the verdict, but on the basis of the facts as his Honour found them to be: R v Isaacs (1997) 41 NSWLR 374 at 378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) and Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [5] (Gleeson CJ, Gummow and Hayne JJ). Any fact adverse to the applicant was required to be proved beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). 5. The Crown case was that the package wrapped in black tape contained "about 600g of tablets" in three bags and that this inference can be drawn because it was "a similar quantity of drugs" as were found in the VW Bora on 13 November 2015. The drugs which were found in the VW Bora were packed in a package wrapped in black tape which appeared to be similar to the item which was depicted on the surveillance film for the 28 October 2015. 6. I consider that it was open to his Honour, having regard to the jury's verdict on count 1; the similarity between the package wrapped in black tape found in the VW Bora and that depicted on the surveillance video (part of Exhibit Q); and the circumstances that the applicant was conducting a business as a drug dealer to find beyond reasonable doubt that there was a similar quantity of MDMA (about 600g) in the package wrapped in black tape depicted in the video surveillance on 28 October 2015. 7. Thus, it was open to his Honour to find beyond reasonable doubt that count 1 involved the supply of 5,000 tablets, weighing approximately 1.1kg in 5 bags. There was no challenge on sentence to the amounts in counts 2 and 3. Thus, it was open to his Honour to find that the applicant had supplied a total of 9,000 tablets with respect to counts 1-3, as set out below. Count Charge Tablets/weight/bags 1 Supply of not less than large commercial quantity of MDMA (kitchen) 5,000 tablets, 1.1kg, 5 bags 2 Supply of not less than commercial quantity of MDMA (kitchen) 1,000 tablets, 220g, 1 bag 3 Supply of not less than large commercial quantity of MDMA (VW Bora) 3,000 tablets, 620g, 3 bags 1. For these reasons, I am not satisfied that ground 1 of the application for leave to appeal against sentence has been made out. Ground 2: alleged error in assessing prospects of rehabilitation 1. Mr Game submitted that his Honour's finding that his prospects of rehabilitation were slim was erroneous because it was based solely on the applicant's denial of wrongdoing. He contended that it did not follow from a denial of wrongdoing that prospects of rehabilitation were slim. 2. It is necessary, when addressing this ground to have regard to the trial judge's reasons as a whole. His Honour dedicated several pages of the sentencing judgment to the applicant's "espoused past history", including descriptions of the applicant's work history, for which there was no evidence other than statements made by the applicant to the authors of reports tendered on sentencing. For example, Ms Kim Dilati, forensic psychologist, in her report dated 20 July 2018 which was tendered by the applicant on sentence included the following history: "Following his graduation from University in 2004 and a desire to be self-employed, [the applicant] reported that he impulsively travelled to Dubai to arrange a meeting with an existing Emirates oil company delegate to lead the exportation of quality oil into Australia. [The applicant] believes he founded the company, Emirates Oil Company after he devised an elaborate business plan to sell oil to various stakeholders. After 8-9 years as the Director and an extensive client base, [the applicant] reported he became 'bored' and decided to sell the company in 2014 for a reported one million dollars. [The applicant] stated that he decided to have one year off before investing in a club 'The Velvet Underground' located in York Street, Sydney. [The applicant] believes he operated the club on a part-time basis in order to develop experience in the nightclub industry. Prior to his arrest, [the applicant] stated that he was in the process of leasing a commercial premises in Brookvale with the intention to open his own club." 1. The final sentence of the history reported by Ms Dilati was in marked contrast with the video and audio surveillance, which depicted the applicant dealing in drugs from the kitchen of the apartment in Manly where he lived with Ms Agnew. Mr Game relied on the following opinion (expressed as a belief) in Ms Dilati's report as follows: "It is believed that [the applicant] does have the capacity to correct his behaviours and maintain a prosocial lifestyle however he will require suitable interventions to mitigate his risk of reoffending. As such it is recommended that he attend counselling and consider psychotropic medication to reduce his risk of relapse, improve his affect, and increase his rational/reasoning skills, executive functioning, and consequential thinking skills". 1. Ms Dilati's belief was, in terms, heavily qualified. Further, it was based on the history Ms Dilati was given, including the work history set out above. His Honour was not only entitled, but also obliged, to assess the utility of this opinion in the context not only of the whole of the evidence at trial but also the other evidence adduced on sentence. 2. Further, his Honour noted that the applicant contended that the police had planted the MDMA in the VW Bora. This contention required an elaborate conspiracy theory because it depended on the police (for an unidentified motive) having planted MDMA in the VW Bora; subsequently applying for a covert search warrant; purporting to find the MDMA which they had planted there; and charging the applicant with count 3, notwithstanding that the police already had substantial surveillance evidence against the applicant to support counts 1 and 2. His Honour was entitled to regard this theory as another instance of the applicant blaming others for his own wrongdoing (as he had done in the trial by blaming Ms Agnew for the drug-dealing, a hypothesis which the jury must be taken to have rejected beyond reasonable doubt). His Honour's assessment of the applicant depended, in part, on the disparities between the histories he had given, including to Community Corrections in the pre-sentence report, and to his current partner (who has given birth to their child in Germany, where she has the support of her parents). 3. It is plain from a fair reading of his Honour's reasons that his Honour took into account all the evidence and several relevant factors before coming to the conclusion that the applicant's prospects of rehabilitation were slim. His Honour did not merely (as contended for on behalf of the applicant) infer from the applicant's denial of wrongdoing that his prospects of rehabilitation were slim. I consider that the finding was open to his Honour on the basis of the evidence adduced. I am not persuaded that the error alleged in ground 2 of the application for leave to appeal against sentence has been made out. Proposed orders 1. For the reasons given above, I propose the following orders: 1. Grant leave to the applicant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to appeal against his convictions. 2. Dismiss the appeal against the convictions. 3. Grant leave to the applicant to appeal against sentence. 4. Dismiss the appeal against sentence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2022