New South Wales Court of Criminal Appeal CITATION: Regina v Graham [2005] NSWCCA 127 HEARING DATE(S): 1 April 2005 JUDGMENT DATE: 1 April 2005 JUDGMENT OF: Grove J at 1; Howie J at 36; Hall J at 37 DECISION: APPEAL DISMISSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - TRIAL - ACCUSED GIVES AND CALLS NO EVIDENCE - ESSENTIAL ISSUE OF KNOWLEDGE OF PRESENCE OF DRUGS IN DESPATCHED PACKAGE - DENIAL BY ACCUSED IN LENGTHY VIDEO INTERVIEW - FAVOURABLE DIRECTION TO ACCUSED THAT CONTENT OF VIDEO AVAILABLE TO JURY IN SAME WAY AS OTHER EVIDENCE - NO APPLICATION FOR DIRECTION OTHERWISE - NO MISCARRIAGE - RULE 4 APPLICABLE - VERDICT NOT UNREASONABLE s12 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 s38 Evidence Act 1995 Azzopardi v The Queen 2001 205 CLR 50 R v Abusafiah 1991 24 NSWLR 531 R v Bozzola [2001] NSWCCA 8 R v Giri [2001] NSWCCA 197 R v Knight, unreported CCA 18 December 1990 R v Morris 2004 147 A Crim R 99 CASES CITED: R v OGD 1997 45 NSWLR 744 R v SMR [2002] NSWCCA 258 R v Prasad 1979 2 A Crim R 45 R v Richards 2002 128 A Crim R 204 R v Tripodina 1988 35 A Crim R 183 R v Wilson [2005] NSWCCA 20 PARTIES: Regina v Kelly Anne Graham FILE NUMBER(S): CCA 2004/3312 P. Barrett (Crown) COUNSEL: H. Dhanji (Applicant) S. Kavanagh (DPP) SOLICITORS: D. Anderson (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0827 LOWER COURT JUDICIAL OFFICER: Taylor DCJ IN THE COURT OF CRIMINAL APPEAL 2004/3312 GROVE J HOWIE J HALL J Friday 1 April 2005 REGINA v KELLY ANNE GRAHAM Judgment 1 GROVE J: Following trial before Taylor DCJ and a jury, the appellant was convicted on a single count of knowingly taking part in the supply of a prohibited drug, namely heroin. She was sentenced to imprisonment for one year and eight months with a non parole period of one year, such sentence being suspended for its term pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 2 The appellant appeals against conviction. Application for leave to appeal against sentence was abandoned. Two grounds of appeal are advanced, namely: 1. That the trial judge erred in failing to give proper directions as to the appellant's election not to give evidence. 2. The verdict of guilty is unreasonable and cannot be supported having regard to the evidence. 3 As his Honour succinctly pointed out to the jury in the course of his summing up there was really only one issue of contest at trial and that was whether the appellant knew that a package which she took to a courier service for delivery to Wagga Wagga contained a prohibited drug. 4 For some years the appellant had been in a defacto relationship with one Corey Franks. Although they ordinarily lived together at Burwood she had been staying with her mother who was ill. Franks travelled by car to Wagga Wagga with two men named Carland and Rogers for the purpose of attending a birthday party. The appellant was not present when they departed. 5 As a result of contact, the appellant, on 14 March 2003, attended at the Australian Air Express Office, Mascot, with a package containing a video which she consigned to Carland at a motel address in Wagga Wagga. She paid $151.40 for the package to be taken on the next flight departing from Mascot to that city. 6 In accordance with routine procedures the package was scanned and later inspected by Australian Air Express. Within the package were found a number of small bags, ultimately demonstrated to contain a total of 5.32 grams of heroin. 7 The delivery of the package was permitted to go forward. Under police surveillance it was delivered to Carland at the motel. Police then entered the motel room, the door to which was opened by Franks, and discovered Rogers and Carland also there. The package had been opened and the video cover and tape were lying on the floor of the unit. 8 The video in fact showed some activity of the appellant's son. Later examination detected her thumb print on the left hand corner of the tape. 9 On 18 March 2003 police left a message for the appellant in response to which her legal representative contacted them stating that she was willing to participate in a recorded interview. This took place at Burwood Police Station on 21 March 2003, after which she was charged. 10 In the record of interview she stated that she received a phone call from Franks on her mobile phone at about 4 pm on 14 March 2003. She was told that a birthday present had been left behind at Burwood and she was asked to pick it up. Rogers came onto the phone and gave instructions as to how to have it sent to Wagga Wagga. She said that Rogers told her it was a pornographic video package, and that she would need to tell the courier company what the content was. Franks told her that Rogers had provided him with money to reimburse her for the cost of despatching the parcel. 11 In the course of interview the appellant gave different details. She said that she received the phone call when she was at her mother's home but later stated that she was in the city where she had been with her mother during the day. At various times she said that she went to Burwood by bus or obtaining a lift from a friend named Julie. 12 She said that when she obtained the package it was wrapped in silver "Happy Birthday" paper and was sitting on a table in the lounge room. She caught a train from Burwood to Central Station. Franks had told her to take a taxi to the airport but she was concerned about having enough money to despatch the parcel and take a taxi and she did not think that she would be reimbursed for the latter cost. Her friend Julie gave her a lift to the airport. 13 Evidence showed that she attended the counter of the Mascot office of Australian Air Express between 5 and 6 pm, that is to say within a couple of hours of the phone call which she said she had received. 14 As is implicit in the first ground of appeal, the appellant did not give evidence at trial, nor did she call evidence. The Crown at her request called Corey Franks but was given leave to cross examine him pursuant to s 38 of the Evidence Act. 15 At the close of the case for the Crown (T147) counsel stated in the presence of the jury: "The accused will be relying on her record of interview and other evidence in the case as far as her case is concerned". 16 The interview was lengthy, containing over three hundred questions and answers. It was recorded on video tape and this was played to the jury. The appellant always denied knowledge of the presence of narcotics in the parcel. 17 Immediately following the remark of counsel quoted above, his Honour told the jury about the following steps in the trial and referring to counsel saying that he was not calling evidence, he told them: "I will make this clear to you in my summing up to you, but he having just made that remark, I will make the point now, that it is not for the accused to prove anything in the case. It is for the Crown to prove the case, to satisfy what I will identify to you as the essential ingredients of the case beyond reasonable doubt. The record of interview has been played for you and that is evidence in the case which you take into account in the same way as you evaluate any other evidence that you have heard." 18 The final sentence of his Honour's remarks did not qualify the content of the interview by referring to its hearsay nature or the absence of subjection to cross examination. To that extent, it was more favourable to the appellant than an application of her strict entitlement. 19 However, in the course of his summing up, the learned trial judge did not return to the absence of testimony from, or evidence on behalf of the appellant. This was not the subject of complaint or application by counsel appearing at trial. An affidavit by counsel states that the absence of seeking directions concerning the fact that the appellant did not give evidence was an oversight and not the result of a tactical decision. 20 His Honour gave firm and impeccable directions concerning the necessity for the Crown to discharge its onus of proof. However, counsel for the appellant, who did not appear at trial, relies upon the now oft quoted passage from the joint judgment in Azzopardi v The Queen 2001 205 CLR 50 viz: "In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly, that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt." 21 Counsel also sought to rely upon R v Macris 2004 147 A Crim R 99, where it was held, in effect, that it was erroneous in law to omit to incant all four of the elements of warning in the passage from Azzopardi above cited. In R v Wilson [2005] NSWCCA 20 the Court constituted by Hunt AJA, James J and myself, held that the decision in Macris was wrong and should not be followed. The leading judgment was given by Hunt AJA and I gave express reasons for my assent to his view about the incorrectness of Macris. I see no reason to alter my view in that regard. 22 In the present instance, there was no warning of the type postulated as being almost always desirable in Azzopardi. 23 A similar situation arose in R v Richards 2002 128 A Crim R 204, in which Levine J (Hodgson JA and Howie J agreeing) said of submissions similar to those now made: "As I have observed, it is now contended that the failure to give directions as they evolved in the course of submissions, now went to matters fundamental to, or at the root of, the trial. The first observation that can be made, in my view, is that even in Azzopardi the High Court cannot be taken to have ruled that in every case it is compulsory let alone desirable, in terms of the fundamental requirements of justice, for a direction of the kind now sought, to be given. Secondly, here this Court is concerned with the complete absence of directions. It must be borne in mind (though taking into account at each trial appeal will depend upon its own circumstances), that misdirections on matters said to be 'fundamental' neither necessarily nor as a matter of course can be characterized as going to the core of the trial or amounting to a fundamental defect: Azzopardi ; R v Bozzola [2001] NSWCCA 8; R v Giri [2001] NSWCCA 197". 24 It was also observed in R v SMR [2002] NSWCCA 258 by Carruthers AJ (Mason P and Hidden J agreeing) that Azzopardi did not state that a direction of the type under consideration was mandatory in every case. His Honour observed: "It is not every case in which counsel for the defence would necessarily consider that his or her client was well served by such a direction." 25 In the present case the appellant had before the jury a lengthy video taped interview in which she emphatically denied the issue contended against her by the Crown that she had knowledge of the presence of drugs in the package. As I have pointed out it was available to the jury without limitation as to its quality. Given the narrow issue of knowledge, the applicant already had the advantage of the invitation to treat her denial in the interview as evidence in the same category as the evidence in the case otherwise. In those circumstances I am unpersuaded that the absence of direction of the type now sought led to miscarriage of justice. 26 It is acknowledged that Criminal Appeal r 4 applies by reason of the absence of any application for his Honour to give the direction now canvassed. When leave is required under r 4 it is for the appellant to persuade the Court that miscarriage of justice may have occurred: R v Tripodina 1988 35 A Crim R 183. It is once again apt to repeat what was said by Hunt J in R v Abusafiah 1991 24 NSWLR 531: "The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial." 27 I would refuse leave to rely upon ground 1. 28 It is recognized by the appellant that the sole issue is whether the evidence was sufficient for the jury to find that the appellant knew that the package contained a prohibited drug. It was contended by the appellant that the prosecution relied upon five basic circumstances: (a) That the appellant took the parcel to Mascot and arranged for "next flight" delivery to Wagga Wagga. (b) That she paid $151.40 for delivery. (c) That the address supplied by the appellant on the consignment was not her address. (d) The mobile phone number supplied by the appellant on the consignment was not hers, and (e) The appellant's left thumb print was found on the video cassette. 29 The appellant had contended in her interview that the false addresses and telephone numbers were supplied by her to the freight forwarding courier in accordance with a request from Rogers. As the video in fact contained footage showing the appellant's son at school, there was a possible innocent explanation for her thumb print appearing on the video despite her claim that the package was wrapped in birthday paper at all times that it was in her possession. 30 Whilst such explanations were offered the Crown submits that the same circumstantial case put in other language demonstrates its strength. The case can be summarized as follows: "The appellant sent a package containing a video tape packed with a prohibited drug via overnight air express to her boyfriend who had travelled to and was then in Wagga Wagga. The appellant admitted to travelling, with some difficulty, in that she did not possess a vehicle, from her mother's home to her boyfriend's residence (her usual home) to collect the video tape, which was wrapped in gift paper. From there she travelled, via a friend's house, to Mascot to an air freight office and there arranged, at great expense, for the video tape, which she claims she believed to be a pornographic tape, for the tape to be air freighted on the next available flight to the place where her boyfriend was staying. This was said by her to have been embarked upon at the request of a friend of her boyfriend, notwithstanding that it would have meant that she would have been virtually without funds after using virtually all her own available cash to send the tape. She gave a false address and a false mobile telephone number to the freight forwarder when she arranged the delivery". 31 I recognize that the witness called by the prosecution to give evidence concerning the thumb print, accepted that it could have been there for some time. Nevertheless, I am unpersuaded that it was not open for a jury to reject the innocent explanation for the difficult and expensive foray which was, as the time frame shows, conducted with what might reasonably be viewed as a matter of some urgency. His Honour's comment to counsel in the absence of the jury that it was a strong circumstantial case was plainly correct. 32 It is noteworthy that in the absence of the jury just prior to the close formally of the prosecution case, counsel at trial did not submit that there was insufficient evidence fit to be considered by the jury but rather that the jury might be invited to consider bringing in a verdict of acquittal upon the close of the Crown case: R v Prasad 1979 2 A Crim R 45. 33 This is not a case where disbelief of the appellant's version left the Crown case unproved. At the very least it was open to them to reject the explanation of the appearance of the thumb print on the video which necessarily carried with it a knowledge by the appellant of the content of the parcel which the appellant had claimed to have only seen already wrapped in "Happy Birthday" paper. 34 I would reject ground 2. 35 I propose that the appeal against conviction be dismissed. 36 HOWIE J: I agree. Insofar as counsel for the appellant argued that an OGD warning or direction was required, I wish to express my respectful agreement with the view expressed by Hunt AJA in Wilson at 14 that such a direction is not normally required. I would go further and indicate my view that such a direction should not normally be given. It may have the tendency to lead the jury to consider what reasons the accused might have had for not giving evidence whereas in the usual case such an enquiry is completely irrelevant. Otherwise I agree with the reasons and the orders proposed by the presiding judge. 37 HALL J: I agree with the reasons and the orders proposed by the presiding judge. 38 GROVE J: The order of the Court therefore is the appeal against conviction is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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