New South Wales Court of Criminal Appeal CITATION : Regina v Besodi [2002] NSWCCA 452 FILE NUMBER(S) : CCA 60208/02 HEARING DATE(S) : 7 November 2002 JUDGMENT DATE : 20 November 2002 PARTIES : Regina v Mohammed Hassan Besodi JUDGMENT OF : Simpson J at 1; Carruthers AJ at 2; Mathews AJ at 73 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0965 01/11/1241 LOWER COURT JUDICIAL His Honour Judge Urquhart QC OFFICER : COUNSEL : Appellant - P. Byrne SC Crown - P.W. Neil SC / R.J. Bromwich SOLICITORS : Appellant - Ross Hill & Associates Crown - Commonwealth Director of Public Prosecutions CATCHWORDS : Criminal law - appeal against conviction - whether inappropriate cross-examination by Crown Prosecutor caused trial to miscarry - whether adequate directions by trial judge to rectify any prejudice caused by the cross-examination - Sentencing - severity appeal - whether adequate weight given to strong objective circumstances. Commonwealth Crimes Act 1914 s16A(2)(f)(g), 16A(3) LEGISLATION CITED : Criminal Appeal Act 1912, s6(1) Customs Act 1901, s233B(1)(ca) Azzopardi v The Queen (2000) 205 CLR 50 Dyers v The Queen [2002] HCA 45 Festa v The Queen (2000) 76 ALJR 291 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Mraz v The Queen (1955) 93 CLR 493 R v Dyers [2000] NSWCCA 335 Wong and Leung v The Queen [2001] 76 ALJR 79 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal allowed. Sentence quashed. Appellant sentenced to imprisonment for 6 years to commence on 27/2/02 and expire on 26/2/08. Non-parole period of 3 years 9 months to commence on 27/2/02 and expire on 26/11/05. IN THE COURT OF CRIMINAL APPEAL 60208/02 SIMPSON J CARRUTHERS AJ MATHEWS AJ Wednesday, 20 November 2002 REGINA v Mohammed Hassan BESODI Judgment 1 SIMPSON J: I agree with Carruthers AJ. 2 CARRUTHERS AJ: Mohammed Hassan BESODI, ("the appellant"), appeals against his conviction in the District Court Sydney on 27 February 2002 on one count of attempting to obtain possession of heroin reasonably suspected of being imported: see s 233B(1)(ca) of the Customs Act 1901. 3 On 26 Aril 2002 the appellant was sentenced by his Honour Judge Urquhart QC, the trial judge, to a term of imprisonment of eight years to commence on 27 February 2002 and to expire on 26 February 2010 with a non-parole period of five years to commence on 27 February 2002 and to expire on 26 February 2007. 4 As at the date of trial the appellant was thought to be aged between fifty-three to sixty-two years. He was born in Afghanistan. He has two daughters who reside with him. When he first came to Australia he worked as a kitchen hand and later as a messenger for the State Bank in Martin Place. He then started to import and sell clothing and antiques initially from Afghanistan and later from other countries. Subsequently he commenced exporting Australian products to Afghanistan, China, India and other countries. At the date of trial he was involved in the import and export business and regularly travelled overseas, it is said, to buy and market products. 5 Evidence was given at the trial that since the appellant's arrival in Australia he has been actively involved in attempting to free Afghanistan, initially from Russian control and more recently from the Taliban. 6 As at the date of trial he lived in a unit in Chatswood. Prior to commencing residence in Chatswood he lived at Frenchs Forest. 7 On 26 May 2001, Robert Martin, the senior customs officer at the Australian Embassy in Bangkok was contacted by a Royal Thai customs officer. He was told that a parcel addressed to Australia containing a suspicious substance had been found. Mr Martin examined the parcel and observed it under x-ray. He noted that the parcel contained two bases with a substance hidden between them. The second base was strongly glued in place and a decision was taken to leave it intact. The parcel was photographed (see Exhibit A). Subsequently in evidence the witness identified the parcel as one which was ultimately collected by the appellant in Sydney. The parcel was addressed to "Michael Williams" care of "Thomas Davis" at the appellant's post office box number 821 at Crowsnest (sic). 8 The substance was later analysed and found to contain heroin, having a relatively low purity of 6.1%, so that the content of pure heroin involved in the charge against the appellant was 14.6 grams. In addition to the heroin the parcel contained five shirts in plastic bags. 9 The Australian Federal Police obtained the relevant authority under the Crimes Act 1914 for a controlled operation in respect of the parcel. Federal Agent Justine Dickinson subsequently collected the parcel from the Sydney Airport. Thereafter it was the subject of a controlled delivery, with the bulk of the heroin being substituted with an inert substance and the parcel being made up to resemble its original appearance. The parcel was in that state when collected by the appellant from Crows Nest Post Office, taken to his home and opened by him. Continuity of the parcel and of the heroin were not issues in the trial. 10 The manner of the controlled delivery was that on two successive days, Monday 4 June and Tuesday 5 June 2001, the parcel was taken to the Crows Nest Post Office by federal agents. On the first day an Australia Post Advice Card was placed in box 821. On 4 June the appellant took the card out of the box at about 10.58 am and returned the card to the box without collecting the parcel. On 5 June the appellant took the card from the box 821 and went to Crows Nest Post Office, where he presented the advice card and collected the parcel. He was recorded on the post office security cameras, which took a series of static photographs on a video recorder. The tape and still reproductions from the tape were admitted into evidence. Those images depicted the appellant in a queue, collecting the parcel and walking out of the post office with the parcel held in front of him. According to the Crown case the second and third last stills appeared to depict the appellant looking at, or at least in the direction of, the parcel. 11 The postal officer from whom the appellant collected the parcel, Ms Suzanne Gee, said that as far as she knew the appellant looked at it and then walked out. This evidence was not challenged in cross-examination. 12 After leaving the post office, the appellant went to various locations in the Crows Nest area and then returned home. A short time after he arrived at his apartment, police attended and executed a search warrant. The subject parcel was found in the appellant's bedroom under a desk with the false bottom removed and inverted. The five shirts were found with some other similar shirts. 13 Conversations that took place during the search of the premises were tape recorded, with the transcript being admitted without objection as Exhibit T. The appellant said in relation to the parcel, "I was suspicion (sic), it was not mine ... when I took it ... it was not mine". A short time later, after he had confirmed that he had opened the parcel, he was asked why he had opened it, given that it did not have his name on it. He replied, "I didn't know ... what was inside...". 14 Other evidence found during the search included a set of scales with traces of cocaine and heroin on them. The letter box for the premises was searched and it was found to contain another parcel containing twelve grams of heroin (Exhibit V) and a note with "12" written on it (Exhibit W). 15 Evidence in the Crown case also included: (a) call charge records for the appellant's mobile telephone service, which included calls to Thailand on 21 May 2001 and 23 May 2001 shortly prior to the parcel being located in Thailand on 26 May 2001, a day after it was located, namely on 27 May 2001, and later when it would have arrived in Australia in the ordinary course of the post, namely two calls on 31 May 2001; (b) expert evidence of a similarity between adhesive tape found in the appellant's premises and the tape on the package in the letterbox. This particular evidence was contradicted in part by an expert called by the appellant; (c) a travel itinerary for the appellant (with handwritten notations thereon) indicating that he had been in Bangkok on 3 May 2001; (d) a Thailand postal parcel receipt dated 7 April 2001 found at the appellant's premises addressed to "James Peterson P.O. Box 821 Crowsnest (sic) NSW Australia" indicating it contained four shirts (Exhibit AF). 16 For present purposes it is sufficient to note that the appellant gave detailed evidence about his political activities within Australia and overseas in political campaigns against the Afghan communist regime and subsequently the Taliban regime. 17 At the trial the appellant's activities overseas and in Australia were relied upon to ground a defence that drugs were delivered to him as a "fit up" by his political enemies. 18 In relation to the travel itinerary, to which reference has been made, the appellant said that this related to a trip which he had taken in aid of refugees, with notations on the itinerary being references to migration officers at the Australian High Commission in Islamabad. 19 An important aspect of the defence was that the appellant said that before he had gone overseas on 13 April 2001, he had received three parcels from overseas with the same sender's address, one addressed to his former address at Frenchs Forest Post Office, one addressed to post office box 1026 North Sydney and the parcel (which was the relevant parcel for the receipt card Exhibit AF) addressed to him at post office box 821 Crows Nest. The appellant said that he did not open any of these three parcels. Relevantly in his evidence in chief the appellant said: "SCRAGG: Q. Now, you left on the 13th of April, do you recall how long before that you had decided that you would take this trip. When did you first decide to take this particular trip? A. When I first decided? Q. Yes? A. I decided in April. Q. Could the witness be shown exhibit AF please, that has been described as a consignment note of 7 April 2001, four shirts. Do you agree that the police found that document when they searched your unit on the 5th of June? A. Yes, that's correct. Q,. And they say it was found in your briefcase? A. Yes. Q. Do you agree with that? A. Yes, I do. Q. Now at some stage can you tell us how it was that you came to have that document? A. Actually before I go to overseas on 13th of April I receive three parcels from overseas in the same address, sender address, and one was in the Frenchs Forest Post Office which is my previous residential address and one in North Sydney which is for the Australian Afghanistan Association post box, one was in my post box in Crows nest. That exhibit AF? A. Yes. Q. It is in the post office box at Crows Nest, 821? A. That's correct. Q. And did you collect a parcel with that document on it? A. Yes, exactly, I collect this parcel, from the package, then in the top of the package was the same address., Then I thought, who is this person sending regularly a parcel to me which I don't know him. Q. Now, you had the parcel in the post office? A. Yes. Q. And did you take the parcel away or did you give it back, what did you do? A. Only I take off this postal card. Q. You took it from the parcel? A. From the, the address was already written, same address was written on the top of the package. Q. And you took it? A. Then I took it off. Q. In the post office? A. Yes in the post office. Q. The next question is, after you had done that what did you do with the parcel itself? A. The parcel I give it back to the post office to a lady her appearance is like Indian. I said, 'I am sorry, this parcel not mine, this is not my name, it is not in my address.' Then she said, 'Okay put it on the', I put it on the counter. She said, 'thank you' just before I left the post office. Q. The lady that you gave it to. Did she appear to you to be of Indian appearance? A. Yes. Q. Dark skin, dark hair? A. Yes, exactly. Q. Did you later find out her first name was Grace? A. Yes, that's correct. Q. Now, you left the parcel, when did this happen how long before your trip overseas, did it happen? A. Oh, it happened either about, before I go for a week. Q. About a week? A. Yeah, a week before, yes. Q. And having left the parcel? A. Yes. Q. At the Crows Nest Post Office with Grace? A. Yes. Q. You then took that document, exhibit AF away with you, did you? A. Yes. Q. And why did you take it away with you? A. Because I was always come in my memory before of this I got two other parcels from the same address. I thought, who is this person, maybe they send wrong parcel to the same wrong people. But I would go to, I was stopping Bangkok. I say, okay I will take this one in with me and to go and see him why he is and say why he is sending this addressed to me, when I see him I show him everything, this is what he is sending 1, 2, 3, parcels to me. Q. Did you take exhibit AF with you when you travelled overseas? A. Yes. Q., In April? A. Yes, that's correct. Q. And you brought that back with you? A. Yes. Q. I will go on to that, but you mentioned that there had been two other parcels? A. Yes. Q. So this was the third parcel? A. That's correct. Q. The first parcel, which post office had that gone to? A. The first? Q. Yes. A. The first parcel was in Frenchs Forest. Q. And did you give it back? A. Yes. Q. But it had the same senders name, did it? A. Yes, that's correct. Q. And who did you give it back to? A.. I gave to Mr Rod, he knows me, I know him because I was all the time collecting mail from there. Q. And do you remember approximately when did that happen, when did you give that parcel back to Rod at Frenchs Forest Post Office? A. Exactly, about late January. Q. Of what year? A. Late January 2001. Q. Last year? A. Yes. Q. So you also said that there had been another parcel, was the next parcel to North Sydney that you received? A. It was about late January. Q. Did you return that to North Sydney Post Office? A. Yes, that is correct. Q. And are you able to say who you returned it to? A. Yes, I remember but I couldn't notice the name. Q. Was it a man or a woman? A. Woman. Q. A woman? A. Yes. Which Post Office was the second parcel returned to? A. North Sydney. Q. And you have said the last parcel you received before you went overseas you returned to Grace? A. This, yea. Q. That one? A. Yes. Q. Now, in respect of any of those three parcels that you have told us about, did you open any of those parcels? A. No. No, not at all." (T 342-346) [My emphasis.] 20 The appellant then gave evidence that he located the address in Thailand, recorded on Exhibit AF, of the sender of the parcel but his enquiries were wholly unsuccessful in locating the actual sender. 21 It is necessary then to note the opening lines of cross-examination by the learned Crown Prosecutor: "CROWN PROSECUTOR: Mr Besodi, I think you have said you don't know anyone called John Ken, is that right? A. Beg pardon. Q. You don't know anyone called John Ken? A. Not at all. Q. You don't know anyone called Mike Williams? A. No, not at all. Q. You also don't know anyone by the name of Thomas Davkis? A. Not at all, not at all. Q. Do you know anyone by the name of Joseph Amos? A. No, not at all. Q. You know anyone of the name James Peterson? A. No. Q. Do you know the names of anyone who sent these parcels? You have described receiving and returning the three parcels that you said that you returned to the post office at North Sydney and at Frenchs Forest? A. No, I don't remember. But I know they are the source, where it come from. Q. Are you saying you don't know the names of the senders of any of those parcels? A. No. Q. Are you agreeing with me? A. Beg your pardon. Q. You are agreeing with me you don't know the names of the senders of any of those parcels? A. No. Q. Are you agreeing with me? A. Beg your pardon. Q. You are agreeing with me you don't know the names of anyone who sent those parcels? A. Know who send me. Q. Yes. A. No, not at all. Q. Do you know anyone whom any of those persons were addressed? A. What. Q. Sorry, that wasn't a very good picture. You have described returning three parcels? A. Yes. Q. Did you know the people to whom those parcels were addressed? A. To trade. I don't understand. Q. Each of those parcels had a name they were being sent to? A. Yes. Q. Do you know the names of the people those parcels were being sent to? A. No, not at all. Q. So the effect of your evidence is that you have received four parcels that were not addressed to you, is that right? A. One in Frenchs Forest, one residential, and one in North Sydney, Australia Afghan Association. One in Crows Nest. Three parcel, I think. Q. Pass the parcel in this case, this parcel, exhibit E? A. Yes. Q. So you have received here, it is here, this one? A. Yes, that is correct. Q. So you have received four parcels? A. Yes. Q. That were not addressed to you? A. Yes. Q. Is that right? A. That is correct. Q. You say you returned the first three, is that right? A. Yes. I did. Q. Did you take those other three away from the post office? A. What. Q. The other three parcels that you say you returned? A. Yes. Q. Did you take them away from the post office at Frenchs Forest, at North Sydney, or at Crows Nest? A. Yes, I return it. I didn't open it. I gave it back to the Frenchs Forest, as well as the North Sydney, as well as in Crows Nest. Q. Do did you take those three parcels home? A. No, not at all. Q. Did you take them away from the post office? A. No. Q. So you looked at them and saw immediately that they weren't for you, is that right? A. Yes, yes. Q. You immediately returned them, is that right? A. Yes, I think so, yes. Q. Just in relation to the first of those parcels, you used to live in Frenchs Forest, is that right? A. Yes. Q. You got the post office to hold your mail, is that right? A. Yes, that is correct, yes. Q. You collect your mail from there from time to time? A. Yes, I do. Q. You were known at that address, the Frenchs Forest address, is that right? A. Beg your pardon. Q. You were known at that address? A. Yes. Q. There was no secret that you lived there? A. No, because my house was burn up about five, six months ago. Then only the mail, because previously some others were sending, then I told my post office to hold some mail coming to my address in Frenchs Forest. Q. So it is no secret you lived there, is that correct? A. Yes, that is correct. Q. That first parcel was to that address at Frenchs Forest, is that right? That first parcel was to your address at Frenchs Forest? A. The first parcel. Q. Yes. A. No, I received many other parcel. Q. You have described returning three parcels? A. Yeah, return that was not in my name. Q. It wasn't addressed to you, is that right? A. Yeah. No, no, addressed to me, but -- Q. But it was addressed to your address at Frenchs Forest? A. There was others to my Frenchs Forest. Q. That wasn't from anyone you knew, is that correct? A. No, that is correct. Q. Was that parcel from Bangkok? A. I don't recall it. I don't know from where. I think so, yes. Q. You think it was? A. Yes. Q. You didn't open that parcel, did you? A. Beg your pardon. Q. You didn't open that parcel, did you? A. I did not understand. Q. The parcel that was sent to your Frenchs Forest address? A. Yes. Q. You didn't open it, did you? A. No, I didn't. Q. You say you returned it to Rodney Dayeh? A. That is correct. That is correct. Q. Do you say he can confirm you giving that parcel to him? A. Yes, he confirm. Yes, he did confirm I return it to him. Q. I suggest he cannot give any such evidence. I suggest he cannot give any such evidence? A. No, I told my solicitor I return. He spoke with them, but he confirm, and if he didn't come to the witness box, many witness don't want to come to the witness box. It's not my fault. Q. Your solicitors have subpoenaed Mr Dayeh to give evidence? A. Hm. Q. Your solicitors have subpoenaed Mr Dayeh? A. Yes. Q. To give evidence? A. That is correct. Q. I suggest he cannot give evidence to support your story? A. I don't know. I don't know. Ask my solicitor. I don't know what. He came in the court, but he said I don't know. " (T 412-415) [My emphasis.] 22 It is important to note here that the reference by the Crown Prosecutor to Rodney Dayeh is the first occasion on which, during the course of the trial, the surname of this gentleman hitherto referred to as Rodney was raised. 23 The cross-examination then continued in relation to the second parcel: "Q. The second parcel that you have described returning, that was addressed to post office box 1026 North Sydney? A. That is correct. Q. Is that right? A. Yes. Q. It wasn't addressed to you by name, is that correct? A. Not my name, yes. Q. That address, post office box 1026 North Sydney, is an address that you publicly used? A. That is correct. For association. Q. It's on the letterhead of the various letters you have sent, isn't it? A. Letterhead. Q. Yes. A. Yeah, Australian Afghan Association. Q. Post office box 1026 North Sydney is the address of the Australian Afghan Association? A. That is correct. Q. It's on the letterhead of the letters you have sent from that association? A. Yes. Q. Was that parcel also from Bangkok? A. Yes. Yes, is that correct. Q. Again, you didn't open that parcel, did you? A. I return it. Q. So you returned it to a woman at North Sydney post office, is that right? A. Yes. Q. You didn't give any evidence of her appearance, what did she look like. A. The woman lady. Q. Yes. What did she look like? A. She looked like Asian girl, Asian woman appearance. Q. What was her name? A. No, I didn't ask the name." (T 415-416) 24 As to the third parcel, the relevant cross-examination for present purposes is as follows: "Q. In relation to the third parcel, did you say that was from Bangkok as well? A. Third parcel? Q. We know the third parcel was from Bangkok because we have got to the consignment note? A. When, when. Q. The third parcel received at Post Office Box 821, was that also from Bangkok? A. To 821. Q. Yes. A. The one that I return it? Q. Yes? A. Yes, that's correct. Q. And you say you returned it to Grace Premnath at North Sydney Post Office? A. One I return to North Sydney Post Office as well, I received one parcel. Q. And you gave that to a woman you say a woman called Grace Premnath? A. Yes. Q. I suggest she can not give evidence for you supporting that. A. I don't know, it is up to her why she is not coming to the witness box, it is not to me, but the reality is she knows she is fully aware of the parcel because she told me -- Q. I suggest to you she can give no such evidence? A. Beg your pardon? Q. I suggest to you she can give no such evidence? A. Okay, it is up to you. " (T 420-421) [My emphasis.] 25 This is the first occasion upon which the surname Premnath was raised in evidence. 26 The appellant deposed that on 4 June 2001 (when he retrieved the postal advice card, but did not collect the parcel) a real estate agent named Roy Ten had telephoned and advised him that federal police had sought a key to his residence to enable it to be searched. He said he was not worried about that because he had not done anything wrong and police were welcome to search. He had subsequently gone to Crows Nest Post Office and checked whether he had mail but did not collect the parcel because it was not very important. He had decided that it was more important to visit someone he had heard was sick in Westmead Hospital. Mr Ten was called in the defence case and confirmed the conversation with the appellant of which the appellant had given evidence. 27 The appellant called in his case his (then) solicitor Mr Michael Chalmers to give evidence of a conversation he had with Mr Dayeh of Frenchs Forest Post Office as to his recollection of the appellant collecting and returning a parcel from that post office. Following an objection by the Crown to the admissibility of Mr Chalmers' evidence, the question of admissibility was argued in the absence of the jury. His Honour allowed the evidence. However, before the evidence was given the Crown Prosecutor and counsel for the appellant reached agreement as to the extent of the proposed evidence. The agreement is set out in the transcript as follows: "CROWN PROSECUTOR: I believe we have reached an agreed resolution to the satisfaction of both parties. What my friend proposes to do, and to do no more. AND for that reason I don't object to it, is to ask these two questions, firstly, 'After speaking to Mr Dareh (sic) on several occasions did you form the view he was unable to assist one way or the other as to whether the accused had returned a parcel to the Frenchs Forest Post Office?' and the answer will be, 'Yes'. And the second question will be, 'and for that reason you decided not to call him?' And the answer will be, 'Yes'. And the second limb that we discussed, obviously we can't bind your Honour, but we suggest jointly that it would be appropriate for your Honour to give a general direction to the jury in the course of summing-up to the effect that neither party has called the two identified postal workers and that you might expect that someone working in a post office might deal with many parcels in a day and you can infer that had either of those workers had been able to positively confirm or deny the receipt of the parcel that they would have been have been (sic) called by one party or the other had they been able to confirm or deny the receipt of the parcel. And the jury could reasonably infer they were unable to do either. HIS HONOUR: That would be a perfectly appropriate course." (T 493) 28 When Mr Chalmers was recalled he gave the following evidence in accordance with the above agreement: "SCRAGG: Q. Did you have several conversations with Mr Dayeh? A. Yes. Q. As a result of those conversations with Mr Dayeh did you form the view that he was unable to assist one way or the other as to whether or not Mr Besodi had returned a parcel to the Frenchs Forest Post Office? A. That's correct. Q. And for that reason there was a decision made not to call the witness? A. That's correct. <NO CROSS-EXAMINATION" (T 494) 29 Prior to the addresses counsel raised with his Honour the question whether either party was entitled to seek a Jones v Dunkel direction. In particular counsel for the appellant expressed concern that the Crown Prosecutor would seek a Jones v Dunkel direction in relation to the fact that the appellant had not called Mr Dayeh or Ms Premnath. 30 The discussion before his Honour was conducted on the assumption that as a matter of law it was open to the Crown to seek such a direction based, perhaps, on the decision of this Court in R v Dyers [2000] NSWCCA 335. It is now abundantly clear from the majority judgments in the High Court on appeal, [Dyers v The Queen [2002] HCA 45 (9 October 2002)] that this was a misconception. In par 5 of the joint judgment of Gaudron and Hayne JJ, their Honours said: "As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi v the Queen (2000) 205 CLR 50. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given or which others, called by the accused, could have been given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence." 31 In any event, the Crown Prosecutor expressly stated that he did not intend, in his address, to make any reference to Mr Dayeh not being called or seek any Jones v Dunkel direction. 32 In his summing-up, his Honour dealt with the appellant having received three parcels from overseas, one at Frenchs Forest, one at North Sydney and one at Crows Nest Post Offices. He reminded the jury of the appellant's evidence of having returned the parcel received at Frenchs Forest Post Office to Mr Rod who worked there (there was no issue that Mr Rod was Mr Dayeh). He then reminded the jury of the appellant's evidence that he had returned the parcel received from North Sydney Post Office to a female employee and of his evidence that he had returned the parcel obtained from Crows Nest Post Office to an employee named Grace. (There was no issue that Grace was Ms Premnath.) His Honour then gave the following direction: "We have Mr Rod and we have Ms Grace, two people identified. You didn't hear from either of them. You didn't hear from either of them as to 'Yes, I remember' or 'No, I don't remember.' Well, you might, using your commonsense, say to yourselves, 'Well, postal officers – postal items are returned to them, no doubt, regularly. Perhaps they wouldn't remember. Maybe that's why they weren't called.' And I can give you this direction, that, if they are people whom you thought might have helped, might have assisted the Crown or assisted the accused, but they were not called, it takes the matter no further. But I just mention that in passing because they were two people who were named. But let me move on." (SU 23) 33 It is convenient to turn now to grounds 1 and 2 which may be dealt with compendiously. These grounds are in the following terms: 1. The cross-examination of the appellant by the learned Crown Prosecutor caused the trial proceedings to miscarry. 2. There were inadequate directions given by the learned trial judge on the question of whether an adverse inference could be drawn against the appellant arising from the failure to call particular witnesses. 34 The primary difficulty which these grounds of appeal pose arises from the cross-examination of the appellant by the Crown Prosecutor which (it is fair to say) was undertaken without objection by counsel for the appellant at the trial. 35 Counsel for the appellant has argued, correctly in my view, that in certain respects the cross-examination was inappropriate and created difficulties for the judge to rectify any possible harm which may have been caused. 36 With all due respect to the learned Crown Prosecutor, he failed to appreciate that the line of cross-examination which he adopted, in relation to persons whom the appellant had mentioned as possible witnesses for the defence, was inconsistent with the right to silence and the onus of proof resting at all times upon the Crown. 37 This is evident from the emphasised passages in the cross-examination and, in particular, the specific questions directed to establishing that the appellant's solicitor had subpoenaed Mr Dayeh, together with the suggestion that he would not confirm the appellant's evidence. 38 This cross-examination may well have puzzled the jury who were appropriately directed by his Honour to the effect that it was for the Crown, from beginning to end, to prove the guilt of the appellant who did not have to prove anything. And further, as his Honour said, "At no time has the accused had, nor does he have, any onus of proof himself". 39 This gives rise to the question whether the cross-examination of the appellant caused the trial to miscarry. This depends on whether, in the circumstances, there were adequate directions given by the trial judge to rectify the possible prejudice which the cross-examination created. 40 This requires an assessment of the quality of the evidence independently of the problems raised by the cross-examination. A careful perusal of the oral evidence and the exhibits in the trial reveals a very strong Crown case together with explanations by the appellant which the jury must necessarily have experienced difficulty in accepting. 41 Prudently the Crown Prosecutor made no reference in his address to any alleged failure of the defence to call the two postal officers identified in the cross-examination or to suggest that their evidence could not have assisted the defence case. 42 I think that his Honour did as much as he could to defuse the issue by adverting to the fact that postal items are returned, no doubt, regularly and as a matter of commonsense postal officers could well not remember such returns. 43 Further, "... if they are people whom you thought might have helped, might have assisted the Crown or assisted the accused, but they were not called, it takes the matter no further." 44 These words would, in my view, have left the jury with the clear impression that the postal officers were of no assistance to either side. 45 As to the first ground of appeal, for the reasons which I have expressed I consider that the cross-examination was inappropriate but I do not consider that it caused the trial to miscarry. I do not think that the second ground of appeal has been established. If I am wrong in regard to the latter ground, I consider that this is a case where the proviso in s 6(1) of the Criminal Appeal Act 1912 should be applied. 46 The question of the proviso was helpfully discussed by the High Court recently in Festa v The Queen (2000) 76 ALJR 291. It is sufficient for present purposes, however, if I say that in my view, the impugned cross-examination and the steps taken to rectify the situation could not, in the circumstances have caused the appellant to lose a chance which was reasonably open to him of being acquitted: see Mraz v The Queen (1955) 93 CLR 493. 47 Finally, it was argued that the verdict was "unreasonable" by reason of the fact that the quality of the drugs was so poor that it was a strong indication, in the appellant's favour, that the despatch of the parcel was indeed designed to "set him up" as he claimed. It was argued that if a substance with higher purity had been used, the argument would be available against the appellant that it would be unlikely that somebody would risk losing such a valuable commodity merely to incriminate the appellant. 48 Counsel for the appellant stated that, in his experience, a purity as low as 6.1% was without precedent. It was submitted that this fact alone (which was not given prominence in the summing-up) raised a serious possibility that the appellant's version may be true. The verdict was accordingly, it was submitted, unreasonable. 49 It is quite impossible to elicit from the evidence as a whole any credible explanation for the extremely low level of purity of the heroin. The explanation proffered by counsel for the appellant, when evaluated in the light of the totality of the evidence available against the appellant, lacked substance. The appellant has not established, in my view, that the jury ought to have acquitted the appellant. 50 I am unable to discern any possible miscarriage of justice in this case. Accordingly, I would propose that the appeal against conviction be dismissed. 51 I turn then to the application for leave to appeal against sentence by the appellant. In his remarks on sentence, the learned trial judge gave careful consideration to what he perceived to be the role of the appellant with regard to the subject heroin. In that regard his Honour said: "There is no evidence from which it could be concluded that he was a user of heroin. It was submitted on behalf of the Crown that I would be justified, and satisfied beyond reasonable doubt, in finding that the prisoner was an organiser in the importation, whether styled as a principal or otherwise. It was submitted further on behalf of the Crown that the prisoner was not akin to a mere courier, recipient or intermediary. I have no doubt that the prisoner was not akin to a mere courier, and I have already mentioned that I have no doubt that the prisoner gave consideration to the importation whilst he was on the trip overseas in April/May 2001. Nor do I have any doubt as to the telephone calls to the person to whom he spoke, and to which I have earlier referred, as having been directly concerned with the parcel. In my view, the evidence clearly established that the prisoner looked at the parcel when he collected it from the post office and did note the addressee particulars. The evidence clearly established that the prisoner opened the parcel and the false base exposed the package. The prisoner suggested to the jury that he had a concern that the package under the false base was explosive, but that was rejected. A person who opens a parcel such as this parcel so as to expose the secreted package, and who has had the telephone conversations that the prisoner had to the city from which the parcel came and on the dates around the parcel's journey, is not a person at the lower end of the chain of distribution such as someone akin to a mere courier. I am satisfied beyond reasonable doubt that the prisoner was an organiser but, having said that, I hasten to add that I am unable to conclude beyond reasonable doubt whether he can be styled properly as principal." (SU 7-8) 52 Thus his Honour concluded that the appellant was "an organiser". 53 Insofar as subjective circumstances are concerned, his Honour noted that the appellant has been prominent in work which has been done for the welfare of refugees, and there was much evidence which spoke highly of him and how he has dedicated a great part of his life to service of the Australian-Afghan community. 54 His Honour had before him a report from Ms Helen J. Carney, psychologist, dated 2 April 2002 in relation to a consultation on 26 March 2002. 55 The report contains much helpful information in relation to the appellant's background, and his emotional and intellectual situation. 56 Psychological testing disclosed that the appellant suffers from severe problems with his short term memory. In particular. Ms Carney thought that they were related to both physiological damage and psychological trauma. The appellant informed her that he was involved in a motor vehicle accident in Afghanistan in 1972 and spent two days in a coma followed by two to three weeks suffering from amnesia. She thought this probably caused some brain damage. 57 The appellant also informed her that he experienced loss of consciousness and severe memory problems following electrical shocks administered to him during sessions of torture by the Russians and their collaborators while he was a political prisoner following the Russian coup d'état in Afghanistan. 58 Ms Carney concluded that the appellant suffers from severe depression and has a history of this problem and treatment with anti depressants. She said that he had experienced a number of very traumatic incidents in his life and has not been able to cope, despite medical treatment and medication, with all his problems. 59 Ms Carney thought that the appellant's depression had been in evidence in his behaviour while in gaol. He informed her that he had attempted to commit suicide three times in the two weeks prior to the consultation and was so depressed and distraught that he stated that he would kill himself if he had to remain in gaol for any length of time. She said that he was suffering from many depressive symptoms including loss of appetite and weight, inability to sleep, irritability, mood changes and general feelings of desperation. 60 Ms Carney said: "His memory functioning is very poor and he becomes confused and disoriented easily. He will probably require psychiatric help in gaol, as he will not be able to cope with the demands of a gaol environment and is likely to have a nervous breakdown." 61 Ms Carney concluded as follows: "Mr Besodi has been convicted of a very serious offence by a jury and despite his protestations of innocence and distraught and suicidal behaviour it is inevitable that it will be necessary to face the severe consequences associated with this type of crime. Although there appear to be a number of factors in Mr Besodi's background history and behaviour, which appear incongruent, and completely out of character it is not possible to ignore his conviction. However a lengthy prison sentence will be very detrimental to Mr Besodi's welfare and mental health and he may not survive for the following reasons. His mental condition involves very severed depression and he is likely to attempt to commit suicide again. He is adamant that he cannot live in a prison environment as he has lost his will to exist as his reputation and al the values he has stood for over the years have been irrevocably destroyed when convicted and sentenced for a crime he believes he did not commit. Current political problems in Afghanistan mean that other prisoners in gaol have threatened Mr Besodi and he will probably be victimised. Fellow prisoners who tend to attribute these features to anyone from Afghanistan have accused him of being a terrorist and one of the Taliban. They do not realise that he has been fighting against the Taliban and terrorism (and has been the victim of terror) for most of his life. This has resulted in the loss of his country, friends and family and now his freedom. As Mr Besodi is from Afghanistan he is in a politically delicate situation and faces danger from misguided and uninformed inmates and he may become a victim of their ignorance and be harmed in gaol. Further he has been actively involved in criticising some powerful and notorious drug dealers who have considerable influence in a gaol environment and he is fearful that he will be killed. Although in protective custody he lives in constant fear of reprisals. He suffers from tremors as a result of the electrical shock torture and his health is not good. After being imprisoned and tortured by the Russians and seeing what they did to large numbers of his relatives friends and fellow country men and women when in prison he has a morbid fear of gaol. The experience everyday evokes many horrific memories and images for him, which constantly disturb his emotional well being." 62 The appellant has no prior criminal record and his Honour had before him a considerable number of references from prominent members of the community and others supportive, in particular, of his valuable work for refugees and Afghan Australian relationships. In this regard he has clearly shown a high level of admirable leadership. There was also a petition signed by a considerable number of members of the Australian Afghan community who wished to express their confidence in the appellant as former chairperson of the Australian Afghan Association. 63 His daughters have obviously integrated well into the Australian community and are both attending university and working full time to support themselves. Their father's incarceration has created significant practical, emotional and psychological problems for them. So much is clear from a report dated 5 April 2002 from Dr C.K. Raju of the Frenchs Forest Medical Centre. 64 The non-parole of five years fixed by his Honour represents three eighths of the head sentence. The Court has had the benefit of reference by counsel to cases which are said to be comparable for assessment purposes, and they have been carefully considered. 65 Although his Honour referred to the subjective circumstances of the appellant and Ms Carney's report, his Honour has, in my respectful opinion, failed however to give these matters sufficient weight, which has caused error. 66 It is true that as the appellant pleaded not guilty he is not entitled to consideration under s 16A(2)(f)(g) of the Commonwealth Crimes Act 1914. He is however entitled to careful consideration with respect to the elements in par (m) ("the character, antecedents, cultural background, age, means and physical or mental condition of the person") and (p) ("the probable effect that any sentence or order under consideration would have on any of the person's family or dependants"). 67 Particularly in the light of the matters raised in Ms Carney's report the appellant is also entitled to careful consideration under s 16A(3) which requires the Court to have regard to "the nature and severity of the conditions that may be imposed on, or may apply to, the offender under [the] sentence or order". 68 As to the submissions by the Crown, Mr P. Neil SC for the Crown fairly conceded that in the light of comparative sentences this was a high sentence in terms of the sentencing discretion available to his Honour. However, he submitted that the low level of purity and weight of the subject heroin was not a primary consideration in light of the judgment of Gaudron, Gummow and Hayne JJ in Wong and Leung v The Queen [2001] 76 ALJR 79 to the effect that not only was weight not a primary consideration but in many cases the offender will not know how much pure narcotic is to be imported. That submission is well made. 69 From an objective point of view, after balancing the subjective considerations, his Honour's head sentence exceeded what in my assessment was within the discretionary range available to his Honour. This is so particularly bearing in mind that his Honour allowed an adjustment of one third pursuant to the provisions of s 16G of the Crimes Act. Thus his starting point was in excess of ten years. 70 I am satisfied therefore that the sentence imposed by his Honour was outside the discretion available to him. 71 Applying the adjustment under s 16G of one third consistently with his Honour's approach, I would reduce the head sentence to six years. Applying the same ratio to the head sentence as that used by his Honour to determine the non-parole period, I would propose that there be a non-parole period of three years nine months. 72 Thus I would propose the following orders: 1. That leave to appeal be granted. 2. The appeal allowed. 3. The sentence imposed by his Honour Judge Urquhart be quashed. 4. In lieu thereof the appellant be sentenced to imprisonment for six years to commence on 27 February 2002 and to expire on 26 February 2008. 5. That a non-parole period of three years nine months be fixed to commence on 27 February 2002 and to expire on 26 November 2005, on which date the appellant will be eligible to be released to parole. 73 MATHEWS AJ: I agree with Carruthers AJ. 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.