New South Wales Court of Criminal Appeal CITATION : Regina v Hemmelstein [2001] NSWCCA 220 FILE NUMBER(S) : CCA 60553/99 HEARING DATE(S) : 06/03/01 JUDGMENT DATE : 6 June 2001 Regina PARTIES : v Joel Mark Hemmelstein JUDGMENT OF : Meagher JA at 1; Hulme J at 13; Smart AJ at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0756 LOWER COURT JUDICIAL Kinchington DCJ OFFICER : COUNSEL : Applicant: Mr S Odgers Crown: Mr C O'Donnell SOLICITORS : Applicant: Legal Aid Commission Crown: Commonwealth Director of Public Prosecutions CATCHWORDS : Criminal law - application for leave to appeal against conviction - knowingly importing a commercial quantity of cocaine - wrongful exclusion of evidence - relevance and admissibility of evidence - appeal dismissed. LEGISLATION CITED : Evidence Act 1995, ss 55, 65 (1),(8)(a), 72, 165 (1)(a) Customs Act 1901, s233B CASES CITED: Sugden v Lord St Leonards (1876) LR 1 PD 154 Walton v The Queen (1989) 166 CLR 283 DECISION : Application dismissed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60553/99 MEAGHER JA HULME JA SMART AJ REGINA v JOEL MARK HEMMELSTEIN JUDGMENT FACTS H was convicted of knowingly importing a commercial quantity of cocaine and sentenced to nine years imprisonment with a non-parole period of six years. The appellant relied on three grounds of appeal, all relating to the exclusion of evidence at trial. The first ground was that the trial judge wrongfully excluded evidence of out of court representations made by H to his brother as to his intention to play golf in Australia. The second ground of appeal was that the trial judge erred in excluding a note written by H's solicitor, Mr Murphy, regarding a Mr Simonds. The third ground was that the trial judge erred in excluding evidence from H's brother concerning a telephone call. HELD per Meagher JA & Hulme J, Smart AJ dissenting: (1) Appeal dismissed. Per Meagher JA: All of the evidence the subject of appeal was inadmissible. Per Hulme J: The first ground of appeal is made out. However, this evidence can have added no or so little significant weight to the appellant's case that the exclusion of this evidence has not deprived him of any chance of acquittal otherwise open. There has been no substantial miscarriage of justice. Per Smart AJ: The appellant should succeed on all three grounds of appeal. The rejected evidence would have made the defence more credible. I would allow the appeal, quash the conviction and order a new trial. Per Hulme J & Smart AJ, Meagher JA dissenting: (i) Evidence of the appellant's intention to play golf was both relevant and admissible. The Crown, by its conduct of the prosecution made the state of mind and intention of the appellant a fact in issue. Per Meagher JA: Evidence of hearsay about intentions to play golf would not rationally affect the assessment of the fact in issue; ie whether H had knowledge that he was carrying cocaine. Per Meagher JA, Hulme J agreeing, Smart AJ dissenting: (ii) The second ground of appeal must fail. The evidence of the note had no relevance to the facts in issue. Per Smart AJ: Evidence of Mr Murphy as to statements made to him by Mr Simonds is admissible pursuant to Evidence Act 1995, s65(8), subject to a warning under s165(1)(a) of the Act. Per Meagher JA, Hulme J agreeing, Smart AJ dissenting: (iii)The third ground of appeal must fail. Per Smart AJ: The evidence was admissible pursuant to s65(8) of the Act, subject to a warning under s165(1)(a). ORDERS 1 Appeal dismissed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60553/99 MEAGHER JA HULME JA SMART AJ Wednesday, 6 June 2001 REGINA v JOEL MARK HEMMELSTEIN JUDGMENT 1 MEAGHER JA: This is an application by Mr. Hemmelstein for leave to appeal against a trial sentence of 9 years (six years non-parole) imposed on him by Kinchington DCJ on 9 July 1999, after a trial before a jury lasting several days and resulting in a finding of guilt. The charge was knowingly importing a commercial quantity of cocaine into Australia. 2 The appellant has not appealed on severity. His learned senior counsel, Mr SJ Odgers SC, conceded that the evidence against the applicant justified a finding of guilty; indeed, that it was "strongish". 3 When Mr Hemmelstein arrived at Mascot Airport on 27 July 1997, there was among his luggage a golf bag (containing golf clubs), which was itself contained in a hard sided golf carry case. In the false bottom of that carry case, 3 packages of cocaine were found containing 2152 grams of cocaine, with an estimated street value of over a million dollars. 4 He was arrested and questioned about the drugs. He denied any knowledge of them. That was the position he maintained at trial. In order to explain how the drugs may have got into the golf case without his knowledge, he provided an account relating to a man he called "Jim Simonds". He claimed that Mr Jim Simonds was a property developer whom he had met some years before. They played golf together, and Mr Hemmelstein said Mr Simonds had given him the golf carry case. Mr Simonds is said to have looked after Mr Hemmelstein's clubs on a number of occasions. He had given financial assistance to Mr Hemmelstein (although one might ask oneself why?) which enabled him to come and play golf in Australia in April 1997. He then took Mr Hemmelstein's clubs back to the US after that visit. Mr Hemmelstein then returned to the US, where he recovered his golf clubs. Mr Simonds then, a second time, financed a trip by Mr Hemmelstein to Australia. He came here to play golf, nothing more. That is Mr Hemmelstein's story. 5 That is a most unlikely story. It is the only one the jury had to consider. The issue was whether Mr Hemmelstein knew that he was carrying cocaine in his golf bag. 6 The Crown case against him was that he did know. The Crown relied on a multiplicity of circumstances, including the following: · the significant quantity and value of the cocaine in the golf carry bag; · the appellant's possession at the airport of the golf carry bag; · the appellant's statement to Rajagopalan that he packed each of t he items of luggage found in his possession, including the golf carry bag; · the appellant's statements that he was on a golfing holiday; · the fact of the appellant travelling alone; · the appellant's statement to the AFP agents that a friend bought his airline ticket but he did not wish to identify that person; · the presence of the dirty clothes in the bottom of the golf carry bag; · the appellant's evidence that the golf shoes found in the bag did not belong to him but to Simonds; · the unused state of some of the golfing equipment including the balls, tees and glove; · the discrepancy between the elaborate golf carry bag and the relatively cheap clubs, which had been purchased by the appellant for US$150.00; · the absence of any brochures or other documents about golfing in Australia, the only golfing literature being the two golfing magazines; · the absence of any golf type clothing and golf shoes of his own on the appellant's luggage; · the screwdrivers in the golf bag, which were capable of fitting the screws in the plate under which the cocaine was concealed; · the appellant's possession of keys to the golf carry bag; · the circumstances of the relationship between the appellant and the man Simonds including the payment of the appellant's airfares to Australia by, it would seem, Simonds on two occasions; and · the unlikelihood of the appellant being selected as an innocent dupe to carry such a valuable consignment into Australia [AB 259-261] ; 7 In putting these matters to Mr Hemmelstein, with a view to demonstrating that his story was bogus, the Crown put to him (and one can hardly wonder) that he had no intention to play golf in Australia. This may have been so, but it was to some extent beside the point. If he had no intention of playing golf, an inference of knowledge could have easily been drawn; but even if he had such an intention, that did not negative his knowledge of the cocaine. One can knowingly import cocaine and still find time to slot in a little golf. As the learned judge said, the jury had to decide whether the "only reason or prime reason" to make the trip to Australia was to import the cocaine. 8 The defence sought to lead evidence of out of court representations made by Mr Hemmelstein to his brother about his intention to play golf when he came to Australia on the second occasion. At common law, of course, such representation would be hearsay. By s 72 of the Evidence Act (1995) that objection is negated. Nor is it rendered inadmissible as a prior consistent statement: s 55 (2). But as the Crown contended, that is not the end of the story. Evidence which is relevant can only become admissible when "if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the possibility of the existence of a fact in issue in the process" (s55 (1)). There was only one fact in issue: knowledge. Evidence of remote hearsay about intentions to play golf would not rationally "affect" that issue. The first ground of appeal, which was that his Honour was wrong in rejecting this evidence, must therefore fail. 9 The second ground of appeal was that his Honour erred in rejecting a note written by Mr Christopher Murphy, Mr Hemmelstein's solicitor, to the effect that someone calling himself "Jim Simonds" visited him, paid him US$18,00 on behalf of Mr. Hemmelstein's costs, and said: "That it was impossible that Joel's fingerprints could be on the "packaging" of the cocaine found in his possession. When I pressed him as to how he knew he hinted that he put them there." 10 "Joel" is, of course, Mr Hemmelstein. How that evidence could, if admitted, rationally affect anything is nearly impossible to see. To begin with, it is nearly meaningless. What is meant by "hint"? But even if it were an unambiguous representation, it would have no relevance: an allegation that Mr Hemmelstein knew he was carrying cocaine is not inconsistent with Mr Jim Simonds putting his fingerprints on the "packaging". 11 The third ground of appeal verges on the ludicrous. It is that his Honour erred in excluding evidence from Mr Hemmelstein's brother that somebody whose initials were "J. S." had telephoned him to say that Mr Hemmelstein was not guilty. This submission only has to be stated to reveal its absurdity. 12 This application should be dismissed. 13 HULME J: In this matter, I have had the advantage of seeing the Reasons for Judgement of Meagher JA in draft form and can accordingly be brief. 14 As contemporaneous statements of intention and notwithstanding their hearsay nature, the out of court representations made by the Appellant to his brother to the effect that he had the intention of playing golf in Australia were, if relevant, admissible,. They were admissible at common law - see Sugden v Lord St Leonards (1876) LR 1 PD 154 at 227, 242 and 251 and under Section 72 of the Evidence Act. 15 I agree with Meagher JA that an intention to play golf in Australia was not inconsistent with the guilt of the Appellant on the charge he faced. However, the Appellant's reason or reasons for coming to Australia were an issue in the case. The rejection or non-acceptance of the Appellant's story that his trip here was motivated by golf was calculated to increase his prospects of conviction. Furthermore, the Crown Prosecutor on two occasions suggested in cross examination of the Appellant that he wasn't "here to play golf at all". Thus evidence of his intention to play golf was both relevant and admissible. 16 I agree with Meagher JA and for the reasons he has advanced that the pieces of evidence the subject of the second and third grounds of appeal were inadmissible. 17 In defence to the reasons of Smart AJ, I would add this. I do not doubt that hearsay statements including those by a third person confessing his guilt to the crime may in some circumstances be able to rationally affect (directly or indirectly) the assessment of the probability of the existence of a face in issue in the proceedings within the terms of s55 of the Evidence Act and otherwise be admissible. My view that the statements the subject of the second and third grounds here are not admissible depends on the totality of their hearsay nature, their terms, what is known of the maker(s) and the totality of circumstances surrounding the making of the statements. 18 I turn then to a consideration of the proviso to Section 6 of the Criminal Appeal Act. Meagher JA has listed the circumstances relied on by the Crown. They indicate that, at the least, the Crown case was strong. The Appellant gave evidence denying knowledge of the drugs, the subject of the charge. Demonstrably the jury did not believe him. It was part of the Crown case that the playing of golf, whether or not it was genuinely intended, was but a cover for the drug importation. Evidence, whether from the Appellant's brother or otherwise that the Appellant had previously told his brother he intended to play golf can have added no or so little significant weight to the Appellant's case that the exclusion of that evidence has not deprived him of any chance of acquittal otherwise open. I am satisfied that there has been no substantial miscarriage of justice and that the appeal should be dismissed. 19 SMART AJ: Mark Hemmelstein seeks an extension of time within which to appeal against his conviction by a jury of importing into Australia on 22 July 1997 prohibited imports to which s 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine. He was sentenced to 9 years imprisonment with a non-parole period of 6 years. 20 Initially, he sought leave to appeal against the severity of his sentence but that application was abandoned. It appears that the original notice of appeal went astray either in the gaol system or the court system. The time within which the applicant may appeal should be extended. I turn to consider his appeal. 21 The facts have been summarised in the judgment of Meagher JA. That summary reveals that the Crown case was a strong one. 22 The critical question was whether the appellant was aware of the presence of the drugs imported in the carry case of his golf bag. The Crown contended that the only rational inference to be drawn from the circumstances was that he must have known of the presence of the drugs. 23 Appeal Ground 1 reads: The trial judge erred in excluding evidence regarding representations by the appellant as to his golfing plans. 24 The appellant sought to lead evidence of a conversation with his brother before he came to Australia in July 1997 in which he told his brother that he enjoyed being in Australia and enthused about the number of great golf courses in and around Sydney on which he could play without being a member and the lack of expense. Most seemed to be municipal courses. 25 This evidence would not usually be admissible. However, counsel for the appellant submitted that it was admissible and relevant because of the way in which the Crown had conducted its case. It appears from the summing-up that the Crown was at pains to rebut the story which the applicant had told the police and Customs, namely, that he was on a golfing holiday (SU25-27). The Crown relied on a series of circumstances which the judge enumerated. The judge said (SU26): " The Crown says from all the circumstances you will be able to infer that what he says about his golfing trip was a front, that he was not a golfer". 26 At SU48 the judge referred to the Crown Prosecutor's submission on that: " You will reject his version that he gave in his evidence about coming to Australia to play golf and that you will conclude that the only reason or the prime reason he came to Australia was to bring in the narcotic substance, the cocaine found in his bag". 27 There was extensive cross-examination of the appellant to the effect that he was not coming to Australia to play golf at all. Indeed, this was put to him directly. As earlier mentioned, the critical issue was whether the applicant knew that he had narcotic goods in the golf case. Although the Crown could, without disadvantage have conducted its case without alleging that the accused had no intention of coming to Australia to play golf it did not do so. The Crown having raised the issue of the appellant's intention and state of mind as to the playing of golf, he was entitled to lead evidence in rebuttal. Despite the differing views in Walton v The Queen (1989) 166 CLR 283 as to the basis upon which the statements are admitted it is clear enough that relevant out of court statements are admissible to prove the maker's knowledge or state of mind in a case where that knowledge or state of mind is itself a fact in issue or provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue. In the present case the Crown by its conduct of the prosecution made the state of mind and intent of the appellant a fact in issue. Thus the statement of the appellant to his brother was admissible - see ss 55 and 72 of the Evidence Act (1995). 28 I appreciate that the Crown put that the appellant's primary purpose in travelling to Australia was to import the cocaine. It would suffice if one of his purposes was to import cocaine. However, none of this means that the appellant is not entitled to meet the case put by the Crown when it goes further than necessary. 29 The prosecution appears to have thought that the appellant's state of mind and intent were relevant to the question of his knowledge. 30 Appeal Ground 2 reads: The trial judge erred in excluding evidence of the contents of conversations between Christopher Murphy and a man named James Simonds. 31 The conversation occurred after the arrest of the appellant. A statement by Mr Murphy was placed before the judge. That statement was based on contemporaneous notes made by Mr Murphy. The judge allowed Mr Murphy to give evidence of meetings he had with Mr James Simonds from the United States of America and of telephone conversations but not the content of what was said. The judge also permitted Mr Murphy to give evidence that Mr James Simonds had paid $US1800 to his firm on account of the appellant's legal costs. It was the appellant's case that Mr Simonds gave him the case, bag and clubs which he brought to Australia. 32 Curiously, Mr James Simonds appeared in Mr Murphy's office on 23 July 1997, being the day following the appellant's arrest, paid the $US1800 mentioned and left a contact telephone number at the Sebel Town House. Mr Simonds telephoned later that day and on Mr Murphy stating that he was going to the gaol to see the appellant on the following day, stated that he would like to visit the appellant in gaol with Mr Murphy. On 24 July 1997 Mr Murphy visited the appellant in gaol. 33 On 25 July 1997 Mr Simonds went to Mr Murphy's office. He told him that the appellant stated that he was not guilty, knew nothing about how the drugs got into his luggage and believed that his bag may have been tampered with by airport staff at Reno. Mr Murphy told Mr Simonds that he would be pushing for a full fingerprint and DNA test and whatever else could be done to show that the appellant was not involved. 34 Later Mr Simonds telephoned and advised Mr Murphy that he had been advised against going to the gaol and that he would be out of town and not contactable. 35 On Monday 28 July 1997 Mr Simonds again telephoned Mr Murphy and advised that he would not be going to court on Tuesday. He was leaving Australia at 3.30 pm on Tuesday. At about 9.11 am on Tuesday Mr Simonds telephoned and advised that the appellant would not have packed drugs in his luggage. 36 Mr Murphy stated that on 1 August 1997 Mr Simonds telephoned and advised that he was travelling and would not be able to be in touch and that Mr Murphy should keep in touch with the appellant's family. Mr Simonds stated that it was impossible that the appellant's fingerprints could be on the packaging of the cocaine found in his possession. Mr Murphy stated that when he pressed Mr Simonds as to how he knew that, he hinted that he put them there. Mr Murphy asked if his (Mr Simonds') fingerprints could be found on them (the packaging) and were his prints on record. Mr Simonds replied that he did not have a criminal record and added "I was in the Service". It would have been better if Mr Murphy's file note had recorded what was said that led him to conclude that Mr Simonds was hinting that any fingerprints on the package containing the cocaine were his. The matter could have been developed if thought necessary. 37 On 3 September 1997 Mr Murphy was contacted by telephone by Mr G Niespolo of Sideman & Bancroft, attorneys, San Francisco on behalf of Mr Simonds. Mr Murphy told Mr Niespolo what the appellant wanted from Mr Simonds. Nobody heard from him or his representative. At the trial Mr Murphy detailed the extensive but unsuccessful steps which had been taken to locate Mr Simonds and get him to assist. Mr Simonds appears to have had good reasons to make himself unavailable. 38 The evidence called on behalf of the appellant would have been considerably stronger if all the evidence of Mr Murphy as to what Mr Simonds had said and done had been led. That evidence suggested, inter alia, that Mr Simonds had placed the cocaine in the golf bag carry case. The inference was available that this was without the consent or knowledge of the appellant. While a jury was likely to accept Mr Murphy's evidence, supported as it was by contemporaneous notes and the payment on account of legal costs by Mr Simonds, it does not necessarily follow that the appellant did not know that there was cocaine in the golf bag carry case, but the materials rejected point in that direction and make the difficult defence of the appellant more credible. If Mr Simonds put the cocaine in the golf bag carry case he may well not have told the appellant. 39 Section 65(1) of the Evidence Act provides that s 65 applies in a criminal proceeding if a person who made a previous representation is not able to give evidence about an asserted fact. The statement by Mr Simonds would have amounted to a previous representation - see the definitions of previous representation and representation in the Dictionary to the Evidence Act. 40 Section 65(8)(a) provides that the hearsay rule does not apply to oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made. 41 This important provision remedied a defect in the existing law as administered by the courts in this State. Hitherto, it had been difficult to adduce statements by a person other than the defendant to another that the speaker had committed the crime with which the defendant was charged, or had or had not done certain acts, which meant that the defendant had not committed the crime or that it was unlikely that he had done so. Sometimes these statements pointed to a third party having committed the crime. The person making the previous representation may not have been available for a variety of reasons including refusing to come to court or refusing to give evidence. In England, as a matter of practice objection was not usually taken to a defendant leading hearsay evidence which was capable of being believed when it tended to show that a defendant was not guilty. A stricter approach was taken by the prosecution in this State. Section 65(8) brings New South Wales into line with the English practice. 42 Section 65(8) involves a recognition of the fact that a defendant may not have the resources to obtain evidence and procure the attendance of witnesses. If the witness who is able to give the primary evidence is overseas and declines to come to Australia, the problem is magnified. It is not uncommon for a person, who informally concedes that it was he not the defendant who committed the crime or who informally makes concessions having that effect, to be unwilling to come to Court to give evidence to that effect. There are the further cases of the speaker dying or "going underground" for a period. 43 I think that the evidence of Mr Murphy as to statements made to him by Mr Simonds is admissible pursuant to s65(8). That material bolsters the defence case and makes it seem not so improbable. As the evidence is hearsay the judge would have to give the jury a warning pursuant to s 165(1)(a) and explain the reasons why the hearsay evidence may be unreliable. 44 Appeal Ground 3 reads: The trial judge erred in excluding evidence of a conversation between Neal Hemmelstein and "Jim" soon after the arrest of the appellant. 45 It was sought that the appellant's brother, Dr Neal Hemmelstein, give evidence that shortly after the appellant's arrest he received a telephone call from a man who identified himself as Jim, gave his initials as JS and stated that he was a golfing partner of the appellant. Dr Hemmelstein wrote: "I told him I knew he (the appellant) had a golfing friend named Jim Simons (Simonds). He sounded very nervous and told me that he knew Joel was in gaol. He also told me that Joel had done nothing wrong. He told me he had contacted a defence lawyer in Sydney named Christopher Murphy to defend Joel. He gave me Murphy's phone number, said he had given Murphy a little money and that I should call this lawyer. This man did not stay on the phone very long and I have not heard from him again." 46 The contents of the telephone call when taken with the evidence of Mr Murphy tend to suggest that the man who telephoned Dr Neal Hemmelstein was Mr Jim Simonds. I think that this is established as a matter of inference on the balance of probabilities. It is hard to think of anyone else who could have uttered the words deposed to by Dr Hemmelstein. In the context the statement that Joel had done nothing wrong is not without significance. It is capable of meaning that the appellant did not place the drugs in the golf bag carry case or know that they were there. This is probably so when this remark is coupled with Mr Simonds' statements to Mr Murphy. I think that this evidence was admissible pursuant to s 65(8) of the Evidence Act 1995, but it would have to be the subject of a warning under s 165(1)(a). It is important not to look at the various contested statements in isolation. They should be taken together. 47 This is not a case in which the proviso should be applied. The defence of the appellant was not easy to accept. The rejected evidence would have made the defence more credible in that it tended to point to someone else having put the drugs in the false bottom of the golf bag carry case and a reasonable possibility that the accused did not know that the drugs were there. Some of the material in the case tended to suggest that the accused was, at times, a little unworldly. I am not able to say that the rejected evidence would have made no difference. It would, of course, have been open to a jury either to reject the evidence or take the view that it was of no consequence. 48 I would allow the appeal. I would quash the conviction and order a new trial. ****** 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.