R v KADDOUR [2005] NSWCCA 303

Reported Decision : 156 A Crim R 11

New South Wales Court of Criminal Appeal

R v KADDOUR [2005] NSWCCA 303 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 May 2005

JUDGMENT DATE: 2 September 2005

JUDGMENT OF: Hulme J at 1; Barr J at 1; Buddin J at 1

DECISION: 1. The appeal against conviction is dismissed; 2. Grant leave to appeal against sentence; 3. Dismiss the appeal against sentence

Regina PARTIES: Kalid Kaddour

FILE NUMBER(S): CCA 2002/2502

Crown: R Cogswell SC/ D Woodburne Appellant: P Byrne SC/S Odgers SC COUNSEL:

Crown: S Kavanagh SOLICITORS: Appellant: Galloways

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0622

LOWER COURT JUDICIAL OFFICER: Woods DCJ

IN THE COURT OF CRIMINAL APPEAL 2002/2502

HULME J BARR J BUDDIN J

Friday, 2 September 2005 R v Khalid KADDOUR Judgment 1 THE COURT: On 5 February 2001 Khalid Kaddour was arraigned on four charges. In summary they were: 1. That between 1 January and 25 August 1996 at Brookvale and elsewhere he did knowingly take part in the manufacture of a prohibited drug, namely 3/4 – methyl-dioxemethylene amphetamine in an amount not less than the large commercial quantity for that drug. 2. That between 1 January and 25 August 1996 at Brookvale and elsewhere he did knowingly take part in the manufacture of a prohibited drug, namely 3/4 – methyl-dioxemethylene amphetamine in an amount not less than the commercial quantity for that drug. 3. That between 2 April and 26 August 1996 he did knowingly harbour Atilla Koller, an escaped prisoner. 4. That between 18 May and 26 August 1996 he did maliciously damage unit 4/42-44 Chard Road, Brookvale, the property of two named persons. 2 "3/4 Methyl-dioxemethylene amphetamine" is commonly referred to as MDMA and known as "ecstasy". 3 So far as the charges against the Appellant are concerned, on 10 April 2001 a jury returned a verdict of not guilty in the case of the first, second and third counts but a verdict of guilty to the fourth count and also a verdict of guilty in respect of the statutory alternative under Section 24(1) of the Drug (Misuse and Trafficking) Act, viz taking part in the manufacture of some quantity of the specified drug. 4 Pursuant to Section 32 of the Act the Appellant's conviction on the alternative charge rendered him liable to imprisonment for 15 years and a fine of 200 penalty units. His conviction on the fourth count rendered him liable to imprisonment for a maximum of 5 years pursuant to Section 195(a) of the Crimes Act. 5 On 17 May 2002, i.e. more than 12 months after the jury's verdicts, Judge Woods sentenced the Appellant in respect of his drug conviction to imprisonment for 5½ years including a non-parole period of 3 years and 5 months both such periods to commence on 2 March 2003. In respect of the malicious damage charge, the Appellant was sentenced to imprisonment for 1 year also from 2 March 2003 and in respect of this charge Judge Woods declined to set a non-parole period. 6 The particular commencing date was chosen because the Appellant had previously been sentenced to imprisonment including a non-parole period which expired on 2 March 2003 in respect of an offence of dangerous driving occasioning grievous bodily harm. 7 Two other persons were arraigned with the Appellant. One was a Mr Altaf Bhanji who faced counts for all practical purposes identical with the first 3 faced by the Appellant. Mr Bhanji was acquitted on all of these counts and also on the statutory alternative involving some quantity of drug. 8 The second co-accused was a Mr Bassam Turkmani who faced 4 counts identical with those on which the Appellant was arraigned. On or about the 35th day of the trial Mr Turkmani pleaded guilty to the statutory alternative and indicated that he would accept responsibility for the offences the subject of the 3rd and 4th counts if these were included on a Form 1. The Crown accepted this course in full discharge of the indictment against him. 9 The grounds of appeal advanced on behalf of the Appellant have been something of a moving feast but ultimately there were eight against conviction and 6 against sentence. The grounds of appeal against conviction were:- 1. The trial judge erred in his directions on the meaning of taking part in the manufacture of a prohibited drug. 2. The trial judge erred in admitting evidence that the Appellant secreted two keys belonging to him and then denied this when questioned by police 3. The trial judge erred in his directions to the jury regarding the manner in which the jury should approach the evidence the subject of ground 2 above, that is the evidence that the Appellant secreted two keys belonging to him and then denied this when questioned by police. 4. The directions given by the trial Judge on the question of impossibility or incompetence, that is whether the process in which the Appellant was allegedly involved was capable of producing MDMA, were erroneous. 5. The directions given by the trial judge on the issue of joint criminal enterprise, were inadequate. 6. The verdict of the jury on count 4 in the indictment alleging malicious damage to property is unreasonable having regard to the evidence. 7. The trial miscarried by reason of the prejudicial impact of adverse media publicity relating to the Barrister appearing for the Appellant being published during the trial proceedings. 8. The trial proceedings miscarried by reason of the fact that one of the members of the jury was a person who knew the Appellant and knew of adverse information regarding the Appellant's character and reputation. 10 It will be necessary in due course to consider the extent to which the Appellant should be permitted to rely on some of these grounds. 11 The charges against the Appellant arose in the following circumstances. On 24 August 1996 a factory warehouse being Unit 4/42-44 Chard Road, Brookvale was the subject of video camera and police surveillance. At or soon after 4.10am on the following morning the premises were observed to be on fire. According to some evidence this had been preceded by an explosion. The fire brigade attended as did police who found that a laboratory had been set up in what may be called the facilities area of the ground floor of the premises. That facilities area was divided into 3 rooms. A door from the main part of the ground floor opened into the central room which contained a sink and fridge and was the main area affected by the fire. To the east of this and entered via a doorway from the centre room was another containing a toilet and a shower cubicle. To the west of the centre room was the third of the 3 rooms and it was in this room that the laboratory was set up. 12 A hole something of the order of 3 feet square had been made in the floor of the shower cubicle and the concrete slab underneath and an area below, approximately 3 metres square, had been excavated and a cement floor and walls of bricks and Besser blocks constructed in the excavation. It was this hole and excavation which was the subject of the 4th charge against the Appellant. 13 It will be necessary in due course to describe in some detail this laboratory. It is sufficient for the moment to say that there was unchallenged evidence that, apart from possibly being incomplete in one or more respects, the equipment was of a nature appropriate for the manufacture of MDMA and there were chemicals there, at least some of which could have been used for that purpose. There was evidence that MDMA was found although the amount was unquantified and may have been very small. 14 The principal witness called for the Crown was a Mr Koller who had previously been sentenced for involvement in the manufacture of MDMA in the operation the subject of the charges against the Appellant and who had agreed to give evidence against the Appellant and his co-accused. He received a discount in his sentence for doing so. It was common ground that Mr Koller had prior experience in the manufacture of MDMA. Indeed between 1994 and early 1996, when he failed to return to prison from day release, he had been serving a sentence for a similar offence. Mr Koller gave evidence of a number of conversations with the Appellant directed to the topic of manufacture of MDMA, the taking of preparatory steps in that regard, the inspection with the Appellant of a number of premises in the course of finding some suitable, that it was the Appellant who chose those in Chard Road, that he and the Appellant excavated under the shower recess, the commencement of manufacture in a rented hotel room and then of further steps in manufacture occurring at Chard Road during which the Appellant was present "and basically doing it together" . 15 Unsurprisingly, during the Appellant's trial Mr Koller's credibility and reliability was the subject of sustained attack and this on a number of accounts. In fact in his summing up the trial judge warned the jury about danger in Mr Koller's evidence on four bases, viz. that he was an accomplice, that the evidence suggested Mr Koller was mentally disordered in some way, that there were immigration issues which might have impacted on his reliability and the latter may also have been affected by his own sentence situation. 16 There was however a deal of other evidence tending to incriminate the Appellant. This included evidence that he was involved in the selection of the premises although the lease was taken in Mr Bhanji's name, that the Appellant was at the premises on occasions, that he was involved in the obtaining of an item of equipment, unusual and suited to the manufacture of MDMA found in or adjacent to the laboratory, that his fingerprints were on a number of documents found in the premises including a recipe for MDMA found in the laboratory and that he had sought to conceal his possession of keys to some of the doors of the premises. 17 We have described the grounds of appeal as something of a moving feast. The Notice of Appeal was filed on 31 May 2002. It was against conviction and sentence and stated as the Grounds of Appeal, "To be advised once the full transcript becomes available". 18 Records of proceedings before one of the Court's registrars on 22 July 2002 notes that the transcript was still awaited. No-one seems to have questioned why reliance could not be placed on the transcript which must have been used during the trial or why, if an appeal was to be initiated, any portions of the transcript such as the addresses and summing-up which are normally not prepared until after an appeal is lodged, were not pursued in the 12 months between verdict and sentence. Be that as it may, correspondence during August and the cessation of correspondence on the topic thereafter seems to indicate that this problem was sorted out at about that time and on 9 September 2002 an Associate's Records of Proceedings – one may infer indicating a direction given – for the first time records "GOA (presumably grounds of appeal) 11/10". The document also records that the Appellant's solicitors were to "chase Reg re EXH" and that Mr Odgers was briefed. The matter was stood over for mention on 14 October. 19 Between 9 September 2002 and 30 June 2003, the matter came before a registrar on no less than 5 occasions when again grounds of appeal were directed to be filed by nominated dates. None having been filed, on 24 July the matter came before Greg James J for summary dismissal or directions. 20 An affidavit of the Appellant's solicitor filed in connection with the proceedings before Greg James J indicated that Mr Odgers had been briefed to advise and appear on the appeal, that in October 2002 he had identified a number of grounds of appeal but that he also wished to obtain a copy of the final address of the Crown at the trial. The affidavit indicated that this had become available prior to 28 April 2003. The affidavit also referred to other causes of delay including the provision of information since January 2003 which may have led to the possibility of fresh evidence being available. Greg James J adjourned the matter until 10 December, also ordering that Grounds of Appeal and submissions (of the Appellant) be filed no later than 13 October 2003. 21 The Court file does not seem to contain any document of about that time constituting simply "Grounds of Appeal". However, on or about 26 September 2003, written submissions on behalf of the Appellant and purporting to be prepared by Mr Odgers were filed which did refer to 3 Grounds of Appeal. For convenience we will label them (a), (b), and (c):- (a) The trial judge erred in his directions regarding taking part in the manufacture of a prohibited drug. (b) The trial judge erred in admitting evidence that the appellant secreted two keys belonging to him and then denied this when questioned by police. (c) The trial judge erred in his directions regarding the evidence that the appellant secreted two keys belonging to him and then denied this when questioned by police. 22 The document also contained a heading "Appeal against Sentence" and 4 paragraphs dealing with that topic. Only two or, depending on approach, possibly three reasons were advanced in criticism of the sentence imposed or of the trial judge's approach in that regard. 23 On 9 December 2003, a document entitled "Additional Grounds of Appeal" was filed. It contained 3 further grounds which we will also label:- "(d) The directions given by the Learned Trial Judge on the question of impossibility or incompetence, were erroneous. (e) The directions given by the Learned Trial Judge on the issue of joint criminal enterprise, were inaccurate. (f) The verdict of the jury on count 4 in the indictment alleging Malicious Damage to Property is unreasonable having regard to the evidence: s6 of the Criminal Appeal Act, 1912." 24 Written submissions in support of those grounds were filed on the same day. 25 On 10 December 2003 when the matter was listed to proceed, it was adjourned, 3 grounds being advanced on the Appellant's behalf to that end, viz:- The possibility of new evidence (from Mr Bassam Turkmani, a co-accused, and another person) suggesting the Appellant's innocence. The unavailability of Mr Byrne SC to lead Mr Odgers SC. It was asserted that Mr Byrne's unavailability had precluded the preparation and filing of additional grounds of appeal and submissions in support until 9/12/03. The absence of the Appellant due to errors by the Corrective Services Department had to be adjourned because the Appellant was not present. 26 That an adjournment would be sought had been foreshadowed in a letter of 4 December from the Appellant's solicitor advising of the first 2 of these matters and asserting that more time was required to properly present the appeal. 27 On that day the Court made orders that any affidavits to be relied on as fresh evidence and any submissions in relation to that evidence were to be filed and served by 6 February 2004. An Associate's Record of Proceedings before a registrar on 23 February records "no fresh evidence to be filed now". ` 28 On 15 June 2004, there was filed a document entitled "Consolidated Grounds of Appeal". It repeated the grounds we have labelled (a) to (f) and added what was described as a "Further Additional Ground filed 15 June 2004" and 6 "Grounds of Appeal on Sentence". These grounds of appeal encompassed the 2 or 3 aspects of the sentencing complained of in the submissions of 26 September 2003. The further ground of appeal against conviction, which we label, was in terms:- "(g) The trial miscarried by reason of the prejudicial impact of adverse media publicity relating to the barrister appearing for the Appellant being published during the trial proceedings." 29 The matter had been listed for hearing on 18 June 2004. On 17 June those acting on behalf of the Appellant provided the Court with some notification of the matters which in due course were encompassed by the eighth ground of appeal (which they said had only recently come to the attention of the Appellant or themselves), asked that the appeal not be dealt with to finality until those matters could be investigated but said "An adjournment of the proceedings tomorrow is not sought on behalf of the Appellant". Unsurprisingly, the proceedings were adjourned. The first formal articulation of the eighth ground of appeal was in a further version entitled "Consolidated Grounds of Appeal" filed on 24 August 2004. 30 Between 18 June 2004 and the hearing to the appeal in May of this year, there were a number of hearings before the Court or a Judge directed to the Appellant having available the evidence on which he wished to rely in support of ground 8 and there is no delay on the part of the Appellant or his advisers during this period which can be held against him. There have also been filed at various times a number of documents repeating the contents of those to which we have referred. 31 Except insofar as may be implicit in directions as to the filing of grounds of appeal or in the adjournment of proceedings, no leave or extensions of time to file or add additional grounds of appeal seem ever to have been sought or obtained. Furthermore, although the differences are not great, those acting on the part of the Appellant seem not to have troubled themselves to ensure that a ground of appeal, once enunciated, took the same form thereafter. 32 It has been submitted by the Crown that, in light of this history, the Court should not permit the Appellant to rely on Grounds 4 to 8 of the Grounds of Appeal against Conviction or on the Grounds of Appeal against sentence, numbered 1, 2, 4 and 5. In this connection the Crown referred the Court to remarks of Hodgson JA in R v Gregory [2002] NSWCCA 199 at [38] – [45] and to R v Bayliss [2002] NSWCCA 11 where the Court referred with approval to what was said by Nagle CJ at CL and Yeldham J in Regina v Lawrence [1980] 1 NSWLR 122 at p 148, inter alia that: - "On many occasions it has been observed by Courts of Criminal Appeal, that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused. See for example R v Sunderland , R v Tyrell , and R v Waterhouse . This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice to appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. 33 In R v Gregory, at [38] – [45], Hodgson JA, with whom the other members of the Court agreed, pointed out that whether an extension of time should be granted to an appellant depended to a great extent on what justice required but that considerations of justice were not confined to the situation of an appellant but must take into account also the interests of the Crown (and the community represented by the Crown), and of the administration of law generally and that one factor relevant was whether the alleged error, if established, would mean that an appellant would be entitled to an acquittal as of right, or merely to a new trial. If the latter were the case, the question would arise whether such a new trial would be fair to both sides. Other factors included the degree of future harm arising from a wrongful conviction, the possible deprivation of compensation for a wrongful conviction and past punishment and damage to reputation. 34 It is not difficult to excuse the formulation of grounds prior to the transcript of the trial becoming available and, if the events the subject of that ground only came to the notice of the Appellant shortly before 18 June 2004, the late notification of the eighth ground. However since about October 2002 those acting on behalf of the Appellant seem simply to have not bothered to comply with the rules or with directions of the registrars and to have made the assumption of which the Court disapproved in Regina v Lawrence. 35 No explanation for the magnitude of the defaults was proffered during the hearing of the appeal. However, following the hearing of the appeal, counsel appearing for the Appellant filed with the Court some further submissions directed to explaining or excusing the conduct to which reference has been made. In an introductory paragraph reference is made to comments by the bench during the hearing of the appeal directed to these topics and to the effect that these had not been addressed in submissions filed on behalf of the Appellant. The principal matters raised in these further submissions were:- (i) "that some time after the original submissions were filed, in about November 2003, there was a change in the representation of the appellant which led to a review of the grounds on which the appeal … would be based"; (ii) that after that initial change there were later developments leading to the addition of grounds 7 and 8; (iii) that on 10 December 2003 and 12 October 2004 the Appellant was not brought to Court due to an administrative mix-up and "on each occasion it was felt necessary for the matter to be re-listed in order that the appellant could be present"; (iv) that "the appellant himself raised the matters which are the subject of grounds 7 and 8 … and which might be seen to have contributed significantly to the delays which have occurred in this matter"; (v) that "until very recently, the appellant has been held in custody at Goulburn in conditions which make communication with him particularly difficult. He is given restricted access to the telephone and any visit necessarily occupies a significant amount of travelling time on the part of his legal advisers; (vi) that "the history of proceedings in RPS v R (2000) 199 CLR 620 and Fingleton v R [2004] HCA 380 demonstrate that if it is in the interests of justice to do so, considerable latitude can be given to an Appellant to permit expansion of the grounds of appeal to be relied on beyond those nominated in the original Notice of Appeal"; (vii) "the late development of the Grounds of Appeal should not stand in the way of their merit being considered by the court. If they are considered to have merit, then it is submitted leave should be granted to rely on them. If they are not considered to have merit, then it does not affect the appellant in any material way whether leave is refused or whether leave is granted and they are dismissed." and (viii) "To the extent that it is relevant to the question of compliance with the rules of the court, the Appellant relies on the terms of Rule 76 of the Court of Criminal Appeal Rules". 36 Rule 76 provides:- "Non-compliance by an appellant with these rules, or with any rule of practice, shall not, unless otherwise ordered by the Court or a judge, prevent the appeal being prosecuted, but the Court or a judge may make such amendments and give such directions as may be required." 37 In submissions in response the Crown opposed leave being given to the Appellant to rely on the post-hearing submission, pointing out that the topic of delay had been raised in written submissions of the Crown in June and October 2004 and submitting "there can be no adequate reason, and indeed none has been proffered, for the appellant failing to address the issue of delay either before, or, at the latest, during the hearing of the appeal". With this submission we entirely agree. 38 However, the Crown also sought to answer the claims made on behalf of the Appellant on substantive grounds. We do not regard it as necessary to record all that was said in this regard but reference may be made to the following. In an affidavit of one of the officers of the Goulburn Correctional Complex there were annexed records of the Appellant's phone calls and visits by legal representatives. They show that between 30 January 2001 and 9 September 2004 a legal representative visited the Appellant on 136 different dates and between April 2004 and May 2005 the Appellant attempted 1,278 phone calls and of 223 attempted legal calls, 78 were of 10 seconds duration or longer. Twenty-five 25 lasted longer than 5 minutes. 39 Although it seems clear that the Appellant has had other legal problems in addition to those the subject of the present appeal the affidavit indicates that as a significant reason for the deficiencies in the preparation or presentation of the Appellant's case the suggested ground of difficulty of contact cannot be accepted. 40 After the Crown submissions counsel for the Appellant provided yet another set of submissions by way of reply. Adverting to the affidavit just mentioned these submissions in reply say, "There is a suggestion that the Appellant has changed his representation. All that the Appellant has done is to seek a second opinion". How this assertion can be reconciled with the statement in the first set of post-hearing submissions that "there was a change in the representation of the appellant" escapes us. 41 Having regard to the fact that we do not hold against the Appellant any delays since June 2004 it is unnecessary to refer to the Appellant's absence on 12 October 2004. However, while the Appellant's absence on 10 December 2003 was undoubtedly a cause of the matter being adjourned on that date, it was quite misleading for the submissions to refer to this topic only and not to the fact that, 6 days earlier, the Appellant's solicitor had advised the court that an adjournment would be sought and asserted that more time was required to properly present the appeal. 42 The fact that it was the Appellant who wished to, or insisted on pursuing, ground 7 is of no weight. The point sought to be raised by it was taken in the trial. It was presumably earlier a considered decision by the 2 senior counsel who advised on the appeal, and between them formulated the first 6 grounds, that the seventh should not be pursued. 43 The extent of the omissions and defaults on the part of the Appellant's legal advisers provide strong grounds, if the needs of justice do not require otherwise, for the Appellant not being allowed to rely on grounds extending beyond those encompassed within the submissions of September 2003. Even these were almost 12 months after it would seem the transcript (except the Crown address) became available to Mr Odgers. 44 Furthermore, of the grounds not included in the original three, the grounds we have numbered 4, 5, 7, and 8, if made out, are grounds which would in the ordinary course lead not to an acquittal being entered but to a new trial, and this now 9 years after the time of the suggested offending. 45 Although a final decision on the issue of whether the Appellant should be allowed to rely on the grounds additional to those first raised can be left until later in these reasons, it is appropriate to mention 3 further matters. Firstly, the Court was also informed – without dissent from those who need the Court's indulgence - that since the Appellant's trial Mr Koller has been deported. Secondly, during the trial, there was no request for any redirection along the lines of the further grounds now raised and thus the Appellant has to meet the obstacle created by Rule 4, viz:- "No direction, omission to direct, or decision as to the admission of rejection of evidence given by the Judge presiding at the trial, shall, without leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless the objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal." 46 Thirdly, we reject the submission of the Appellant to the effect that "the late development of the Grounds of Appeal should not stand in the way of their merit being considered by the court. If they are considered to have merit, then it is submitted leave should be granted to rely on them." The adoption of that simplistic approach would mean that one may as well ignore a number of the rules made for the orderly conduct of the appeal process, something in which all appellants and the community generally have an interest and ignore also the principle that, so far as possible, any re-trial should be fair to the Crown and the community it represents and not rendered unfair by unnecessary delay and the common consequences of delay including loss of recollection and records. As it turns out, we do not need to decide whether the Appellant should be allowed to rely on the further submissions. Even taken into account, they do not affect the conclusions at which the Court has arrived. 47 Against this background we turn to the Grounds of Appeal individually.