Patterson v. Regina (Cwlth) [2001] NSWCCA 316

New South Wales Court of Criminal Appeal

CITATION : Patterson v. Regina (Cwlth) [2001] NSWCCA 316 FILE NUMBER(S) : CCA 60589/00 HEARING DATE(S) : 12 July 2001 JUDGMENT DATE : 12 July 2001

PARTIES : Wayne Desmond Patterson - appellant Crown - respondent JUDGMENT OF : Hodgson JA at 1; Mathews AJA at 75; Studdert J at 76

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1032 LOWER COURT JUDICIAL Christie DCJ OFFICER :

COUNSEL : Mr. M.C. Ramage QC for appellant Mr. D. G. Staehli for Crown SOLICITORS : Brezniak Neil-Smith & Co., Sydney for appellant Commonwealth Director of Public Prosecutions for Crown CATCHWORDS : CRIMINAL LAW - Appeal against conviction - Prosecution submission concerning "lies" - Whether trial judge's directions adequate. - CRIMINAL LAW - Appeal against sentence - Credit given for period of incarceration - Whether non-parole period should be calculated before or after this credit is given. - EVIDENCE - Hearsay - Criminal trial - Depositions from committal proceedings - Whether admissible when witness not "unavailable" within meaning of Evidence Act. D. LEGISLATION CITED : Criminal Procedure Act s.112 Evidence Act 1995, s.65, Dictionary. CASES CITED: Edwards v. R. (1993) 178 CLR 193 Zoneff v. R. (2000) 200 CLR 234 DECISION : See par.77 of judgment

IN THE COURT OF CRIMINAL APPEAL

No. 60589/00

HODGSON JA MATHEWS AJA STUDDERT J

Thursday 12 July 2001 Wayne Desmond PATTERSON v. REGINA (Cwlth) JUDGMENT 1 HODGSON JA: On 1 May 2000 the appellant appeared in the District Court of New South Wales before Christie DCJ and a jury for trial on a charge that between about 1 November 1995 and 13 January 1996 in Sydney in the State of New South Wales and elsewhere he was knowingly concerned with the importation into Australia of prohibited imports to which section 223B(1) of the Customs Act 1901-1905 applied, namely narcotic goods consisting of a quantity of cannabis resin being not less than a trafficable quantity applicable to cannabis resin. He pleaded not guilty. 2 The trial lasted 12 days and on 17 May 2000 the jury returned a verdict of guilty. On 25 August 2000 Christie DCJ sentenced the appellant to imprisonment for six and one half years and specified a non parole period of four and one half years. The appellant appeals to this Court against the conviction and seeks leave to appeal against the sentence. 3 At the trial the fact of importation and the appellant's involvement in it were not disputed and were clearly proved. The only issue was whether or not the appellant's involvement in the importation was proved beyond reasonable doubt to have been knowing in the sense of the appellant knowing that cannabis was being imported. 4 There was no direct evidence of the appellant's knowledge that cannabis was being imported. The Crown case was that this could be inferred beyond reasonable doubt from the circumstances. The appellant gave evidence on oath to the effect that he had no knowledge of the circumstance that cannabis was involved. 5 In order to understand the issues on the appeal against conviction, it is convenient first to set out briefly the circumstances which were clearly proved and were not the subject of any contest. 6 On 11 January 1996 a cardboard carton was examined by Customs officers at the premises of Federal Express Australia at Mascot Airport. On the cartons was an airway bill which described the contents as "neon transformer", identified the sender's account as being "care of Mr Robert Thompson" and showed the sender as a company in Bangkok, Thailand, named Estel Company Limited. The recipient was named as Mr S Moore, Nu Tech Communications, 88 Parramatta Road, Lidcombe, with telephone number 7480888. 7 Customs officers opened the cartons, disclosing three small boxes. Inside each of the boxes was a metal box, which turned out to be a transformer casing with the internal workings removed to be replaced by cannabis resin, the quantity being just over seven kilograms in all. Taped on to one of the metal boxes, or possibly one of the smaller cartons, was a hand written letter on the letterhead of Dynasty Inn in Bangkok addressed to "Steve" and signed by "George", referring to meetings, including a meeting at the Estel factory and stating, among other things, "I have only been able to send you three units with another seven to follow within the next four weeks." 8 Australian Federal Police removed the bulk of the cannabis, and a controlled delivery sample of a little over 300 grams was replaced, together with other innocuous material, and repacked in the carton. Equipment capable of transmitting sound was installed in the carton. 9 On 12 January an officer of the Australian Federal Police, posing as a Federal Express employee, telephoned the phone number on the airway bill, spoke to a woman at Nu Tech Communications and was given a mobile telephone number at which, after a number of tries, he spoke to a man who provided the correct airway bill number and identified himself as Stephen Moore. 10 Thereafter this man and a woman named Rebecca Jack attended Federal Express premises and collected the carton. Mr Moore and Miss Jack took the carton to a green Statesman vehicle and they were followed by Police to Kings Cross where they parked the car, apparently met one Daniel Hutton in the Bourbon and Beefsteak Bar, and then drove with him around Kings Cross, ending up in the vicinity of a Kings Cross parking station. 11 It appears on the way the outer cardboard carton was discarded in a garbage bin. Mr Hutton left the vehicle carrying two of the smaller boxes and went into the parking station. The Statesman car drove off and shortly afterwards Mr Hutton came out of the parking station without the boxes, and returned to the Bourbon and Beefsteak Bar where he met the appellant. A little later Mr Hutton and the appellant went to the parking station and drove off in a blue Mitsubishi hire car. 12 There was evidence, with which the appellant agreed, that they did not go to the boot of the car before driving it off from its parking space. After a short time the car was stopped in traffic and Mr Hutton and the appellant were approached by police and arrested. Two boxes containing the transformer casings and the substituted material were found in the boot. 13 When the vehicle was searched, other items were also found. Firstly, two Papua New Guinea licences with the appellant's photograph, one with his own name and one with the name Frank Barnett. Secondly, a page on Dynasty Inn letterhead with writing of the appellant and some brown wrapping paper labelled "sample". Thirdly, an invoice from Estel Company Limited in Bangkok dated 16 December 1995 for four transformers at $US96.9 each, making a total of $US387.6. with the appellant's hand writing on that invoice with the words "attention Robert Thompson", that name being misspelt, "Regards Frank". Fourthly, there was a document apparently faxed on 10 January 1996 from "Kalbo", identified in the evidence as one Mark Ross from Thailand, addressed to Frank Barnett, referring to, among other things, some engines and stating matters such as, "I can put the man to work on the boxes right away", and other material which I need not relate. 14 Fifthly, there were a number of orders for the international transfer of money. Sixthly, there was a note in the appellant's hand writing, addressed to Mark Ross, apparently written on 25 December 1995. Seventhly, there was a document with a telephone number and, among other things, words "money for last lot. Money for next lot". Finally, there was a piece of paper with the relevant airway bill number on it. 15 A search of Mr Moore's home located the third carton and a Papua New Guinea driver's licence with Mr Moore's photograph, but in the name of Stuart Morris. There was uncontested forensic evidence that a fingerprint of the appellant was on one of the cartons found in the boot of the Mitsubishi car. There was also forensic evidence that the sample tape on the Dynasty Inn letterhead was indistinguishable from tape on the imported carton, but also that this was quite a common tape. 16 In addition to that material, there was substantial material concerning telephone conversations between the appellant's mobile phone and Mr Moore's mobile and home phones and other relevant phone numbers, and also the evidence of transfers of money shown on the money transfer documents to which I have referred. There was also evidence concerning the hiring of the Mitsubishi vehicle, and the history leading up to the appellant's arrival in Sydney on the morning of 12 January 1996. 17 I will briefly summarise in chronological order the effect of this evidence. 18 The first relevant transfer of money was a transfer of just under $5,000 on 3 November 1995 to a person named Nittaya Ross, identified as Mark Ross's wife, in Bangkok, the transferor being Stephen Moore, using the name Stuart Morris. 19 On 4 November 1995, there were two business class air tickets to the Philippines and return, departing on 5 November, returning on 7 November for the appellant, which Moore purchased at a cost of $3,360. On each of 10 and 11 November 1995 there was a transfer of $5,000, again apparently to Nattaya Ross in Bangkok, this time by the appellant in the name of Frank Barnett. 20 Between 26 September and 23 November 1995 there were frequent telephone calls recorded between Mr Moore's mobile phone and Mr Patterson's mobile phone. On 24 November 1995 Mr Moore departed Sydney for Thailand. On 30 November 1995 the appellant departed Sydney for Thailand. On 3 December Mr Moore arrived back in Sydney. 21 Between 4 December 1995 and 4 January 1996 there were several telephone calls from Mr Moore's home and also from Mr Hutton's home to the Dynasty Inn hotel in Bangkok. On 6 January 1996 the appellant arrived in Brisbane from Bangkok. On 7 January 1996 the appellant went to Brisbane Airport with one Maureen Brown, where she hired the Mitsubishi car from Thrifty, with the appellant identified as a driver under the name Frank Barnett. 22 On 8 January 1996 a further $1,000 was transferred to Bangkok by the appellant to one Mark Dowsley. Between 6 January 1996 and 11 January 1996 there were numerous calls from the appellant's mobile phone and the Mitsubishi car's mobile phone to Mr Moore's mobile phone, Dynasty Inn, Mr Hutton's home and also Ms Jack's home. 23 On the night of 11 January 1996 the appellant drove overnight from Brisbane to Sydney, arriving at about 5.30am. A number of telephone calls are recorded, one at 9.17am from the Mitsubishi's car phone to Mr Moore's mobile phone; another at 11.24 am from Mr Moore's home to the appellant's mobile home; another at 14:25 from the appellant's mobile phone to Mr Moore's mobile phone; another at 18:36 from Mr Moore's home to the appellant's mobile phone; another at 5.39am on 12 January 1996 from the appellant's mobile phone to Mr Moore's mobile phone; and another at 9.38 on 12 January 1996 from the appellant's mobile phone to Mr Moore's mobile phone. 24 The appellant's case was that he denied any knowledge of cannabis, and that his understanding was that what he was involved in was a legitimate transaction for the importation of transformers. His sworn evidence was that he had been living in the Philippines since about 1988 or '89, following the breakdown of his marriage and his leaving Australia. In late 1995, he said, he was introduced to Stephen Moore by his friend Mark Dowsley, and he agreed with them to take part in a transaction involving the importation of transformers into Australia, in which the appellant was to invest $20,000. 25 The three transfers totalling $15,000 in late 1995, the appellant said, were on account of this investment of $20,000 which he was to make. In relation to the documents and other material found in the Mitsubishi vehicle, the appellant's evidence was that he used the name Frank Barnett and the licence in that name so that his wife could not find him. The tape with the Dynasty Inn letterhead document was for wrapping poles for night club, this being to rebut a suggestion by the Crown that it was a sample taken by the appellant to compare with tape on the outside of the carton, to make sure it had not been opened by anyone on the way. 26 The appellant's evidence was that the Estel invoice had been given to him by Mr Moore in Bangkok and that Mr Moore asked him to fax it to Robert Thompson, so that that was why the appellant had written on it. The appellant's evidence was that the facsimile message from Kalbo concerned a deal in relation to motor cycle components. 27 The appellant said that he obtained the airway bill number in a telephone call around 8 or 9 January. His evidence was that he went to Thailand in mid December 1995 to arrange sand blasting for dancing poles in night clubs. He gave evidence that around this time he saw transformer cases at a meeting with Mr Dowsley at the Dynasty Inn, and on that occasion he picked up a box with a transformer case in it. 28 He said he came to Australia on 6 January 1996 to see his family. He hired the car on 7 January 1996 because he was finding it too cold riding round on his motor cycle. He said he sent the money to Mr Dowsley on 8 January 1996 so that Mr Dowsley could come to Australia for the purpose of promoting the sale of transformers in Brisbane. He said he came to Sydney overnight between 11 and 12 January, partly to look at a motor cycle, and partly to collect two transformers and take them back to Brisbane where Mr Dowsley was to take them and promote the sale. 29 He gave evidence that he was told on 12 January by Mr Moore that the transformers had arrived, and that he told Mr Moore that he was at the Bourbon and Beefsteak Bar with Mr Hutton. When Mr Moore came there, Mr Hutton offered to put the boxes in the appellant's car because the appellant had cellulitis in his leg. The appellant said that when he got to his car he realised he needed a Ventolin spray and reached back from the front seat through a hatch in the rear seat to get it from a coat in the boot, pushing aside a box in the boot which was in the way. 30 Now, in this account of the overall circumstances of the case and the appellant's evidence, I have left out some matters specifically relating to grounds of appeal, which I will deal with when I come to deal with the particular grounds. 31 The grounds of appeal fall into four areas. 32 The first area concerns evidence given by a Federal agent, Mr Carnell, and a deposition taken at committal proceedings from a Federal agent Yarrow concerning what occurred at the time of the appellant's arrest. 33 The second general area concerns directions, or lack of directions, by the trial judge concerning lies. The third area concerns a refusal of applications by the applicant concerning the cross examination and recalling of witnesses. The fourth area concerns criticism by the trial judge of the defence counsel; and the fifth area concerns the application for leave to appeal on sentence. I will deal with these areas in turn. 34 In relation to the first area, the Federal agent Carnell gave evidence that when he approached the appellant's vehicle to arrest the appellant, he called out, "Federal Police. Put your hands out of your window now" and pointed his revolver in the direction of the appellant. According to Mr Carnell the appellant immediately reversed his vehicle into an unknown vehicle which had stopped in the lane behind him, collided with a loud bang. 35 In cross-examination, Mr Carnell said he has not seen any damage caused to either vehicle. No other officer either saw the reversing or heard a collision or saw any damage. Some testified that they did not see any damage. Mr Carnell also gave evidence that at the time of the arrest the appellant said, "My name is George. What is the problem, officer?"; and that immediately after the arrest, in answer to the question, "Do you have any weapons in the vehicle?" the appellant said, "No, I didn't put any drugs in the vehicle." 36 As regards Federal agent Yarrow, the Crown Prosecutor announced in court on the second day of the hearing that he had been advised at the end of the previous day that Mr Yarrow was absent from Australia. In fact, that he was stationed in Cyprus with the United Nations Peace Keeping Force. An application was made to have his deposition admitted pursuant to section 112 of the Criminal Procedure Act, which is in the following terms: 112(1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent's life, or (ii) is absent from Australia, (b) that the deposition was recorded: (i) by or in the presence of the justice before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent, (c) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent when the deposition was taken and was not represented by counsel.