Regina v Kardoulias [2005] NSWCCA 150

New South Wales Court of Criminal Appeal

CITATION: Regina v Kardoulias [2005] NSWCCA 150

HEARING DATE(S): 16 July 2004

JUDGMENT DATE: 22 April 2005

JUDGMENT OF: Wood CJ at CL at 1; Adams J at 2; Smart AJ at 3

DECISION: Appeal against conviction dismissed

CATCHWORDS: Conspiracy to import prohibited drug (heroin) - Verdict was reasonable and amply supported by the evidence - open to a jury to be satisfied beyond reasonable doubt of the guilt of the accused.

LEGISLATION CITED: Customs Act 1901

M v The Queen (1994) 181 CLR 489 MFA v The Queen (2002) 213 CLR 606 CASES CITED: R v Scienczuk (1981) 5 A Crim R 243 R v Greenfield (1973) 3 All ER 1050

PARTIES: Regina v Spiros Kardoulias

FILE NUMBER(S): CCA 60242/04

(A) P Boulten SC COUNSEL: (C - Cwth) G Bellew

(A) Hardin Law SOLICITORS: (C) Commonwealth DPP

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0047

LOWER COURT JUDICIAL OFFICER: Nield DCJ

IN THE COURT OF CRIMINAL APPEAL 60242/04 WOOD CJ at CL ADAMS J SMART AJ

Friday, 22 April 2005 Regina v Spiros KARDOULIAS JUDGMENT 1 WOOD CJ at CL: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed, and with the reasons of his Honour. 2 ADAMS J: I agree 3 SMART AJ: Spiros Kardoulias appeals against his conviction of a charge that between about 5 August 2001 and about 4 April 2002 at Sydney he conspired with Rafael Leonardo Andres, Raed El Akkaoui, Petros Kastellorizos, Rivadavia and others to import into Australia prohibited imports to which s 233B of the Customs Act 1901 applied, to wit, narcotic goods being not less than the trafficable quantity applicable to heroin. Kastellorizos and the appellant were tried together. The former was acquitted. It was his case that he was not a party to any agreement to import heroin into Australia, rather he was a messenger or an errand boy or a lackey for his cousin, the appellant. The appellant also seeks leave to appeal against the sentence imposed, namely 13 years 6 months with a non-parole period of 8 years 6 months, contending that it is too severe. 4 The Crown has appealed against the alleged inadequacy of the sentence imposed. Both sentence appeals were stood over to be determined at a later date. 5 There is one ground of appeal against conviction, namely, that the verdict of the jury was unreasonable, or cannot be supported, having regard to the evidence. It is contended that the jury, acting reasonably, ought to have entertained a reasonable doubt about the appellant's guilt because the evidence was incapable of convincing a reasonable jury that there was no reasonable hypothesis consistent with the appellant's innocence of the conspiracy charged against the appellant as particularised at the trial. 6 While the ground of appeal necessitates careful consideration of the whole of the evidence, a brief outline of the facts follows: 7 The importation which resulted from the conspiracy involved a parcel being shipped through FedEx (Federal Express), an international freight forwarding company. The parcel was lodged at FedEx's Hong Kong depot and included in its container which was transported by air from Hong Kong to Sydney. In the normal course the parcel (unopened) would be delivered to the Sydney depot of FedEx. However, in the present case the parcel was intercepted and found to contain heroin in two blocks, weighing 1395 grams. They contained 708.5 grams of pure heroin. The heroin was removed, an inert substance substituted, the parcel re-assembled and delivered to FedEx. 8 In late February 2002 two men, named Stefano and Andrew arranged to lease premises at 1395 Botany Road, Botany. The name of Comparts Solutions was subsequently used. On 7 March 2002 a package was delivered to the FedEx depot in Hong Kong addressed to Comparts Solutions, 1395 Botany Road, Botany. The shipper was shown as Buying Agent Trading Company with an address at Nathan Road, Kowloon, Hong Kong. The FedEx documents recorded the contents of the package as computer software valued at $US400. That package was accompanied by an airways bill. That package arrived in Australia on the morning of 8 March 2002. On the Crown case this package did not contain any prohibited substance but was consigned as a dummy run to ascertain whether it was possible to import a quantity of a prohibited drug intro Australia through the FedEx system. 9 On 11 March 2002 FedEx arranged for the package to be delivered to 1395 Botany Road, Botany where Umit Aksu, at the request of El Akkaoui, accepted it and after emptying its contents into his backpack took the contents to his home from which it was later collected by El Akkaoui. 10 During the morning of 4 April 2002, a package similarly addressed and purporting to be from the same sender and lodged on 3April 2002 with FedEx in Hong Kong arrived by air freight, and was intercepted by Australian Customs and the Australian Federal Police. The wholesale value of the heroin it contained was estimated to range from $308,000 to $520,000. After the heroin had been removed, the inert substance substituted and the package reassembled, it was made available to FedEx. Its subsequent delivery was facilitated by Andres and Rivadavia. 11 In the meantime El Akkaoui had alerted Aksu to be available to collect the package. About 5pm on 4 April 2002 El Akkaoui drove Aksu to the FedEx World Service Centre at Alexandria from which Aksu collected the package. The security camera system which should have recorded this was not working. After collecting the package Aksu returned to El Akkaoui, who was waiting nearby in a car, and gave the package to him. About 6.35pm he handed a backpack containing the substitute blocks to a man called Nitsas. 12 Andres, who started with FedEx in February 1997, held the position of Customs Manager throughout the period charged. His responsibilities extended to liaising with relevant government agencies including the Australian Customs Service, the Australian Quarantine Inspection Service and the Australian Federal Police and also to the selection, training and disciplining of the subordinate staff who attended to Customs requirements for the importation and exportation of shipments. 13 On 10 October 2001 Andres also became responsible for overseeing FedEx's security operations, including 24 security cameras and the associated recording equipment which was located in his office. 14 Rivadavia was also an employee of FedEx, starting there on 1 December 1997 and holding a number of positions. On 25 February 2002 he was appointed Associate Classifier. In that position he came under the direct supervision of Andres and was responsible for processing FedEx computer entries to Customs and for liaising with customers to ensure the prompt clearance of incoming shipments. He had been in daily contact with Andres during the period of the conspiracy, accepted calls from the appellant and had passed on messages between Andres and the appellant and others. Rivadavia played an active role in causing the delivery of the parcel (as reconstituted) to Aksu, whom El Akkaoui had arranged to collect the parcel from FedEx. 15 El Akkaoui was recruited by Andres and accepted into the conspiracy in August 2001. He acted as a liaison person between Andres and the appellant and Kastellorizos, who was retained by the appellant. 16 On 5 August 2001 the appellant, who had just returned to Australia from Greece, contacted Andres by telephone to arrange a meeting later that day. That meeting took place. Thereafter there were many conversations and meetings between Andres and the appellant. There were frequent conversations and meetings between Andres and El Akkaoui, Andres and Rivadavia, El Akkaoui and Rivadavia and El Akkaoui and Kastellorizos. The conversations continued from 5 August 2001 to 4 December 2001. There was a gap until 9 January 2002 when they resumed and continued until 22 January 2002. There a gap until 29 January 2002 when there were two conversations. There was a gap until 8 February 2002. From that date until April 2002 there were many conversations and some meetings. The Legal Framework 17 The period of the alleged conspiracy to import extended from 5 August 2001 to 4 April 2002. The section under which the appellant was charged, namely. S 233B(1)(cb) of the Customs Act 1901 was abolished on 15 December 2001. On that date s 11.5 of the Commonwealth Criminal Code became operative. The offence of conspiracy to breach s 233B was abolished and a new statutory offence of conspiracy to breach the laws of the Commonwealth was enacted. The prosecution had to prove that the agreement constituting the appellant's involvement in the conspiracy came into existence and he became a party to it prior to 15 December 2001 and that that agreement continued after 15 December 2001. 18 The Crown contended that the primary issues on this appeal were whether the evidence adduced by the Crown was sufficient to establish that the conspiracy had been formed prior to 15 December 2001 and continued after that date. The appellant, while accepting that these were crucial matters which had to be proved beyond reasonable doubt would not accept them as the only primary issues. The appellant wished the whole of the evidence to be taken into account and contended that no reasonable jury could be satisfied that the only rational inference on the evidence was one consistent with guilt, that is, there were competing rational inferences (or explanations) consistent with innocence. 19 At the start of his summing-up the judge said: "In most trials the jury has to determine the facts upon which it will base its verdict or verdicts from within a body of disputed and competing evidentiary material. In this trial [you] have to base your verdicts upon your interpretation of a body of undisputed and unchallenged evidentiary material. The evidentiary material presented by the Crown Prosecutor and by Mr Kardoulias' counsel … is undisputed and unchallenged. You can accept that evidentiary material and you can act upon it without reservation or qualification. Your task … is to interpret the evidentiary material." 20 The evidence consisted of intercepts of telephone calls, conversations or comments recorded by listening devices and surveillance evidence. The judge further explained: "When I say … that the evidence is undisputed and unchallenged, what I mean is that the various facts such as the telephone calls, who telephoned whom, on what telephone service the call was made and to what telephone service the call was made, and the meetings, where they were held, when they were held and who attended them, and the packages, when they were sent and from where they were sent and what was contained in the two of them that were intercepted, are unchallenged and not in dispute." The Surrounding Circumstances 21 The Crown relied not only on the terms of the various conversations but what was not said and to the circumstances of the telephone calls. The Crown pointed to a number of mobile telephone services used by the appellant and others involved in the conspiracy. Service number Subscriber 0410 302 323 Raed El Akkaoui ("El Akkaoui's phone") 0414 404 112 Ruben Mas Rivadavia ("Mas Rivadavia's phone. 0419 419 613 John Poulos ("the Poulos phone") 0419 215 867 Robert Paton ("the Paton phone") 0419 243 998 Bill Eulos ("the Eulos phone") 0419 245 288 John Sarkarkis 0421 931 414 An unregistered pre-paid mobile service used by the appellant from about 9 February 2002 until at least 11 March 2002 ("the pre-paid mobile") 0418 222 240 Spiros Kardoulias 0418 020 063 Petros Kastellorizos 0405 483 090 Umit Asksu