Regina v Afif Abdallah [1999] NSWCCA 380

New South Wales Court of Criminal Appeal CITATION : Regina v Afif Abdallah [1999] NSWCCA 380 FILE NUMBER(S) : CCA 60107/98 HEARING DATE(S) : Friday 10 September 1999 JUDGMENT DATE : 8 December 1999

PARTIES : Afif Abdallah (appellant) Regina (respondent) JUDGMENT OF : Meagher JA at 1; Grove J at 2; Hidden J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0068 LOWER COURT JUDICIAL OFFICER : Bellear DCJ

COUNSEL : J L Glissan (appellant) JV Agius (Crown) SOLICITORS : Sukkar & Associates (appellant) Commonwealth Director of Public Prosecutions (Crown) CATCHWORDS : CRIMINAL LAW: Trial for involvement in importation of cocaine - complaint about structure and clarity of summing-up - adequacy of warning about evidence of accomplice - no question of principle ACTS CITED : Evidence Act 1995 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60107/98

MEAGHER JA GROVE J HIDDEN J

Wednesday, 8 December 1999 Regina v AFIF ABDALLAH

Judgment

1 MEAGHER JA : I agree with the judgment of Hidden J. 2 GROVE J: I agree with Hidden J. 3 HIDDEN J: The appellant, Afif Abdallah, was tried with a jury in the District Court on a charge of being knowingly concerned in the importation of a trafficable quantity of cocaine. He was found guilty and was later sentenced to a term of imprisonment. The appeal is brought against conviction only.

The evidence 4 It was the Crown case that in early 1996 the appellant approached Fawaz Abdul-Hadi to enquire if he knew anyone willing to travel overseas and bring back a drug ("the white") from Colombia. This meeting took place at the appellant's business premises at Homebush. 5 Abdul-Hadi recruited Nicholas Simeonides and introduced him to the appellant at the business premises. The appellant asked Simeonides to go to Quito, Ecuador and to ring him upon arrival to inform him at which hotel he was staying. The appellant telephoned an overseas number and informed the person on the other end of the line of the arrangement. He gave Simeonides money to obtain a passport and for other expenses, and instructed Abdul-Hadi to organise a flight to Quito. 6 At a second meeting at the business premises, the appellant told Simeonides that the drug would be concealed in "baby dolls". He also told Simeonides that he would be paid $12,000 for the trip. In May 1996 Abdul-Hadi booked Simeonides' flight and the appellant paid for it. His passport was issued in the following month. At a further meeting that same month at the business premises, Simeonides asked the appellant for money and the appellant said that Adbul-Hadi would look after him. 7 A visa having been arranged, Simeonides left Australia on 21 June 1996, travelling to Ecuador via Argentina. Upon arrival in Quito, he phoned Abdul-Hadi to give him his telephone number in that city. Abdul-Hadi later met the appellant and gave him that telephone number. The appellant rang an overseas number, informing the person on the other end of the line of Simeonides' arrival and his telephone number. He told Abdul-Hadi that the drug would be coming in a "diving bottle", rather than in dolls . 8 During Simeonides' stay overseas, the appellant had Abdul-Hadi deposit a total of about $11,000 into his Visa account for his expenses. On 31 July 1996 he instructed Abdul-Hadi to transfer an amount of almost $10,000 to Colombia. 9 On 8 August 1996 Simeonides phoned Abdul-Hadi to inform him of his arrival date in Sydney. Abdul-Hadi passed that information on to the appellant, who was already aware of it. Simeonides departed from Ecuador on 9 August, arriving in Sydney at about 8:50pm on 12 August. 10 Early on 12 August the appellant rang Abdul-Hadi, telling him that they were to go to the airport that night and that he was to come to the appellant's home at Campsie at 7:30pm. They drove to the airport, arriving at about the same time as Simeonides' flight. The appellant asked Abdul-Hadi to go into the terminal alone, as he did not want to be seen there. 11 Abdul-Hadi returned to the appellant's car to report that Simeonides had not emerged from the terminal. The appellant made several calls on his mobile phone, and Abdul-Hadi tried to contact Simeonides' home on that phone but rang the wrong number. Vodafone call charge records show that at about 10:15pm, the time at which the appellant and Abdul-Hadi left the airport, the appellant's mobile phone was used in the Vodafone cell for the airport. 12 In fact, Simeonides had been detained following a search of his luggage by Customs Officers. He was carrying a Scuba air tank, in which cocaine was secreted. 13 Simeonides also had in his possession a card with the address and telephone number of the Majestic Hotel in Quito, Ecuador. Call charge records for the telephone service at the appellant's business premises revealed that more than 20 phone calls were made from that service to that hotel between 18 July and 9 August 1996. Call charge records for the telephone service connected to the appellant's home showed that three further calls were made to the hotel in the morning of 13 August. 14 Simeonides agreed to assist police to conduct a controlled delivery of a substitute Scuba air tank. Early in the morning of 13 August he was taken by Federal Police officers to his home at Sans Souci, where he was supplied with a tank similar to that which he had brought into the country. Surveillance was maintained on his premises. 15 Later in the day Abdul-Hadi drove to Simeonides' home. From there he telephoned the appellant, who had a brief conversation with Simeonides. In the early afternoon Abdul-Hadi left, carrying the substitute tank in a backpack, and drove to the appellant's home. 16 The appellant was waiting at his front gate when Abdul-Hadi arrived. He walked to the vehicle, reached inside and removed the backpack. He took it inside and began to unpack it. A young man entered and told him that there were "some people out there". The appellant left the room where he was with the backpack and returned empty handed, apparently having hid it outside the house. 17 Abdul-Hadi left the appellant's home and was followed by police to his own home at Croydon, where he was arrested. The appellant was seen by surveillance police to leave his house, enter his vehicle, drive around the block, and return to the house a few minutes later. 18 Shortly thereafter, police entered the house and spoke to the appellant. He denied any knowledge of the backpack and claimed to have just arrived home. A search warrant was obtained by telephone and was executed later in the afternoon. The backpack containing the Scuba tank was located under a sheet of corrugated iron in the backyard of the house next door to the appellant's. He was arrested and conveyed to Federal Police Headquarters, where he declined to participate in a taped interview. 19 The principal witness in the Crown case was Abdul-Hadi. He co-operated with the police and undertook to give evidence against the appellant. Having pleaded guilty to his part in the affair, he was extended leniency accordingly. Simeonides refused to give evidence, and was not called. A number of police officers gave evidence, including officers involved in the surveillance of the appellant's home on the day of his arrest. One of those officers, Federal Agent Lynette Keller, testified that she saw the appellant carrying the backpack as he and Abdul-Hadi walked from Abdul-Hadi's vehicle to the home. 20 The appellant gave evidence at the trial, denying any involvement in the importation. He denied ever having met Simeonides, and his case was that Abdul-Hadi had falsely implicated him so as to reduce his own culpability. He denied having carried the backpack into his home on the day of his arrest, claiming that the backpack said to have been found in the house next door had been planted there by the police. His evidence was that he was not home at the time he was alleged to have taken possession of the backpack, and this was supported by the evidence of his wife and two other relatives.