New South Wales Court of Criminal Appeal CITATION : R v CERULLO AND SOUKOULIS [2003] NSWCCA 201 HEARING DATE(S) : 27 March 2003 JUDGMENT DATE : 31 July 2003 JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Buddin J at 81 DECISION : In each case; i) Dismiss the appeal against conviction; ii) Grant leave to appeal against sentence ; iii) Dismiss the appeal against sentence CATCHWORDS : Criminal law - Customs Act s233B - knowingly concerned in the importation of(not less than a traffickable quantity) of cocaine - sentence of 12 yrs imprisonment not excessive - Evidence - sufficient nexus to make it more than propensity evidence - errors by counsel - opinion evidence as to competence unlikely to be admissible Regina PARTIES : Toni Cerullo Dimitrios Soukoulis FILE NUMBER(S) : CCA 60059/02; 60060/02 COUNSEL : Crown: GJ Bellew Appellant: BKH Donovan QC SOLICITORS : Crown: Commonwealth Director of Pubic Prosecutions Appellant: Tully & Co LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : 38 IN THE COURT OF CRIMINAL APPEAL 60059/02 60060/02 SPIGELMAN CJ HULME J BUDDIN J 29 July 2003 R v Toni CERULLO R v Dimitrios (Jim) SOUKOULIS Judgment 1 SPIGELMAN CJ: I have read the judgments of both Hulme J and Buddin J in draft. I agree with Buddin J on Ground 2. Otherwise, I agree with Hulme J and with Buddin J's additional observations on Ground 10. I agree with the orders proposed by Hulme J. 2 HULME J : On 26 September 2001, after a trial lasting a number of days, the abovenamed Appellants were convicted of being, between about 19 November 1999 and about 23 December 1999, knowingly concerned in the importation into Australia of prohibited imports, namely narcotic goods consisting of a quantity of cocaine being not less than the trafficable quantity thereof. 3 On 8 February 2002 Judge Hock sentenced each of the Appellants to imprisonment for 12 years including a non-parole period of 8 years. 4 Both Appellants have appealed against their conviction and sought leave to appeal against sentence. The grounds of appeal of each are in the same terms and are as follows:- 1. The jury's verdict was unreasonable. 2. Her Honour erred in admitting Exhibit J on the trial being a telephone call between the accused Soukoulis and a person named Alex on 25 November 1999 at 12:16:13 hours. 3. Her Honour erred in: (a) admitting; and (b) not, when directing the Jury, withdrawing from their consideration evidence of the electronic transfer of Australian $28,885.40 by Eleftheria Pappas in Adelaide to Gigel Bosca in Germany on 16 December 1999. 3A Her Honour erred in not, when directing the Jury, withdrawing from their consideration, evidence of the electronic transfer of Australian $18,743.00 by Eleftheria Pappas in Adelaide to Toni Raffella Racerullo in Germany on 16 December 1999. 4. Her Honour erred in directing the jury as to a not guilty verdict. 5. Her Honour erred in directing the jury as to an element of the charge, namely being knowingly concerned in the importation of prohibited goods. 6. Her Honour erred in directing the Jury that all of the evidence admitted on trial was available to be used by them against the accused Cerullo and the accused Soukoulis. 7. Her Honour erred in directing the Jury as a matter of practical reality the verdict in respect of the accused Cerullo would be the same as the verdict in respect of the accused Soukoulis. 8. Her Honour erred in not fully or adequately putting the defence case to the jury. 9. The trial miscarried as a result of inadequate Counsel for the Appellant. 10 The sentence imposed upon the Appellant was manifestly excessive. 5 In written submissions filed on behalf of the Appellants, ground 1 was abandoned. However, before proceeding to the other grounds it is convenient to provide an outline of the Crown case. On 23 December 1999, a parcel containing cocaine was delivered to one Szelenczy at premises at Rose Bay, Sydney. There was evidence that the Appellants were there at the time although they left within minutes thereafter. Shortly after that, the police raided the premises and found the parcel, still unopened, and a sum of $1,000 on a table in the lounge room. Mr Szelenczy had a further $1,100 in his hand. There was evidence from Detective Critchlow (who was encouraged, without objection, to give a deal of hearsay evidence) that the undercover agent who had delivered the parcel had not seen the money there at the time of delivery but there was no evidence as to the extent of the latter's opportunity for observation. It seems that the parcel had been posted from Frankfurt, Germany at 8pm (Frankfurt time) on 15 December 1999. The name of the sender on the airways bill for the parcel wasfictitious. 6 Mr Szelenczy had only recently returned to Australia from Frankfurt. It was accepted that he had left Frankfurt on 15 December 1999, at 11.55 pm (Frankfurt time) and had himself posted the parcel at about 8 pm (Frankfurt time). 7 In circumstances described in more detail below, on 16 December in Adelaide an associate of the Appellants received from Mr Soukoulis' accountant, a cash cheque in the sum of $22,300. The funds were, in effect, debited against funds of one or both of the Appellants. On the same day in transactions extending over some hours but concluding at about 7 pm, associates of the Appellants sent from Adelaide two amounts of money, one of approximately $19,000 and the other approximately $28,000. The funds were addressed separately to Toni Raffela Racerullo and Gigel Bosca, in Frankfurt. 8 Mr Szelenczy's ticket to Frankfurt, then Budapest, then Frankfurt and then Sydney had been tentatively booked by Ms Cerullo, accompanied by Mr Szelenczy, in Sydney on 19 November 1999 when she also paid a deposit of $100 for it. There was, in addition, evidence that on 23 November 1999 Ms Cerullo made a travel booking for herself and the second Appellant from Melbourne to Frankfurt and return. On 8 December 1999 Mr Soukoulis cancelled his booking for a reason irrelevant to the proceedings. The Flight Schedule envisaged Ms Cerullo arriving in Frankfurt on 8 December and departing from Frankfurt at 7.40 pm on 17 December 1999. The ticket suggests these dates and times were adhered to. Ms Cerullo's passport shows she left Frankfurt on 17 December. 9 Also on 23 November, at about 11 am, Ms Cerullo sent a fax from Melbourne to Mr Soukoulis in Sydney which included the words:- "Or: Lets meet at La Meridien Park Hotel centre of town. 10.30 pm 8 Dec. No matter what! TICKET: He should pick up then delay it. Then cancel it. 40% loss average." 10 The fax also contained a list of hotels in Frankfurt. Le Meridien was one on the list. Later that day, Mr Szelenczy met Mr Soukoulis in Sydney and then left Sydney for Europe between about 3 and 3.30 pm. 11 Shortly before the parcel of cocaine was delivered to Mr Szelenczy, he was heard to say to the Appellants, "I've received a phone call. The parcel will be 20 minutes". A few minutes later the three caught a taxi to Mr Szelenczy's flat. Ground 2 Her Honour erred in admitting Exhibit J on the trial being a telephone call between the accused Soukoulis and a person named Alex on 25 November 1999 at 12:16:13 hours. 12 Alex was not otherwise identified in evidence in the trial. It was he who had called Mr Soukoulis. It is unnecessary to set out the totality of the conversation. A reading of the transcript suggests strongly, if not inevitably, that the participants in it were being very circumspect in what they said. However, the conversation did include the following (M1 is Mr Soukoulis; M2 is Alex):- M1 Ah beautiful ah yeah the stock has it come in (wds) M2 No waiting hopefully next week it will be here JIM I've fucking been delayed. M1 Ah beautiful. M2 Because of the fucking earthquake and I've got so much stock to come and I've got people waiting. M1 Yeah yeah. M2 Hopefully next week will be here. M1 Ah beautiful M2 Yeah … M2 You know do you know what I want. M1 Come one. M2 I want – pause – you see how our mums prepare that nice meal not the kind that we eat with coffee but that white cappuccino but it must be white. M1 Laughs – yes yes. M2 Do you understand. M1 Yes I understand. M2 Does it exist. M1 Ah. M2 Because I've got somebody you see when I went to Sydney last week. M1 Yes. M2 I got fucked around up there they told me it was from the good stuff. M1 Yes. M2 And I turned up there and it was the same coffee. … M2 Because I have somebody that has the (fine stuff/coin) so that he can take all of it and go on a holiday. M1 Yeah Yeah. M2 But the colour of it must be nice. M1 Okay there's no problems but not now not now. M2 Not yet hey . M1 Nope no. M2 Alright if there's anything telephone me immediately. M1 Oh straight away straight away. 13 The passages in bold were spoken in Greek. The other passages were spoken in English. 14 No evidence was led directed specifically to the meaning of "white cappuccino". Nor was there any demonstrated link between the subject of the telephone call and the importation the subject of the charge against the Appellants. 15 On behalf of the Appellants it was argued that even if the inference was drawn that "white cappuccino" was a reference to cocaine there was nothing to link the subject of the conversation with the importation with which the Appellants were charged and that, at worst, the telephone call indicated simply a propensity on the part of Mr Soukoulis to deal in a prohibited drug of some kind. The Crown, relying on Harriman v R (1989) 167 CLR 590 – see also R v Quach [2002] NSWCCA 519, submitted that the evidence was admissible on the basis that it tended to confirm the involvement of Mr Soukoulis in an illegal enterprise. 16 Although I would not embrace the way in which the Crown advanced the matter, the evidence was admissible and the cases to which I have just referred support that conclusion. The link between the conversation and the cocaine the subject of the charge against the Appellants is provided by:- (i) the reference "white", and evidence in the trial that the cocaine found in Mr Szelanczy's unit was white, (ii) the statement that Mr Soukoulis did not have what was being sought "now" and the clear inference that he would have some in the future – a future one might infer was not so distant as to make his possession of what was being discussed of no interest to Alex, and (iii) the timing of the conversation relative to other events including the flight bookings on 19 and 23 November, the despatch of the cocaine from Frankfurt on 16 December and its arrival in Sydney on 23 December 1999 17 Given that the issue was whether the Appellants were involved with the importation of a drug, commonly white, with which they were, very soon after its delivery, in close proximity, the statement by Mr Soukoulis three weeks or so before, clearly susceptible of the interpretation that he expected to, or might, be in possession of a white substance apparently referred to by a pseudonym in the foreseeable future was both relevant and clearly went further than indicating the propensity suggested. To adapt the words of Toohey J in Harriman v R at 609, "it was relevant to the likelihood" that the Appellant's physical proximity to the cocaine on 23 December was because he was involved in the importation of it rather than, for example, pure chance. 18 The question whether the evidence was admissible against Ms Cerullo also, can be left until I direct attention to Grounds 6 and 7. Grounds 3 & 3A 3. Her Honour erred in: (a) admitting; and (b) not, when directing the Jury, withdrawing from their consideration, evidence of the electronic transfer of Australia $28,885.40 by Eleftheria Pappas in Adelaide to Gigel Bosca in Germany on 16 December 1999. 3A Her Honour erred in not, when directing the Jury, withdrawing from their consideration, evidence of the electronic transfer of Australian $18,743.00 by Eleftheria Pappas in Adelaide to Toni Raffella Racerullo in Germany on 16 December 1999. 19 A little more detail of these transfers and contemporaneous events is appropriate. There was evidence from a Ms Golding, an agent for Travelex Australia Pty Ltd that on Thursday, 16 December 1999 at about 3pm she was approached by a Mr Pappas who indicated that he wanted to send two sums of money to two persons in Germany. Each sum was contained in a calico bag, in one case consisting of some $19,000 in cash and the other about $30,000 in cash. Ms Golding was not sure of the precise amounts or which of the recipients was to receive which sum. Mr Pappas was unable to provide the identification which Ms Golding required, made a telephone call and some time later a woman who gave her name as Eleftheria Pappas attended, completed the forms which were ultimately used in connection with the transfers. Because of a number of complications to which it is unnecessary to refer further, the transaction was not completed until about 7.10pm Adelaide time. As has been said, the nominated transferees of the funds were described as Toni Raffella Racerullo and Gigel Bosca in Frankfurt, Germany. 20 A Mr Caracoussis, an accountant, also gave evidence. He had known Mr Soukoulis all his life and was acting or had acted for both Appellants. He gave evidence that at some stage Ms Cerullo had asked for, and been given, advice as to the method by which funds could be transferred to Germany. Mr Soukoulis was present. Mr Caracoussis also said that on 16 December 1999 between about 3 and 3.30pm he was requested by a Mr Atsikbasis to advance $22,300 and in fact did so by way of a cash cheque. Mr Atsikbasis appeared to be in a hurry and the transaction took some 5 minutes. The funds were provided by Mr Caracoussis himself but in circumstances where he had been authorised to draw on loan funds due within 24 hours over the security of some property owned by Miss Cerullo. 21 Mr Caracoussis also gave evidence that he believed Mr Steve Pappas, Mr Atsikbasis and Mr Soukoulis knew one another. 22 At 3.27 pm that day Mr Atsikbasis rang Mr Soukoulis and said that he was going to be delayed. Mr Soukoulis agreed to do something for Mr Atsikbasis. At 11.05 pm there was a further call initially between the two but then Mr Atsikbasis put Mr Pappas on the line. Mr Atsikbaisis and Mr Pappas informed Mr Soukoulis that the name of some person, later in the conversation identified as Mr Pappas' sister, was Eleftheria. Mr Soukoulis also asked whether Mr Pappas' name had a "Double PAS". 23 At 11.13 pm there was another conversation between Mr Soukoulis and Mr Atsikbasis. Its terms included the following (M1 was Mr Soukoulis and M2, Mr Atsikbasis):- "M1 Mate you guys are fuckin' abortions that what youse guys are between both of youse. M2 Why M1 Your fuckin' abortions you know what I've just realised you put both names together from the one. M2 (Wds) no we didn't. M1 You fucked up you fucked up. M2 (Wds) no we didn't. M1 No wonder no wonder things are fucked up mate you you you guys don't fuckin think – pause- last minute fuckin' things. M2 (We put 'em) separate mate. M1 You are clever who put them mate. M2 I put them. M1 One did M2 Yes M1 What does that tell you. M2 Yeah alright I understand what your saying." … 24 As has been said, the evidence showed that Mr Szelenczy posted the parcel of cocaine at about 8 pm and left Frankfurt at 11.55 pm (Frankfurt time) on 15 December 1999. There was uncontradicted evidence that Frankfurt was 10 hours behind the time in Adelaide, making the times of posting and departure 6 and 9.55 am on 16 December, Sydney time. 25 At the trial no objection was taken to the admission of the evidence of the transfer addressed to Toni Raffella Racerullo. That is not surprising when regard is had to the similarity in name of that recipient and Miss Cerullo, the fact that Ms Cerullo was in Frankfurt at the time the funds were transferred, and the fact that funds in which Ms Cerullo could fairly be regarded as having an interest were made available in cash at about the time that monies were being presented to Ms Golding for remission to Frankfurt. The evidence of the remission of funds addressed to Toni Racerullo was clearly admissible. And the similarity of circumstances between that transfer and the transfer addressed to Gigel Bosca means that the evidence of that transfer was admissible also, notwithstanding the name of the addressee. The use of pseudonyms or false names is a well known fact of life which the jury was entitled to take into account. 26 In reaching these conclusions I do not ignore the evidence that indicated that the money was transferred from Australia after the time at which the cocaine was posted and Mr Szelenczy would seem to have left Frankfurt. It would seem that initially the Crown had suggested that the funds transferred represented the cost of the cocaine to be imported although later the Crown seems to have been content to treat the evidence as merely one of the circumstances the jury were entitled to take into account on the issue of being "knowingly concerned". A suggestion from counsel to Detective Critchlow that the drugs business was not one in which credit was given was rejected. However the number and similarity in the timing of the events to which I have referred meant that the evidence the subject of this ground was admissible. In a case where the Crown relies on circumstantial evidence, it does not have to provide express proof of a specific link between all pieces of evidence. Ground 4 Her Honour erred in directing the jury as to a not guilty verdict. 27 The error the subject of this ground is highlighted in the following extracts taken from Her Honour's summing up. I refer to your joint decision because under our system of law, your verdict, whether it be guilty or not guilty, must be unanimous. We do not in this State recognise majority verdicts. Just as a verdict of guilty must be unanimous so must a verdict of not guilty. It is not the case that simply because you cannot agree that an accused is guilty that you find him or her not guilty. A finding that an accused is not guilty is just as much a finding that he is guilty , and in either case the verdict must be unanimous before it can be pronounced by you. This does not mean that you must all agree on the same reasoning for reaching your verdict. You may individually rely on different parts of the evidence, or place a different emphasis on parts of the evidence. But, whatever path you take to arrive at your decision, that final decision, either guilty or not guilty, must be unanimous before it becomes your verdict. 28 It was submitted that the passage I have highlighted was both confused and misleading and that they jury may have understood the trial Judge to be saying that whatever way the jury looked at it, the Appellants were guilty. 29 Against the totality of the passage I have quoted the proposition has only to be stated to be rejected. Clearly, if Her Honour's words are accurately recorded the highlighted passage contains error but, against the balance of the passage which I have quoted, the error is so obvious that no jury could have been misled by it. Her Honour had earlier said that:- "Except in the areas where there appears to be no real dispute, I will be trying to express no opinion about the facts at all". 30 In the light of that statement – borne out by the totality of the summing up - and others in the passage I have quoted it can not possibly have been thought that Her Honour was telling the jury that whatever way they looked at the case, the Appellants were guilty. 31 It might be noted also that no objection was taken to this passage in the summing up, a fact which again argues for either it being incorrectly transcribed or, taken in context, not something which seemed significant. Ground 5 Her Honour erred in directing the jury as to an element of the charge, namely being knowingly concerned in the importation of prohibited goods 32 The passages to which exception is taken are highlighted in the following extract from Her Honour's summing up. What does that mean, knowingly concerned - to be knowingly concerned in the importation of the cocaine? To be concerned in an offence means to do something which involves a practical connection with the offence and all that is involved in the offence. Concern means involved or participating in the importation. It does not mean worries about, for example. But, to wait or stand by with knowledge with a view to doing something connected with the importation, would amount to being knowingly concerned in the importation. These things must be done before or during the importation. That is, before or during all the things that are involved in the importation. You must be implicated or involved in the importation. You must be implicated or involved in the sense of having something to do with the importation, and the importation, as I indicated, includes all that is incidental or proximate to the act of importation, but it does not include the use, transportation or disposal of the goods after everything proximate and incidental to the importation has been completed. In other words, you might think that after such prohibited goods as cocaine are imported into Australia ultimately the aim is to have them distributed into the community. That is not the process that you are concerned with here. You are concerned with the process of importation which, on the evidence in this case, ceased at the time that package was handed over to Mr Szelenczy at Rose Bay. It is not necessary that the accused manifest his concern , that is show by his actions that he is concerned in a physical sense while the importation is actually in progress. It is sufficient if the concern is manifested in the venture which centres around the importation. The venture does not finish the moment the goods are landed or even the moment they are cleared through Customs, but extends to all matters and all events that are related or proximate or incidental to the importation. If he or she is standing by ready and willing to do something connected with the importation process, which means the whole process of making available in Australia goods from overseas, then he or she is concerned in the importation. As I said, members of the jury, mere involvement or participation in the importation of narcotic goods is not of itself, sufficient to make out the charge before you . The involvement or participation must occur when the person knew that the goods were to be imported included a quantity of narcotic goods. (sic) 33 This ground is also simply disposed of. There was no error in what Her Honour said. 34 The first of the passages highlighted is amply supported by the remarks of the court in R v Kelly (1975) 12 SASR 389 at 400 and it was not necessary for her Honour to limit the waiting or standing to which she referred to temporary inactivity. 35 The selectivity involved in the second passage highlighted – picking out the first third of a sentence and ignoring the balance – denies the criticism of the passage of all validity. In fact the whole sentence in substance repeats what was said by this Court in R v Shin Nan Yong (1975) 7 ALR 271 at 275:- "It is by no means an essential part of the crime against S233B(1)(d) that the "concern" be made manifest in a physical sense whilst the importation is actually in progress. It is sufficient if the "concern" is manifested in the venture which centres upon the importation". 36 Nor do I see any basis for the criticism that the third of the passages highlighted was likely to have confused the jury. Her Honour had in the paragraph containing that passage clearly moved from the topic of "concern" to the topic of knowledge. Grounds 6 and 7 6. Her Honour erred in directing the Jury that all of the evidence admitted on trial was available to be used by them against the accused Cerullo and the accused Soukoulis. 7. Her Honour erred in directing the Jury as a matter of practical reality the verdict in respect of the accused Cerullo would be the same as the verdict in respect of the accused Soukoulis. 37 Prior to the Crown opening its case before the jury, there had been debate before Her Honour as to the admissibility of some of the evidence. Before Her Honour ruled on some of this, the transcript records the following:- HH: Mr Forrest and Mr Shield, I have worked on the basis in particular that because there is no objection to some of the facts in the majority of the telephone intercept calls, that for the purpose of the legal argument both of you concede that there is reasonable evidence of joint enterprise? Forrest:Yes. 38 At no stage during the course of evidence was it submitted by Counsel for either of the Appellants that some of the evidence was not admissible against one as distinct from the other Appellant. Furthermore, there was no objection taken to those aspects of Her Honour's summing up as are the subject of these grounds of appeal. Having satisfied myself that there was, in the evidence to which I have referred, reasonable evidence of pre-concert – a question for the trial Judge – see R v Ahern (1988) 165 CLR 87 at 100, I would invoke Rule 4 and not permit the Appellants to rely upon these grounds. Ground 8 Her Honour erred in not fully or adequately putting the defence case to the jury. 39 The course which Her Honour followed in summarising the respective cases of the Crown and the Accused was, in the case of the Crown case, to give the jury what she described as a non-exhaustive and dot-point list of the evidence on which the Crown relied. A short example of what Her Honour said in this regard was:- "The Crown relies on the fact of the importation and the association between these two accused and the man Szelenczy. The Crown relies on the evidence of the money, the $50,000 in cash, which was taken to the Adelaide airport and which was transmitted to Frankfurt, Germany on 16 December 1999. The Crown relies on the phone calls which the Crown says are to do with the botched sending of the money;" 40 After some four paragraphs in this vein, occupying something over two pages, her Honour continued (and I include the totality of Her Honour's summary of the defence case):- As I said members of the jury I certainly do not propose to repeat what counsel for the Crown, nor counsel for either accused, said to you in their final addresses yesterday. Those addresses were heard yesterday. It would be counterproductive for me to repeat them to you. You have heard capable and comprehensive addresses from all counsel at the bar table. In summary, the Crown submitted to you that when you consider all of the evidence, which he took you through in great detail, you would be satisfied beyond reasonable doubt of the guilt of the accused because that conclusion is the only reasonable conclusion that can be drawn from the whole of the evidence. On the other hand Mr Forrest and Mr Shields – and again, I will deal with the defence case together because, as you would probably understand, the defence rely on all the material which was tendered in the defence case. And indeed, on what the defence submit is a different interpretation that you would place on the evidence that the Crown relies on. In particular, the defence points you to exhibits 1 and 4 which were tendered by the defence, and are relied by both the accused Soukoulos and Cerullo. Those phone calls, exhibits 1 to 4 of which you have transcripts, the defence point to the possible involvement of a man called Simmo as does the surveillance evidence and the possible involvement of a man called Lenny Retima. And the defence submit that those four phone calls, exhibits 1 to 4, put a different slant or complexion on the telephone intercepts on which the Crown relies. The accused rely on the money arriving in Frankfurt after Mr Szelenczy left the country; the fact that there was no paper trail, that is, there was no evidence as to who collected the $50,000 where it was collected or when it was collected. The defence both submit to you that the accused and Szelanczy were friends – so what? They also point out to you that Mr Szelenczy made a number of calls outside the RSL club once Mr Moulds, that is the federal agent posing as a DHL courier, made contract with Mr Szelenczy in the RSL club; a total of something like 16 calls. The defence submit to you that the Crown is inviting you to engage in speculation and guesswork and that you would not put the complexion on the facts that the Crown suggests. Counsel for each accused submits, in effect, that you would find that there is another conclusion reasonably available on the whole of the evidence which is inconsistent with the guilt of the accused, and therefore, your verdict would be not guilty in respect of each of the accused. 41 The passage just quoted occupied approximately 1¾ pages. Part of the criticism of the summing up advanced under this ground was that "the entire case for the Appellants was dealt with in three paragraphs of summing up of the learned trial judge totalling in all, 326 words". When regard is had to the fact that her Honour dealt with the entire case for the Crown, including far more evidence than there was in the case for the Appellants, in a passage only slightly longer, the mere length of her summary of the Defence case provides no basis for criticism. Nor has it been shown that her Honour's approach, one of brevity, was not one fairly open to her. 42 Particularly is this so for, as her Honour said without exception being taken:- "Essentially there is no dispute with the evidence given by the witnesses. What is in dispute in this trial is the conclusion you can draw from that evidence." and "Many of the facts, if not all of the facts, on which the Crown relies in this case are not in dispute. What is in dispute is the complexion to be put on those facts individually or, more importantly, when taken as a whole." Much of Her Honour's account of the Crown case was that undisputed evidence. 43 In other criticism it was submitted, in substance, that:- (i) Her Honour had undermined and misstated the defence case. (ii) The Crown case was that the Appellants were the "brains" and financiers behind the importation. From this it flowed that there would be no other persons involved whereas clearly there were. Thus the involvement of others carried the implication that the Appellants were not knowingly concerned in the importation and Her Honour had failed to put this case to the jury. (iii) That the off-hand remark "so what" undermined the force of arguments for the Appellants and withdrew the innocent explanation of friendship between the Appellants and Szelenczy from the jury's consideration and made it unnecessary for Her Honour to direct the jury that they would have to exclude that explanation as a reasonable possibility before finding guilt. (iv) Her Honour did not draw attention to the fact that the Appellant's failure to take the cocaine with them after supposedly meeting up or being with Szelenczy when he obtained delivery of the cocaine did not fit with the Crown case. (v) If the Appellants were "the brains" the financiers and determined to distance themselves from the importation there was no need for them to meet with Szelenczy at all. 44 The context in which the reference "so what" appears, does not persuade me that Her Honour was in any sense undermining the defence case as distinct from recounting an argument for the defence to the effect that friendship between themselves and Mr Szelenczy precluded any adverse inference being drawn from their contact. Furthermore, the suggestion that her Honour was commenting on, let alone making a comment which undermined the case of the Appellants is quite inconsistent with the tenor of her Honour's summing up. 45 But even if the reference "so what" should be regarded as a critical comment, its effect at the highest was to suggest that the fact of friendship said nothing on the topic of what the Appellants and Mr Szelenczy may have done in the course of that friendship. Certainly the remark provides no basis for the suggestion that the trial Judge withdraw the explanation of friendship from the jury's consideration. Nor was her Honour required to direct the jury that before verdicts of guilty could be returned the jury would have to exclude friendship between the Appellants and Mr Szelenczy as a reasonable possibility. The relationship between the Appellants on the one hand and Mr Szelenczy on the other was but one of a group of circumstances on which the Crown relied: It was not itself an essential link in the Crown case and Her Honour, on three or four occasions in addition to that contained within the passage I have most recently quoted, directed the jury that before they could convict, guilt must be the only conclusion open and the Appellants must be acquitted if there was another reasonable explanation for the facts. 46 As a matter of common sense, the suggestion that if the Appellants were the "brains" behind the importation and its financiers there would not be other persons involved is just wrong. If that was an argument which had been advanced by counsel at the trial – and counsel for the Appellants in this Court said merely that he inferred it was, the defence case was not weakened by Her Honour's failure to repeat it. 47 So far as the fourth and fifth criticisms I have recounted are concerned, no doubt if they were made and thought by the jury to have had weight, they would have been remembered. For myself, I should have thought them of minimal significance. No other undermining or misstatement of the Defence case was suggested. None is apparent in what is, overall, a commendably clear and concise summing up. This ground also fails. Ground 9 The trial miscarried as a result of inadequate Counsel for the Appellant 48 Two distinct matters are relied on as, so it is said, demonstrating the inadequacy of Counsel's conduct of the trial. The first is the failure of counsel to challenge the admissibility of the evidence as to the transmission of the moneys to Racerullo and Bosca on the ground of the time at which the moneys were transmitted. As has been said, there was a challenge to the admission of the evidence concerning the Bosca monies on another ground. 49 What I have said above in considering grounds 3 and 3A provides a sufficient answer to this suggested demonstration of inadequacy. However there is another. For the course of the trial indicates that the failure to challenge the admissibility of the evidence as to the transmission of moneys to Racerullo and Bosca on the ground of the time at which the moneys were transmitted is capable of explanation by the possibility of forensic advantage. In these circumstances, it is impossible to say that the decision created or contributed to a miscarriage of justice. 50 In this regard there was an affidavit sought to be read on behalf of the Appellants in which it was said that "it was the intention of trial counsel to avoid any reference to (the timing of the receipt of the monies in Europe as showing they could not have been used to purchase the cocaine) to set up a so-called "killer point" that was unanswerable by the Crown". The point was in fact made forcefully in the cross-examination of Detective Critchlow when he was recalled as the last witness. 51 According to the remarks of Gaudron J [at 27], Hayne J [at 107-108] and Gummow J [at 101], in TKWJ v R (2002) 193 CLR 7 the passage just quoted was inadmissible. Her Honour said:- One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis. 52 It is unnecessary for this Court to consider whether that is the last word on the topic. Gleeson CJ – see [8-10] did not obviously agree. McHugh J did not advert to the topic although his Honour referred, without disapproval, to Ignjatic (1993) 68 A Crim R 333 where an affidavit indicating that tactical decisions were the reason for some courses of action was received – see at p338 - and to that evidence – see at [81]. Nor do any of the judgments in TKWJ v R indicate that the issue was there the subject of argument. 53 Here, as has been said, quite apart from the affidavit, the course of the trial indicates that the failure to raise the time of transmission as a ground for challenging the admissibility of the evidence presently under consideration is capable of explanation by the possibility of forensic advantage. Accordingly the first aspect of this ground fails. 54 The second particular arose from the terms of a formal admission, headed "Statement of Agreed Facts" and which became Exhibit A. Its terms included the following:- "1. On 19 November 1999 the Accused Cerullo attended the Mid City Flight Centre, Sydney. She was in the company of Mr Szelenczy. The Accused tentatively booked a flight for Szelenczy to travel from Sydney to Frankfurt to Budapest to Frankfurt and back to Sydney. She paid a deposit of $100.00. She gave out her contact number as 0415 910 469. 2. On 23 November 1999 the accused, Toni Raffaella Cerullo ("Cerullo") made an international booking for herself and the co-accused, Dimitrios (Jim) Soukoulis ("Soukoulis") to travel to Frankfurt, Germany with STA Travel in Swanson Street, Melbourne. 3. … 4. When making this booking Cerullo left a non-refundable $100 deposit. Cerullo left her telephone number 0413 707 390. 5. … 6. …" 55 It was submitted that reasonably competent Counsel would not have advised the Appellant to make the admission in paragraph 1 which, it was asserted, was wrong in that:- (a) The booking was not for Szelenczy alone but for him and his wife; (b) At some unstated time the booking was changed to Szelenczy alone; (c) The first Appellant was not involved in the changing of the booking; (d) The contact number was simply a contact number in relation to the booking and not the first Appellant's contact number; and (e) The contact number belonged to Szelenczy. 56 The Court's attention was drawn to a statement by a Ms Griffiths of 28 January 2000 which was apparently included in the Crown brief and on which part of the Statement was based. She was the employee of Flight Centre with whom the booking was made. It was also asserted that apart from a warrant under Section 45 of the Telecommunications (Interception) Act 1979, which identified the service 0415 910 469 as belonging to Mr Szelenczy, there was no other evidence available to be called at trial as to Ms Griffiths' involvement or as to the ownership of the mobile phone mentioned in the admission. 57 What the statement of Ms Griffiths said concerning the phone number given to her at the time of the booking was, "The female also gave me a contact number of 0415 910 469". Ms Griffiths said also that the tentative booking was for Mr Szelenczy and his wife although Ms Griffiths went on to say that "she was not sure whether the wife could obtain holidays at that stage. However, Mr Szelenczy was definitely going". 58 Although it would clearly have been more appropriate for the admission to follow the terms of Ms Griffiths' statement, using the expression "a contact number" instead of "her contact number", in context the difference was, in my view, immaterial, particularly given the reference to "her telephone number" in paragraph 4. Furthermore, there was, as was no doubt to be anticipated, other evidence in the trial as to phone numbers. As recorded it was that the phone number of Ms Cerrulo's mobile phone was 0413 703 390 and that of Mr Szelenczy was 0415 912 469. Each of these is one digit different from the corresponding number in the Statement of Agreed Facts but is calculated to make clear whose number was given at the time of the booking of Mr Szelenczy's flight. 59 It was also submitted that the absence from the Statement of any reference to the tentative booking having been made for Mrs Szelenczy was calculated to diminish the weight of an argument that Mr Szelenczy's trip was of an innocent nature, one in which it was originally planned that his wife would participate. However, evidence of such a booking, later cancelled, is hardly compelling. 60 The counsel who had appeared at trial were not called and there was no evidence put before the Court as to why the Statement took the form that it did. I am prepared to assume that there was no justification for the departures from Ms Griffith's statement to which I have referred. If so, the departures should not have occurred and counsel was at fault. However the fault does not come close to that of such a serious nature as would lead to the conclusion that there has been a miscarriage of justice – se R v Birks (1990) 19 NSWLR 677 at 685. 61 In support of this ground, counsel for the Appellants sought, as I have said, to read an affidavit. It was by a barrister, Mr Wayne Baffsky. Mr Baffsky deposed to, inter alia, having an extensive criminal practice and of having read the transcript and many, if not all, of the documents in the case. Mr Baffsky opined that "It was deficient of trial Counsel not to rely upon the later receipt of the Racerullo monies and the Bosca monies in Germany "reasonably competent Counsel should have sought to have applied to have the Jury discharged or to have the Racerullo monies and the Bosca monies withdrawn for the Jury's consideration" and "reasonably competent counsel should not have advised the Appellant(s) to make the admission (contained in the Statement of Agreed Facts)". 62 The Crown objected to the affidavit. The Court said that it would decide the question of admissibility in these Reasons. 63 I have already indicated that a passage wherein Mr Baffsky records that it was the intention of trial counsel to avoid any reference to the timing of the receipt of the monies in Europe as showing they could not have been used to purchase the cocaine so as to set up a so-called "killer point" that would be unanswerable by the Crown, was, in light of the remarks in TKWJ v R , inadmissible. The balance of the affidavit, which consisted of the opinions I have quoted and material which formed the basis for those opinions should also be rejected. Section135(c) of the Evidence Act (NSW) provides the basis for this conclusion:- The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) … (c) cause or result in undue waste of time." 64 This Court has more than sufficient experience to make a judgment as to whether counsel's conduct in the trial, which had no particularly unusual features, was reasonable or within the range of what reasonably competent counsel would or might have done. In the circumstances of the case the Court does not need and would not be assisted by the opinion of some practitioner on the issues to which Mr Baffsky's opinion goes. Indeed, although I need not decide this now, I find it difficult to conceive of a case where evidence such as that given by Mr Baffsky would be of assistance to this Court. Even if there were no cross-examination – and the Crown in written submissions reserved its rights in this regard should the Court admit the evidence - the time taken to consider, and probably refer in the Court's reasons to Mr Baffsky's evidence might not be great but, as the evidence would not assist, that time would still be an undue waste. 65 This ground also fails. 66 It follows from what I have said that the Appeals against conviction should be dismissed. This conclusion makes it unnecessary to consider the application of the proviso to s6 of the Criminal Appeal Act. 67 Ground 10 The sentence imposed upon the Appellant was manifestly excessive. 68 The principal argument advanced in support of the application for leave to appeal against sentence was that her Honour had arrived at wrong conclusions as to the role of the Appellants in the importation and in particular as to the relative criminality of the Appellants and Mr Szelenczy. 69 The latter had been sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years. An appeal to the Court of Criminal Appeal was dismissed – R v Szelenczy [2001] NSWCCA 75. There is nothing in the report of the Court of Criminal Appeal to suggest that that Court or the primary judge took a different view of Mr Szelenczy's role from that suggested above and that taken by Judge Hock. 70 Mr Szelenczy had however a number of subjective circumstances in his favour which the Appellants do not have. He had pleaded guilty at an early stage and was regarded as exhibiting remorse and contrition. He was in a serious state of ill health, both physical and psychological, and an alcoholic. He had sought treatment for drug and alcohol problems while in custody and was making genuine efforts to resolve his problems. Nevertheless, Szelenczy had committed the offence for monetary gain. 71 The Appellants on the other hand had earlier established themselves in a successful pasta restaurant and were regarded as intelligent and capable business persons whose only motivation was greed. More significant for present purposes were findings of her Honour recorded in the following passage:- "On the evidence I am satisfied beyond reasonable doubt that these two offenders were involved in the importation from the early stages to its conclusion and that they were superior to Szelenczy in the criminal enterprise to import this drug into Australia. I am satisfied beyond reasonable doubt they were principals overseeing Szelenczy who was himself no mere courier. I base these findings on the following evidence: the recorded telephone calls in which these offenders gave instructions to Szelenczy; the transfer of the $50,000 to Frankfurt; the booking of Szelenczy's flight by Cerullo and the fact that she travelled to Frankfurt; and finally the fact that these two offenders distanced themselves from the actual parcel containing the drugs. In arriving at this finding I have not overlooked the transcripts of the telephone calls between Szelenczy and others not these two offenders tendered at the trial and on sentence. That material is capable of giving rise to an inference that Szelenczy may have also had a role in the subsequent distribution of some or all of the cocaine but that does not detract from the conclusion I have come to that these two offenders were the financiers and the brains behind the importation." 72 A number of these findings were challenged. In particular, it was submitted that her Honour erred in finding that the role of the Appellants was superior to that of Szelenczy, and that in fact there were not recorded telephone calls in which the Appellants gave instructions to Szelenczy, that the Appellants did not distance themselves from the actual parcel containing the drugs and, even if they did, that does not support the conclusion that her Honour drew from such a finding. 73 I agree that there were not recorded telephone "calls" in which the Appellants gave instructions to Szelenczy. The Crown was only able to point to one such conversation, one on 18 December 1999 at 1835 hours and my perusal of the transcripts of the calls leads me also to the view that this was the only one. Her Honour's reference to "calls" was erroneous although the one to which I have referred provides significant support for her Honour's conclusion. 74 I am inclined to agree also that such evidence as there was that the Appellants distanced themselves from the actual parcel containing the drugs does not support the conclusion that the Appellants were in a position superior to that of Szelenczy. Having apparently been at Szelenczy's premises at the time of delivery, their immediate departure argues as much for him being in a superior role as it argues for the reverse. Of course, Szelenczy's retention of the parcel is consistent with either him having a superior role in the importation or being more closely involved with the subsequent sale or distribution of the drugs. 75 There were other factors. The number of conversations between one or other of the Appellants and Szelenczy in the days immediately prior to the arrival of the drugs on the topic of their delivery demonstrates a great interest in the consignment. However, the Appellants' apparent position as financiers might be an explanation for that and while Szelenczy's informing the Appellants of the parcel's arrival and their attendance at his flat argues for their interest being substantially more than minor, even in conjunction with their almost immediate departure, it does not argue for their role being greater or higher than Szelenczy's was. 76 There was however one further aspect of the events occurring at about the time of delivery to which her Honour did not refer, but might well have. The presence of the money on the same table as the drugs and in Mr Szelenczy's hand at the time of the police raid on his flat argues for the conclusion that it had been paid to him by one or both of the Appellants, perhaps for the successful conclusion of the importation. 77 It was further submitted that her Honour's findings that the money sent to Frankfurt was used in some way to finance the importation and that the Appellants were the brains behind the importation were findings not open to her Honour. The first of these has been sufficiently answered by what has been said when I was considering grounds 3 and 3A. The second is amply supported by the evidence as to what the Appellants on the one hand, and Szelenczy on the other, did. 78 Finally, it was submitted that "following the successful appeal in Wong v R (2001) 207 CLR 584, it is no longer appropriate to sentence an offender convicted of being knowingly concerned in the importation of narcotics by reference to the weight of the particular narcotic. It is appropriate to have particular regard to the role played by the Appellants in the importation". 79 The second of these propositions has been dealt with. The first is wrong. In Wong v R members of the High Court criticised what they saw as undue emphasis on quantity but no one suggested it was irrelevant. Thus at [64], Gaudron, Gummow and Hayne JJ said, "In general, however, the larger the importation … the heavier the punishment that would ordinarily be exacted". See also [31], [70], [129-130]. 80 No error has been shown in the sentence her Honour imposed. I would grant leave to appeal against sentence, but dismiss the appeal. 81 BUDDIN J : I have had the advantage of reading in draft form the judgment of Hulme J. I respectfully agree with the orders which his Honour proposes. I am in substantial agreement with what his Honour has said in relation to Grounds 3 – 10 and wish to add only some brief observations concerning Grounds 9 and 10. As I have come to a different view as to how Ground 2 should be disposed of, it will be necessary for me to state my reasons for having done so. Ground 2 82 Counsel on behalf of each of the appellants objected at trial to the admissibility of Exhibit J which was a phone call on 25 November 1999 between the appellant Soukoulis and a person identified only as "Alex". The relevant parts of the conversation are set out in the judgment of Hulme J. The trial judge accepted the Crown's argument that "the conversation is probative of…Soukoulis' state of mind and his participation in the joint criminal enterprise [and that it was] made in furtherance of the joint criminal enterprise". Her Honour concluded, without stating reasons, that there was no basis, pursuant to ss135 and 137 of the Evidence Act , upon which to exclude the evidence. Her Honour also concluded that although the appellant Cerullo was not a party to the conversation it was nevertheless admissible against her as well, in accordance with the principles enunciated in Queen v Tripodi (1961) 104 CLR, because it was said to be "in furtherance of the joint criminal enterprise", of which there was reasonable independent evidence. 83 The Crown sought in this Court to rely upon the decision of the High Court in Harriman v The Queen (1989) 167 CLR 590 to support the admissibility of the evidence. As the various judgments in Harriman make clear, the evidence in question must demonstrate more than a propensity on the part of an accused person to commit a particular kind of criminal offence or that he or she is the sort of person who is likely to commit the offence charged, before it can become admissible. 84 In Harriman , evidence that the appellant and his co-offender had previously been involved together in the sale of heroin was admitted upon his trial in respect of a charge of being knowingly concerned in the importation of heroin. The co-offender was the main Crown witness at his trial and he gave evidence of their having travelled together to Thailand in order to facilitate the importation of heroin into Australia. The appellant said that his purpose in travelling to Thailand was entirely innocent. The High Court held that the evidence of the appellant's prior involvement with his co-offender in the sale of heroin was admissible because it was highly probative of the criminal character of their association in Thailand. It was accordingly held that the evidence went beyond being mere propensity evidence. 85 Hulme J also referred to this Court's decision in R v Quach [2002] NSWCCA 510. In that case an argument was advanced that evidence in the form of 11 intercepted telephone calls between the appellant and a man named Le, which took place between 19 and 29 April 2000, and from which it could be inferred that they had had prior dealings in drugs, was tendency evidence within the meaning of s 97 of the Evidence Act. Spigelman CJ rejected that argument and held, inter alia, that the reasoning in Harriman was applicable because the evidence to which objection was taken in that case, was admissible in order to demonstrate that the relationship in question could not be regarded as an innocent one. Sully J agreed. His Honour said: The Crown case was that the appellant had sold 5.9 kilograms of heroin to Le in exchange for more than $700,000 in cash. The Crown case was that the transaction had occurred at the appellant's premises and in the very early morning hours of 2 May 2000. There was no direct evidence of the carrying out of the transaction. The appellant's stance at trial was that he had no connection whatsoever with any such transaction; that he had no acquaintance with Le except a casual and visual acquaintance deriving from a sighting of Le at a gambling casino; and that he had no relationship whatsoever with Le of such a kind as would discredit his, the appellant's basic position that at the relevant time on the relevant morning he had been asleep in his own bed, oblivious to any drug-related activity of Le. In such a trial setting, it seems to me that the evidence of the eleven intercepted telephone conversations was relevant and admissible in order to show such a relationship between the appellant and Le as would establish that it was no mere series of unfortunate coincidences that began with a flurry of telephone conversations about drugs; caused Le to drive from Melbourne to Sydney overnight to a destination in Sydney that was practically on the appellant's door-step; and that found Mr Le shortly thereafter on his way back to Melbourne in possession of 5.9 kilograms of heroin; and found the appellant, at the same time, in possession of an enormous sum of money in bank notes, many of them new bank notes, the total amount of such money equating strikingly to the current market value of that 5.9 kilograms of heroin. (pars 71-2) 86 The last in time of the phone calls which were, in the light of the other evidence in the case capable of being regarded as concerned with a future supply of drugs, had taken place only two or three days before the transaction on 2 May. 87 So far as the present case is concerned, it may be inferred that the parties were speaking in a deliberately covert fashion during at least parts of their conversation. The critical issue however was whether there was a sufficient nexus between what was being discussed during the conversation in question and the importation which occurred a month later such as to justify the admissibility of the conversation. The nexus is said to have been provided in particular by the reference to "white cappuccino" by the man "Alex" and the appellant Soukoulis' remark, "not now". 88 To establish the nexus it had to be first inferred that the reference to "white cappuccino" was not only a reference to prohibited drugs but also that it was a specific reference to cocaine as distinct from any other prohibited drug which is white in colour. The appellant's reference to "not now" had then to be interpreted to mean that he was intending to convey the impression that he was not able to there and then supply cocaine to "Alex" but he would be able to do so in the foreseeable future, (that is from the consignment of drugs which were to be the subject of the proposed importation then some weeks away). Having read the transcript of the conversation a number of times I am still left in considerable doubt as to what the conversation was actually about. The conversation was of very short duration and "Alex" was not otherwise referred to in the proceedings. Nor is there any other material available which would enable one to place the present conversation in some sort of context. All those considerations lead me to the conclusion that there was no satisfactory basis upon which the conversation could be safely interpreted in the manner which is suggested. Accordingly I am of the view that the evidence lacked the necessary probative value to justify its admissibility. 89 Even if the evidence was otherwise admissible, then in my view it plainly ought to have been excluded pursuant to the discretion conferred by s 135 of the Evidence Act either on the basis that it might be "misleading or confusing" or that it might be "unfairly prejudicial". Alternatively it ought to have been excluded pursuant to s 137. 90 If on the other hand however, the conversation was indeed about a prospective drug supply but was not related in any way to the drugs to be imported, then in my view it could not rise above being anything other than mere propensity evidence. Because the conversation was between the appellant and a third person who was not demonstrated to have had any involvement in the cocaine importation, or to have been, or intended to have been the recipient of any part of it, then there was nothing about the nature of their relationship which could be established that could relevantly bear on the proof of the matter with which the appellants were charged. In those circumstances, there is nothing in my respectful view, in either Harriman or Quach that would justify the admissibility of the conversation against the appellant Soukoulis, much less against the appellant Cerullo. 91 Accordingly, in my view, the appellants have demonstrated error on the part of the trial judge in that evidence which was inadmissible has been received into evidence. It becomes necessary then to consider the possible application of the proviso to s 6(1) of the Criminal Appeal Act . 92 In respect of the appellant Cerullo, the Crown was able to rely, inter alia, upon the following pieces of evidence: (i) her presence at the "Flight Centre" and her role in arranging the travel of Szelenczy; (ii) her facsimile to the Appellant Soukoulis (Exh AH) concerning his meeting with Szelenczy; (iii) her travel to Frankfurt at the material time; (iv) her conversation with Caracoussis and the subsequent transfer of monies overseas; (v) her various conversations with Soukoulis and Szelenczy; (vi) being in the company of Soukoulis and Szelenczy on the afternoon of 23 December at which time the arrival of the "parcel" was discussed; and (vii) her presence in Szelenczy's premises at the time of the delivery of the parcel. 93 In respect of the appellant Soukoulis, the Crown was able to rely, inter alia, upon the following pieces of evidence: (i) his presence in Sydney on 23 November 1999 and his receipt of the facsimile from Cerullo on that date; (ii) his meeting with Szelenczy prior to Szelenczy's departure to Frankfurt; (iii) the fact that bookings were made for his travel, notwithstanding the fact that he did not ultimately leave Australia; (iv) his various conversations with Cerullo and Szelenczy; (v) his presence at the conversations between Cerullo and Caracoussis and the subsequent transfers of monies overseas; (vi) being in the company of Cerullo and Szelenczy on the afternoon of 23 December 1999 at which time the arrival of "the parcel" was discussed; (vii) his presence in Szelenczy's premises at the time of the delivery of the parcel. 94 In my view a fair reading of the entire trial transcript reveals that the Crown was able to present a strong circumstantial evidence against each appellant. No evidence was called on behalf of either of them in answer to the Crown case. As against that, I do not believe that the inadmissible material would have occasioned any real prejudice to the appellants because as I have indicated earlier, the jury is likely to have been quite confused about the meaning to be attributed to the conversation and would, in all likelihood, have placed little or no reliance upon it. The trial was otherwise conducted with conspicuous fairness and the trial judge's directions to which little or no objection was taken, were extremely clear and concise. In all those circumstances, and even if I am wrong in my assessment of the likely impact of the inadmissible material upon the jury, I would apply the proviso and dismiss the appeal upon the basis that no substantial miscarriage of justice has occurred. See Festa v R (2001) 185 ALR 394. Ground 9 95 In order to succeed upon this ground, the appellants must establish that there has been a "miscarriage of justice" within the meaning of s 6(1) of the Criminal Appeal Act 1912. They seek to do so by persuading the Court that such a result was occasioned by reason of the way in which the trial was conducted by counsel who then appeared. Two particular matters are relied upon. I agree with Hulme J that the appellants have fallen well short of establishing a miscarriage of justice, much less that the conduct of counsel may in some way have contributed to such an outcome. 96 This question was the subject of recent analysis by the High Court in TKWJ v R (2002) 193 ALR 7. The appellant there contended that trial counsel's failure to lead evidence of his good character, and his failure to seek an "advance ruling" as to the admissibility of that evidence, had resulted in a miscarriage of justice. The High Court rejected those arguments. Gaudron J said: Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial – "fresh evidence", as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be "flagrant incompetence", an "egregious error", "extreme conduct" or "significant fault". Thus it was that the argument in the present case was premised on counsel having made a "wrong" decision. Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether "on any other ground…there was a miscarriage of justice". The words "on any other ground" do not postulate the demonstration of error. Rather, they simply require that "something occurred or did not occur" in the trial. As is the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of "flagrant incompetence", "egregious error" or the like. (at 14-15) 97 McHugh J said: In determining whether the conduct of counsel has resulted in a miscarriage of justice, the "semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude" is not an end in itself. A test such as "flagrant incompetence", while a convenient label that may show that a miscarriage of justice has occurred in a particular case, is unhelpful generally in determining whether there has been a miscarriage of justice within the terms of s 6(1) of the Criminal Appeal Act. Whether there has been a miscarriage of justice is the ultimate issue that the court must decide. Counsel's conduct is a sub-issue. Where counsel's conduct is in issue, the court must examine all the circumstances including the wide discretion that counsel, as an officer of the court, had to conduct the trial in the manner that he or she thought was in the best interests of the accused. If the court concludes that, despite that discretion, a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome. (at 32-3) 98 As their Honours point out, the critical question remains whether the appellants can demonstrate that there has been a miscarriage of justice. The resolution of that question is quintessentially a matter of law and as such, is an issue which is reserved for determination by an appellate court in accordance with well established principles. I would reach a similar conclusion concerning the question of incompetence of counsel and in particular in relation to an assertion of "flagrant incompetence". Appellate courts are well placed, and indeed are expected, to decide such questions on the basis of collective judicial knowledge and experience. Accordingly the resolution of these issues is not assisted by the expression of an opinion by a barrister who claims expertise upon the subject. 99 For similar reasons I would not be prepared to conclude that the question of competence of counsel in the conduct of a particular trial is an identifiable field of endeavour which would constitute "specialised knowledge" within the meaning of s 79 of the Evidence Act . It is unnecessary in those circumstances to consider the related question of whether, assuming that there is indeed such a field of endeavour, there was any basis upon which it could be demonstrated that Mr Baffsky had in any event, the requisite expertise. A claim based solely upon his asserted experience would not, I would have thought in the circumstances, suffice. 100 It is for these reasons that I agree with Hulme J that Mr Baffsky's affidavit should be rejected. I also agree with his Honour that it is "difficult to conceive of a case where evidence of this kind" would be of assistance to this Court. Ground 10 101 There are, as the High Court observed in R v Olbrich (1999) 199 CLR 270, limits to the utility in adopting labels such as "principal" or "courier" to describe an offender's participation in an offence. Gleeson CJ, Gaudron, Hayne and Callinan JJ in a joint judgment said "it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did" (at 279). 102 Bearing those considerations in mind, the answer to the applicants' submissions does not ultimately depend, in my view, upon a determination of some hierarchy of relative culpability as between the applicants and the co-offender, Mr Szelenczy. What the evidence disclosed was that each of the applicants played a very significant role, as did Mr Szelenczy, in the commission of the present offence. True it is that the functions which they were to perform, differed. Each nevertheless played an indispensable part in ensuring that the object of their joint enterprise, namely the importation of the prohibited drugs, was achieved. On any view of the matter, it is apparent that the applicants performed functions that were, at least , as pivotal to the achievement of that objective as did Mr Szelenczy. 103 That being so, the sentences imposed upon these applicants sit comfortably with the sentence imposed upon Mr Szelenczy (which was not disturbed on appeal to this Court) when appropriate consideration is given to the favourable subjective factors upon which he, but not the current applicants, was able to rely. Prominent amongst those considerations was his plea of guilty. When due weight is given to those matters which Mr Szelenczy was able to call in aid, and to which Hulme J has referred, it can be readily assumed that the sentence that would otherwise have been appropriate in his case would have been in the order of 12 years' imprisonment which is the precise head sentence that was imposed upon each of the applicants. 104 As to the submission concerning the relevance of the weight of the prohibited substance, it may be observed that in addition to the passage in the joint judgment of Gaudron, Gummow and Hayne JJ, in Wong & Leung v The Queen (2001) 207 CLR 584, to which Hulme J referred, their Honours also said that: The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of these categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. (at para 67) 105 So far as the continuing significance of the guidelines established by this Court in R v Wong & Leung (1999) 48 NSWLR 340 are concerned, Hidden J, with whom Levine J and Howie J agreed, said in R v Taru [2002] NSWCCA 391 that they "remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentence at the time the judgment was delivered. Indeed, much of the judgment of the Chief Justice was devoted to consideration of other cases and the patterns of sentence which emerged from them." 106 In view of the significant involvement of each of the applicants in an enterprise of the scope and seriousness of the present offence, I cannot accept the submission that the sentences imposed were manifestly excessive. 107 Even if error had been established, I would not form the opinion pursuant to s 6(3) of the Criminal Appeal Act 1912, "that some other sentence…less severe is warranted in law and should have been passed". ********** Last Modified: 09/10/2003 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. 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