Reported Decision : 142 A Crim R 527 New South Wales Court of Criminal Appeal CITATION : R v Betancur-Galvis [2003] NSWCCA 333 HEARING DATE(S) : 23 October 2003 JUDGMENT DATE : 13 November 2003 JUDGMENT OF : Studdert J at 1; Hulme J at 49; Hidden J at 50 DECISION : Appeal allowed; conviction and sentence quashed; new trial ordered. CATCHWORDS : Criminal law - trial by jury - trial judge misdirected jury - whether case appropriate for application of proviso to s6 of Criminal Appeal Act. LEGISLATION CITED : Criminal Appeal Act, s 6 Azzopardi v The Queen; Davis v The Queen (2001) 205 CLR 50 Driscoll v The Queen (1977) 137 CLR 517 Festa v The Queen (2001) 208 CLR 593 CASES CITED : Glennon v The Queen (1994) 179 CLR 1 Krakouer v The Queen (1998) 194 CLR 202 Mraz v The Queen (1995) 93 CLR 493 R v Storey (1978) 140 CLR 364 Wilde v The Queen (1987-88) 164 CLR 365 PARTIES : Regina v Jaime de Jesus Betancur-Galvis FILE NUMBER(S) : CCA 60792/01 COUNSEL : M. Cinque (Crown) H. Dhanji (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 00/11/0924 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60792/01 STUDDERT J HULME J HIDDEN J Thursday 13 November 2003 REGINA v JAIME DE JESUS BETANCUR-GALVIS Judgment 1 STUDDERT J: The appellant, Jaime de Jesus Betancur-Galvis, stood trial in the District Court following the presentation of an indictment charging him with being knowingly concerned in the importation of a commercial quantity of cocaine. The trial began on 6 August 2001 and on 10 August 2001 the jury found him guilty. The appellant was subsequently sentenced to a term of imprisonment of sixteen years six months with a non parole period of ten years six months. 2 The appellant appeals against his conviction and also seeks leave to appeal against the sentence imposed. 3 The case against the appellant was essentially based upon circumstantial evidence and evidence of his association with a man named Obiel Zuluaga Gomez (I shall refer to him here as "Gomez"). 4 On 20 July 1999 an Australian Air Express consignment arrived in Sydney from Panama. On the following day this consignment was examined by members of the Australian Customs Service. The consignment comprised an industrial floor cleaner and a wooden crate that contained four batteries. When one of the batteries was examined it was found that it contained a package wrapped in grey plastic and masking tape, inside which there was a quantity of white powder. A field test indicated this powder was cocaine. Similar packages were found in the other three batteries. Altogether the substance weighed 15.7 kilograms and contained over 9 kilograms of pure cocaine. The cocaine packages were replaced by substitute inert packages and the consignment was reconstructed with a view to there being a controlled delivery. 5 Gomez had arrived in Brisbane a week before the industrial cleaning machine. On 14 July 1999 he flew to Sydney and whilst Gomez was waiting for his luggage at the carousel, he there met the appellant. The appellant took Gomez to the city and then to a unit leased by the appellant in Edgecliff and the appellant arranged for a telephone to be connected there. On 21 July 1999 Gomez attended the office of Australian Air Express inquiring about the consignment and was informed it was not ready. Gomez then attended the office of Panalpina World Transport, a freight company in Alexandria, to discuss clearance of the consignment. On the following day arrangements were made for the collection of the consignment on 23 July 1999. 6 On 23 July 1999 the appellant made two calls from a Taxis Combined office telephone to a number in Colombia. A call to that same number had been made from a public telephone box in Brisbane on 18 July 1999, the day of the arrival of Gomez in that city. There was evidence of other calls having been made to the same number in Colombia on 23 July 1999. Surveillance on Gomez on that date established that he made two calls to Colombia shortly before midday, and that one of those calls was to the same number the appellant called twice that day on the office telephone. In addition, four further calls to that same Colombian number, two shortly before midday and two shortly before midnight, were made from a mobile phone traced to a SIM card found in a mobile phone in the possession of the appellant at the time of his arrest. There was no evidence as to the subscriber of that phone in Colombia or as to who it was that either the appellant or Gomez called on that number. 7 On the morning of 23 July 1999 Gomez attended a motel across the road from the appellant's unit at Edgecliff and booked a room for the night. That morning he collected the proceeds of two Western Union money transfers from the Pitt Street branch of Travelex Australia. One of the transfers came from Colombia, and the other from Spain. Gomez attended the Australian Air Express office at Sydney airport, where he paid the freight charge on the consignment and inquired about customs clearance. Then Gomez went to the office of Panalpina, requesting there that arrangements be made for Customs clearance and the delivery of the consignment. He was granted permission to make a call from a phone at the office of Panalpina to obtain the relevant commercial invoice for the consignment, which came from Panama (see Exhibit F). 8 It was after he left the office of Panalpina that he was seen to make the two Colombian calls mentioned earlier (see para 6). 9 At about midday, two men attended the office of Millers Self Storage at Tempe and were attended by Ms Lisa Egtberts. They made inquiries about storage for cleaning equipment and Ms Egtberts used a Millers Self Storage business card to write details of prices etc. on the back of it and she wrote her name, Lisa, on that card. The men inspected storage units at the premises at Tempe. When later the appellant and Gomez were arrested in circumstances to which I shall shortly refer, both men had a Millers Self Storage business card in their possession, and the card found in the appellant's possession had the name Lisa written on the front and details on the back consistent with Ms Egtberts' description of what she had written on the card. 10 At about 2.20 pm that same day Gomez returned to the office of Panalpina to inform staff he wanted to pay the Customs duty and clearance fees for the consignment, and he was seen to leave those premises in the appellant's car, with the appellant driving. Gomez returned to Panalpina an hour later and paid what was due on the consignment. Subsequently Gomez was advised the consignment was ready for collection and two calls were made from his motel room in Edgecliff to the appellant's mobile phone. Gomez later attended on Panalpina to arrange for the consignment to be delivered to his Edgecliff motel that evening. 11 The consignment in its crate was delivered to the motel at about 7.30 pm on 23 July 1999 and deposited in the parking area. Two calls were then made from Gomez's motel room to the appellant's mobile phone, at 8.54 pm and at 9.33 pm. At 9.50 pm the appellant was observed to enter his Edgecliff unit block and four minutes later he phoned Gomez. The call was intercepted the recorded. Gomez told the appellant that he was already in bed, but six minutes later he was seen to leave the motel and enter the unit block. Then both the appellant and Gomez left the unit block and crossed to the driveway of the motel, where they carried the crate into the lift. Shortly afterwards the appellant left the motel and travelled to his unit at Kensington. Before midnight the third and the fourth of the calls to the Colombian number he had called earlier were made on the appellant's mobile phone. 12 The next morning, shortly after 6.00 am, the appellant telephoned Gomez and this conversation was recorded (see Exhibit AA). Suffice it to state that a meeting was arranged, and within twenty minutes Gomez left his motel carrying a blue trolley bag. He walked across to the appellant's Edgecliff unit. A few minutes later the appellant entered that same unit block, and ten minutes after that both the appellant and Gomez were seen leaving that block. Gomez was carrying the same trolley bag. The two men went to a bus shelter and there the appellant hailed a taxi. As they were attempting to enter it, both were arrested. 13 The trolley bag in the possession of Gomez was padlocked but this was later found, when opened, to contain the four substituted inert packages which had been removed from the batteries. A search of the room Gomez had occupied at the motel revealed the wooden crate, and that contained the four batteries from which the controlled delivery packages had been taken. The cleaning machine was also found. 14 Among the items located in the appellant's possession were the business card from Millers Self Storage at Tempe previously mentioned, and a set of keys for the trolley bag in the possession of Gomez at the time of his arrest. At the time of arrest Gomez had the second card for Millers Self Storage in his possession, together with a key to the motel room and keys to the appellant's unit at Edgecliff. 15 At the time of his arrest the appellant indicated he did not wish to be interviewed without an interpreter and before speaking to a solicitor, but, having been taken to the police headquarters, he was asked to confirm that a property seizure record which had been prepared was correct insofar as it related to the objects taken from his possession. The appellant claimed that the keys taken were not his, although he did not deny they were in his possession. 16 Subsequently, on 4 August 1999, the appellant did participate in a recorded interview. During that interview with police he said that he had resided at Kensington for some fifteen years and was the director of a cleaning company. He had rented the unit at Edgecliff from 1998 as a city residence for his employees who from time to time needed to reach city locations early in the mornings. He said that he met Gomez by chance at the airport on 14 July 1999, although he had known him before that for a number of years. He said that Gomez told him of a cleaning machine he was importing from South America which could help the appellant with his business. Since Gomez had no pre-arranged accommodation, the appellant offered him accommodation at the unit at Edgecliff. He said he had the telephone connected at the unit at the request of Gomez. 17 The appellant said he was born in Colombia and he came to Australia in 1977. The appellant said that during the two months prior to his arrest he had made numerous calls to people in Colombia, including his family and a friend. He also said that Gomez at times changed SIM cards between his and the appellant's mobile phones. 18 At no relevant time did the appellant admit to the police an awareness of there being cocaine in the crate he had helped to move. In the police interview, and particularly between questions 173 and 197, the appellant endeavoured to explain to the police his association with Gomez, linking it to their common interest in the cleaning industry. The appellant acknowledged that he took Gomez everywhere and asserted that Gomez was "working with me all the week" (see question 173 and answer). The appellant acknowledged that he accompanied Gomez to the airport and to Panalpina and he said he was with Gomez when he picked up the money transfers at Travelex. He said he went with Gomez to the storage place (Millers). 19 The appellant said that on 23 July 1999 Gomez rang him and asked for his help to pick up the batteries to take them upstairs at the motel. He agreed that later that evening he had met Gomez at the unit and that he had accompanied him across the road to the motel and had then assisted in carrying the crate with the batteries in it to the motel room where Gomez was staying. 20 The appellant said that on the morning of his arrest, Gomez visited him "throwing himself on top of" the appellant when the appellant requested the return of the keys to the Edgecliff unit. Gomez put the keys to his bag in the appellant's pocket and the appellant said he thought these were the keys to the Edgecliff unit. Gomez told the appellant he was in a hurry because he had to go to Brisbane and the appellant went with him to a bus stand. The appellant then hailed a taxi for himself but Gomez pushed in front of him to get in the taxi before him. The arrest followed. Exhibit D, a folder of photos, contains a photo of the keys to the bag in which the packages were discovered. Those keys might be described as small keys typical of those used to lock a bag. The jury does not appear to have had before it photos of the keys to the unit. 21 Throughout the police interview the appellant asserted the belief that the crate contained only batteries for the industrial cleaner. Gomez "never mentioned anything about cocaine to me. That's the truth" (Q 282). 22 The appellant did not give evidence at the trial. The grounds of appeal 23 It is the appellant's contention that his trial miscarried because of directions given to the jury during the course of the summing up. The sole ground of appeal has been expressed as follows: "A miscarriage of justice was occasioned as a result of the trial judge (a) directing the jury that any reasonable hypothesis consistent with innocence must be advanced by the accused or his counsel before it may be considered; and (b) telling the jury, whether as a direction or as a comment, that there could only be 'one reason' for the absence of an explanation from the appellant in relation to the making of certain telephone calls from the appellant's telephone." 24 In the course of the summing up the trial judge referred to there being "a number of facets of the circumstantial evidence case". He instructed the jury that the jury was entitled to consider all the explanations advanced by the appellant "because there are a number of facets of this matter that require explanation". His Honour continued (at SU 26-28): "I do not mean to imply that the accused is obliged to explain his movements in the sense that he would carry any onus or burden of proof. I simply say this to you, that if the Crown have established that there are inferences available, inescapable inferences, that the accused knew what was going on and was in contact in fact with Columbia, and was facilitating this importation, then the next step is that the accused is entitled to have you consider, and indeed he is entitled to say to you that the Crown must exclude from your consideration, any reasonable explanation consistent with innocence. If there is a reasonable explanation consistent with innocence it will have been advanced to you by the accused, or his barrister, and you consider (a) whether it is reasonable and (b) whether it is consistent with innocence. But there is one thing I need to tell you and it is my duty to tell you, that there has been no explanation advanced, reasonable or otherwise. And I tell you this quite clearly so that you be in no doubt about it, there is no explanation advanced for the accused having rung, on the Crown case six times, on the accused's case four times, that particular number in Columbia, the number from which Gomez was perfectly clearly receiving instructions and the number which Gomez rang in order to get the invoice sent to Panalpina. Now there is no explanation advanced and there could only be one reason for that. And I here express of you as to the fact because as a matter of law I am obliged to tell you. That if there was an explanation available for that, an explanation would have been advanced to you in the record of interview, or advanced to you by the accused's counsel during his address. I do not know that I can put it more clearly than that. And if I there express a view as to the facts or course you must ignore that view unless it happens to accord with your own individually reached conclusion, but I tell you as a matter of law that before you can consider a reasonable explanation consistent with innocence, for that particular part of the Crown case, you must at least have an explanation advanced to you that could be either considered reasonable and/or consistent with innocence." 25 Mr Dhanji, on behalf of the appellant, submitted that the effect of the above instruction was that the jury was directed that a reasonable hypothesis consistent with innocence had to be advanced by the appellant before it could be considered and that no such hypothesis had been advanced. The jury was also told "there could only be one reason for that". It was submitted that those instructions should not have been given, and, in my opinion, this is correct. His Honour's directions were plainly erroneous. 26 Indeed, the Crown here concedes that the trial judge was in error in directing that, as a matter of law, a reasonable explanation consistent with innocence was required to be advanced by the accused or his counsel before it could be considered by them. The Crown also concedes that the instruction that there could only be "one reason for the absence of an explanation" from the appellant concerning the phone calls made to Colombia was impermissible, whether it was to be regarded as a direction or as comment. 27 After the judge had completed the summing up, correction was sought by counsel in relation to the directions here complained of, but his Honour declined to revisit the issue. 28 Since the jury was wrongly directed, the ground of appeal has been established. The only remaining issue on the appeal against conviction is whether the case is an appropriate one for the application of the proviso to s 6 of the Criminal Appeal Act. 29 The circumstances for the application of the proviso in s 6 (or its equivalent) have been the subject of frequent consideration but I make reference only to the following cases: Mraz v The Queen (1995) 93 CLR 493, and in particular the judgment of Fullagar at 513-515; R v Storey (1978) 140 CLR 364, and in particular the judgment of Barwick CJ at 376; Driscoll v The Queen (1977) 137 CLR 517, and in particular the judgment of Barwick CJ at 524-525; Wilde v The Queen (1987-88) 164 CLR 365, and in particular the joint judgment of Brennan, Dawson and Toohey JJ at 371-373; Glennon v The Queen (1994) 179 CLR 1, and in particular the judgment of Mason CJ and Brennan and Toohey JJ at 7-8; Krakouer v The Queen (1998) 194 CLR 202, and in particular the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ at paras 20-24; and Festa v The Queen (2001) 208 CLR 593, and in particular the judgment of McHugh J at paras 110-123. 30 Consistently with those decisions, the Crown recognised that the proviso has no application: 1. if the directions erroneously given amounted to an irregularity "which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": Wilde at 373; or 2. if that were not so, the appellant nevertheless "lost a chance that was fairly open to him of being acquitted": Mraz at 514; or, expressing it somewhat differently, it could not be said the case was one in which the appellant would "inevitably have been convicted", assuming "no blemish in the trial": Wilde at 372. 31 The Crown submitted that the misdirections did not constitute a departure from the essential requirements of the law and that the misdirections did not go to the root of the proceedings. Further, the Crown submitted that the case for the prosecution was so strong that if the trial judge had not erred in the way in which he did a conviction was nevertheless inevitable. 32 Mr Dhanji, for the appellant, joined issue on both these submissions. 33 The issue concerning the strength of the Crown case calls for this Court to make its own assessment of the evidence. It seems to me that the Crown case was, indeed, very formidable. I have in mind in particular the evidence as to the following: (a) the circumstances of the meeting at the airport between the appellant and Gomez; (b) the close association between the appellant and Gomez thereafter and the assistance provided by the appellant to Gomez; (c) the nature of the joint activities conducted during that association; (d) what occurred, as earlier reviewed, between the time that the crate containing the batteries was delivered at the motel and the time of arrest the following morning; (e) the appellant's possession at the time of arrest of the keys to the bag containing the substituted packages; (f) the coincidence of the telephone calls which both the appellant and Gomez made to the same number in Colombia. 34 The explanations which the appellant gave to the police (i) as to the chance nature of his meeting with Gomez at the airport; and (ii) as to how the appellant came to have the keys to the bag containing the packages in his possession seem to me to be unlikely to be true. 35 So it is that I assess the Crown case as very formidable. 36 Mr Dhanji submitted that this Court should nevertheless not conclude that conviction would have been inevitable if the jury had been properly instructed. In relation to the particular telephone calls to Colombia, the appellant told police he had friends and relatives in Colombia that he called and the police did not ask him about the particular calls made on 23 July 1999. Had they done so, he may well have advanced an entirely innocent explanation. 37 I find it unnecessary to determine whether, notwithstanding what I perceive to be the strength of the Crown case, the appellant "lost a chance fairly open to him of being acquitted", because I have otherwise concluded this to be a case in which the proviso should not be applied. I have come to this conclusion because of what I perceive to be the fundamental significance of the misdirections. 38 Mr Dhanji was correct to observe that the erroneous directions were given just before the jury was asked to retire and consider its verdict. Earlier in the summing up (AB 149) the trial judge had correctly instructed the jury as to the burden and standard of proof, and at the commencement of the passage of the summing up set out at para 24 above his Honour told the jury he did not "mean to imply that the accused is obliged to explain his movements in the sense that he would carry any onus or burden of proof", and his Honour then told the jury "[the accused] is entitled to say to you that the Crown must exclude from your consideration any reasonable explanation consistent with innocence." 39 However, his Honour then gave the jury instruction (AB 170) that if there was a reasonable explanation "consistent with innocence", it would have been advanced by the accused or his barrister. His Honour then proceeded to instruct the jury that no explanation had been given. 40 I here repeat the paragraph in the summing up commencing at line 21 AB 170, correcting what are two obvious errors in the transcript, and indicating such errors by emphasis: "Now there is no explanation advanced and there could only be one reason for that. And I here express a view as to the fact because as a matter of law I am obliged to tell you that if there was an explanation available for that, an explanation would have been advanced to you in the record of interview, or advanced to you by the accused's counsel during his address. I do not know that I could put it more clearly than that. If I there express a view as to the facts of course you must ignore that view unless it happens to accord with your own individually reached conclusion, but I tell you as a matter of law that before you can consider a reasonable explanation consistent with innocence, for that particular part of the Crown case, you must at least have an explanation advanced to you that could be either considered reasonable and/or consistent with innocence." 41 With respect to his Honour, those directions are fundamentally flawed. 42 The offending direction might be taken as containing comment. Even so, and to the extent that it may be so regarded, what his Honour said was impermissible. In their joint judgment in Azzopardi v The Queen; Davis v The Queen (2001) 205 CLR 50 at 75 Gaudron, Gummow, Kirby and Hayne JJ said at para 68: "It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the Crown case." 43 This was not one of those "rare and exceptional" cases for judicial comment, but, as I read the instruction the jury was given, it went beyond comment and involved direction in law as to how the jury was to approach the failure of the appellant to offer an explanation. 44 In the above paragraph, taken in context, the jury was instructed as a matter of law that before it could consider a reasonable explanation consistent with innocence for the making of telephone calls to Colombia, it was necessary that such an explanation be advanced by the appellant or his counsel. The jury was further instructed that the absence of such an explanation, and the jury had already been reminded that none had been advanced, was inconsistent with innocence. This could only have been viewed in context as instruction that the absence of an explanation was inconsistent with innocence in relation to the offence charged. Mr Dhanji submitted that this amounted to an invitation to the jury to find the appellant guilty merely because no innocent explanation had been advanced for the making of the phone calls to Colombia. I consider that submission to be correct. 45 In Wilde (supra) in the course of the joint judgment earlier referred to, their Honours said this (at 372-373): "…the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR, at p 527.); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143, at p 148.; Reg. v Henderson [1966] VR 41, at p 43.; Reg. v Couper (1985) 18 A Crim. R 1, at pp. 7-8." 46 Their Honours went on to say (again at 373) "There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted... In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances." 47 In my opinion, in the circumstances of the present case the errors in the directions given were of such a fundamental kind that the proviso should not be applied. In the result, I consider the conviction must be quashed and it becomes unnecessary to consider the application for leave to appeal against sentence. 48 Accordingly, I propose the following orders: 1. That the appeal be allowed; 2. That the conviction and sentence be quashed. 3. That a new trial be ordered. 49 HULME J: I agree. 50 HIDDEN J: I agree with Studdert J. ********** Last Modified: 11/14/2003 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.