Reported Decision: 70 NSWLR 467 New South Wales Court of Criminal Appeal CITATION: Germakian v R [2007] NSWCCA 373 HEARING DATE(S): 10 October 2007 JUDGMENT DATE: 18 December 2007 JUDGMENT OF: Giles JA; Hulme J; Hislop J DECISION: (1) The time in which to file the notice of appeal is extended to the date the notice of appeal was filed. (2) Appeal dismissed. CATCHWORDS: CRIMINAL LAW - conviction appeal - drug importation - r 4 - guilty verdict upheld. LEGISLATION CITED: Customs Act 1901 Criminal Appeal Rules R v Abusafiah (1991) 24 NSWLR 531 R v Tripodina (1988) 35 A Crim R 183 R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported) CASES CITED: R v DH [2000] NSWCCA 360 R v Soto-Sanchez [2002] NSWCCA 160, (2002) 129 A Crim R 279 R v Button (2002) 129 A Crim R 242 M v The Queen (1994) 181 CLR 487 PARTIES: Mendoza GERMAKIAN v R FILE NUMBER(S): CCA 2006/5315 COUNSEL: P Byrne SC/M Crawford-Fish (Appellant) M A Wigney SC (Crown) SOLICITORS: Gells Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0769 LOWER COURT JUDICIAL OFFICER: Murrell SC DCJ IN THE COURT OF CRIMINAL APPEAL 2006/5315 GILES JA HULME J HISLOP J Tuesday 18 December 2007 Mendoza GERMAKIAN v REGINA Judgment THE COURT: Introduction 1 On 22 September 2006 the appellant was convicted, following a trial before Murrell SC DCJ and jury, of importing goods into Australia to which s 233B of the Customs Act 1901 applied, to wit, prohibited imports consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine. 2 The appellant has appealed against conviction. The notice of appeal was filed a few days out of time. The Crown took no objection to an extension of time being granted by the Court for the filing of the notice of appeal. An extension of time should be granted in the circumstances. 3 The short facts giving rise to the charge were that on 18 May 2005 the appellant had flown into Sydney Kingsford Smith airport from Jamaica and was apprehended whilst carrying a suit bag containing two packages of cocaine sewn into its linings through Customs. 4 The appellant made various admissions, with the result that the only real issue at the trial was whether the Crown had proved beyond reasonable doubt that the appellant knew that his baggage contained a quantity of the prohibited import and that he therefore intended to import the cocaine. The evidence at the trial 5 The evidence at the trial was summarised in the Crown's written submissions. No objection was taken to the summary which was as follows: "On 26 April 2005 a return airline ticket from Sydney to Jamaica via Los Angeles was booked in the appellant's name. The outward flight was on 5 May 2005 and the return flight on 17 May 2005 - though this was subsequently changed to 18 May 2005. The ticket was paid for in cash in the sum of $2750. The appellant departed Australia on 5 May 2005. He checked in one item of baggage on the outgoing trip. He returned to Australia on 18 May 2005. Documentation seized from the appellant's luggage upon his return indicated that he stayed at an establishment named 'Big Apple' whilst in Jamaica. At 7.43 am on 18 May 2005, the appellant went through the primary line at Sydney Kingsford Smith Airport and presented his passport, ticket and incoming passenger card to Customs Officer Pauline Haddad. Having passed through the primary line, the appellant then proceeded to the baggage carousel and then approached Customs Officer Carol Farrelly. The appellant was carrying a suit bag and a duty free bag. It was the suit bag which in due course was found to have cocaine secreted within it. The evidence of Customs Officer Farrelly was that she asked the appellant whether he had all his bags and, in response, the appellant 'lifted his bags up and said "yes that's all my bags"'. The appellant then answered some brief questions asked by Customs Officer Farrelly in relation to where he had been and how long he had been there. The appellant was then directed to go to a particular baggage examination counter where he was spoken to by Customs Officer Hoyek. Customs Officer Hoyek asked the appellant a number of questions about his baggage, his knowledge of the contents of his baggage, whether he packed his bags himself, the nature of his trip and his occupation. Customs Officer Hoyek swabbed the appellant's bag with a wand that was able to detect traces of narcotics. This swab produced a negative result. The officer then commenced an examination of the appellant's baggage. During this examination she noticed that the suit bag appeared heavy. She then removed what appeared to be the only contents of the suitbag. She then observed that, despite being apparently empty, the bag still seemed full. Customs Officer Hoyek's evidence, which was not objected to, was that she then had a conversation with the appellant: Q. Did you then say this: 'Is there anything else in the bag or did I empty it out completely'? A. Yes. Q. Did he then say, 'No you have emptied it out'? A. Yes. Q. Did you then ask 'Why is it still so heavy'? A. Yes. Q. Did he then reply, 'I don't know. Isn't that the normal weight of the bag'? A. Yes. Q. Did you then say, 'No, it's not. It should be lighter'? A. Yes. Q. Did he then say, 'It's a good quality bag. Maybe that's why its heavier'? A. Yes. Q. Did he then further say, 'Why? How much lighter should it be'? A Yes. Q. Did you then say, 'Well, it should be lighter than what it is currently, anyway. I'm going to put the bag through the x-ray'? A. Yes. Customs Officer Hoyek then asked Customs Officer Southwell to x-ray the suit bag. Also present was Customs Officer Vandam. Customs Officer Vandam had a conversation with the appellant during which the appellant told officer Vandam that he purchased the suit bag a few months previous for $85.00 at 'Strandbags' at North Ryde. There was evidence that Strandbags never had a store in North Ryde. Following the initial x-ray, Customs Officer Vandam advised the appellant that there were 'inconsistencies' within the bag and he was going to take the bag to another area and may remove some of the stitching. The appellant said that 'its quite an expensive bag'. While the bag was being inspected, Customs Officer Hoyek had a further conversation with the appellant in relation to the suit bag. The evidence of Customs Officer Hoyek was as follows: Q. Did you then say, 'Did you check the bag on your way back from Jamaica to here?' A. Yes. Q. Did he say, 'I carried it the whole way from Jamaica to here'? A. Yes. Q. Did you then say, 'Why didn't you check the bag in?' A. Yes. Q. Did he reply: 'Because when I left from Sydney to Los Angeles I thought I had lost the bag in LA but didn't realise they had checked it through all the way to Jamaica, so I decided on the way back I was going to carry it all the way just in case that happened again'? A. Yes. Q. Did you then say, 'Okay, so what you're saying is that your black suit bag didn't leave your possession on your trip back'? A. Yes. Q. Did he say, 'That's right'? A. Yes. Q. Did you then say: 'And that you packed it in Jamaica in the hotel; took all your bags to the airport; then you didn't check in any of your bags; that you carried all your bags on the plane with you from Jamaica through Los Angeles, all the way to Sydney. Is that right'? A. Yes. Q. Did he say, 'That's right'? A. Yes. Whilst this conversation was occurring, other Customs Officers cut along the sewn lining of the suit bag and discovered, concealed within the lining, an object covered in brown tape between two foam mats. Within the brown tape wrapping the officers discovered a white pasty substance that was in due course tested and found to be cocaine. The suit bag, with the appellant's clothing and other possessions removed, but with packages of cocaine still within the lining, was weighed by Customs Officers. It weighed 5.215 kilograms. The packages within the suit bag were in due course removed and analysed by officers of the Australian Federal Police. The gross weight of the cocaine was found to be 3.2259 kilograms. The cocaine had a purity of between 69.7% and 73.4%. Accordingly the weight of pure cocaine was estimated to be 2.3310 kilograms. Evidence was led without objection that the wholesale value of this amount of cocaine was $548,250. The appellant was asked some further questions by Customs Officers at the airport. During that conversation, the following exchange occurred: Q. Do you recall that you told me that you purchased the bag in North Sydney at a company called Strand Bag? A. I recall our conversation. It was, it was out towards Ryde, North Ryde,. Q. North Ryde? A. Yeah. Q. Yeah. A. I did say that and I did say that it was purchased a few months ago from …(indistinct)…but I was guessing, guessing it was stolen. Q. All right. Do you recall that - do you recall that you told me on our previous occasion at the duty barrier that the purchase price of the bag was eighty five dollars. Is that correct? A. I was guessing the price it had. Look, I, I really, I'd rather not say anything until I've got some advice from here on in if that's okay. If you'll just let me know what's going on, so." The accused gave evidence at the trial and was cross examined. He denied knowing anything about the cocaine that was found in his suit bag. His evidence included that he purchased the suit bag at a store in Burwood and was mistaken when he told the Customs Officers that he purchased the bag at Strandbags at North Ryde. His evidence was that when he packed his suitbag in Jamaica 'it didn't seem suspiciously heavy' to him. He also said that 'there wasn't really a lot of security' at his hotel in Jamaica. The appellant called two other witnesses. The first was a friend of his, Ms Stynes, who gave evidence that she saw the appellant packing his bag the night before he left for Jamaica. Her evidence was that the bag she saw him packing was similar to the suitbag that the appellant returned to Australia with and that contained the cocaine. The second witness was a private investigator who had been retained by the appellant's solicitors to travel to Jamaica and 'test the veracity of the security of the hotel'." The grounds of appeal 6 The appellant relied upon five grounds of appeal. The first four grounds of appeal were as follows: Ground 1: The trial of the appellant miscarried through the use made by the Crown Prosecution of the evidence given by Customs Officer Carol Farrelly that the appellant had lifted the suit bag he was carrying to 'about shoulder height'. This evidence was not apparently anticipated to be part of the prosecution case and was not the subject of any significant cross examination of the appellant, but it was given prominence in the closing address of the Crown as behaviour showing 'cockiness' on the part of the appellant and that it demonstrated him to be a person who was 'over confident' in the knowledge that he had drugs in the suit bag. This evidence was left to the jury in the summing up of the trial judge as a feature of the circumstantial case establishing the guilt of the appellant. Ground 2: The trial of the appellant miscarried by reason of the introduction into evidence of the opinion of prosecution witness regarding the weight of the suit bag carried by the appellant. Ground 3: The trial of the appellant miscarried through the introduction of evidence of the opinion of Federal Agent Ivan Perisa regarding the 'nature of allegations involving corrupt baggage handlers at Qantas', in particular the evidence led from the witness of the fact that these cases do not involve, in the words of the Crown Prosecutor, 'an unknowing courier' and again using the words of the Crown Prosecutor, that 'they always involve a person who knows they have drugs'. These questions introduced the fact of knowledge of drug couriers that there were drugs imported in other cases which was essentially, irrelevant to the case against the appellant. Ground 4: The trial miscarried by reason of questions asked in cross examination of the appellant by the Crown Prosecutor, which implied that the appellant should call two named persons to give evidence, accompanied by the further implication that the appellant's failure to call those named persons as witnesses was of relevance or significance. 7 No objection was taken at the trial by counsel for the appellant to any of the matters raised by those grounds of appeal. Senior counsel, who appeared on the appeal (but not at the trial), accepted that he required the leave of the Court pursuant to r 4 of the Criminal Appeal Rules to rely upon those grounds. 8 The Court refused leave under r 4 in respect of appeal grounds 1-4 and indicated that it would provide its reasons with the substantive judgment 9 Rule 4 of the Criminal Appeal Rules provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence given by the judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal." 10 The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside - R v Abusafiah (1991) 24 NSWLR 531 at 536. 11 In R v Tripodina (1988) 35 A Crim R 183 at 191 this court held: "…it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously." 12 A failure by counsel to perform this duty may be explicable because: (a) he overlooked the point or was unaware of the law on the subject; (b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or (c) he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done - Tripodina (at 193 and 191). 13 Generally speaking, leave under r 4 will only be granted 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 - Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported, at 6-7) - followed in R v DH [2000] NSWCCA 360: "…unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level." 14 The onus of establishing that leave should be granted lay with the appellant. Senior counsel for the appellant conceded that Ground 2 did not go to the root of the proceedings. He submitted that Grounds 1, 3 and 4 did and in relation to Ground 4 he referred to R v Soto-Sanchez [2002] NSWCCA 160, (2002) 129 A Crim R 279 and submitted that, as a result of the questions asked by the prosecution, there was a real risk of reversing the onus of proof and accordingly leave should be granted. 15 This was not a case where any of the objections now sought to be taken were of such a nature that leave should be granted in the absence of an explanation as to why the objections were not taken at the trial. No convincing reasons were advanced on appeal as to why the objections were not taken at the trial. Counsel for the appellant at the trial was very experienced. He took none of the objections now sought to be relied upon. This was a powerful indication of how the objections now raised should be viewed. It was also a powerful indication that error, if such occurred, was not error of a kind which might produce a miscarriage of justice - R v Button (2002) 129 A Crim R 242. 16 In the opinion of the Court, the matters complained of did not go to the root of the proceedings, nor did it appear that the matters complained of were other than matters which counsel for the appellant, in the atmosphere of the trial, saw as involving no injustice or error. The evidence of lifting the suit bag was relevant, it was not objected to and its weight was for the jury. The evidence concerning Qantas baggage handlers came in response to the defence raising that corrupt Qantas baggage handlers had been involved in drug importations which, if relevant, permitted explanation of the witnesses' knowledge of the nature of the importations. Any implication that the applicant should have called other witnesses is not easy to see, and if it was apparent at the trial the appellant's counsel apparently did not think it of significance. This was not a case where a real risk of reversing the onus of proof existed. The objections, if taken at the trial, could have been dealt with by the trial judge at that time. The Court confirms its conclusion that no leave pursuant to r 4 should be granted. Ground 5: The verdict of the jury is unreasonable having regard to the evidence 17 The Crown case, in relation to the appellant's knowledge of the cocaine secreted in his suit bag, was circumstantial. In her closing address, the Crown Prosecutor drew attention to a number of circumstances from which, it was submitted, the jury would infer, beyond reasonable doubt, knowledge of the cocaine on the part of the appellant. The circumstances included the following, as fairly summarised in the Crown submissions on appeal - "(a) The fact that the appellant brought the cocaine into Australia in his own suitbag. The Crown drew attention to the implausibility of a scenario whereby a person or persons, without the knowledge of the appellant, would conceal over half a million dollars worth of cocaine in the appellant's suitbag in the absence of any obvious way of recovering the cocaine without the accused knowing once the appellant and his baggage had arrived in Australia. There was no arrangement for the appellant to hand the bag to someone upon his arrival in Australia. The appellant did not give anyone that he socialized with in Jamaica his address in Australia. The point was that this supposedly alternative scenario was not a rational or reasonable hypothesis. (b) The cocaine was apparently tailor made for and sewn into the lining of the suitbag. It was not simply placed in the bag. It could not have been quickly and easily inserted in the bag (for example by an intruder in the appellant's hotel room) without the knowledge of the appellant. The opportunities to do so would not be great. It would also not have been quick and easy for someone to remove the cocaine. It was a professional concealment. (c) The suitbag weighed over 5 kilograms (because of the presence of the cocaine) when it was apparently empty. The suggestion was that this unusual and suspicious feature of the bag would have been obvious to the appellant during his return voyage. (d) The appellant's demeanour at the airport when first spoken to by Customs Officer Farrelly: He [the appellant] approached her [officer Farrelly], she asked him, after he said where are the exits, she asked him words to the effect 'is this all your luggage' and he held up his luggage. Now it wasn't light you might think, it was at least 12 to 13 kilos that suit bag and he held it up to shoulder height when he was apparently delirious with fatigue, or almost delirious with fatigue, another factor, an important factor. In fact his evidence was 'I felt extremely tired, almost delirious and jet lagged would be the best term for it'. They were his precise words he used, yet he held up the bag like that. As I put to him about that, you might think that's consistent with a rush of adrenalin, a bit of perhaps even cockiness as he comes through knowing or believing that he has got the drugs in the bag. Sort of over confident, look I've only got this, I'm innocent, I have got nothing in my bag. (e) On the appellant's own account, the suit bag was his own, was packed by him and only he was to have custody of it. It remained in his custody or control during the entire trip home because he took it on the aircraft as cabin baggage. (f) The appellant changed his initial story about where he bought the suitbag from. His original claim that he bought it from Strandbags in North Ryde was proved to be false. (g) The Crown also drew attention to a number of implausible or inconsistent aspects of the appellant's evidence relating to his purchase of the suitbag in Burwood and the particular features he was looking for, the purchase of the ticket in cash by his friend, the unusual nature of the appellant's trip to Jamaica (he travelled alone, which was unusual for him; he stayed in the one place for the entire trip and socialized with taxi drivers and an interpreter; he purchased a telephone in Jamaica), his evidence that there was lax security at his hotel (yet he kept a large amount of cash and his other documents in his room). Nothing was apparently moved or disturbed in his room in Jamaica. His money was not stolen." 18 In M v The Queen (1994)181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 19 Senior counsel for the appellant considered each of the matters referred to in para [17] (a)-(f) individually. He asserted, in essence: (a) the appellant was an innocent dupe; (b) the fact that there was no obvious way of recovering the cocaine was not established. There were obvious ways of recovering the cocaine if the people at the end, from where the cocaine is imported, are given information, and sufficient information to identify the person who has had the cocaine, as it were, planted on them; (c) whilst he accepted that the sewing of the packages of cocaine into the suit bag could not have been done quickly and easily, it was something that professionals operating in the field with the high stakes involved and with the skills that they may be expected to have, would reasonably be anticipated to be able to find their way into a hotel room and to secrete this material in a bag without the person knowing; (d) the additional weight in the bag caused by the presence of the heroin was not so significant when there were a large number of other items in the bag; (e) a reliable inference as to knowledge could not be drawn from the reference to the appellant's demeanour being one of over confidence; (f) the fact that the suit bag was the appellant's own and packed by him and only he had custody of it was not particularly remarkable or unusual in the context of luggage that was carried onto an aeroplane; (g) the fact that the original claim as to where the suit bag was purchased was proved to be false was not a matter of great moment as it was quite conceivable that a person might be genuinely mistaken in this regard. 20 We do not find such an analysis convincing, particularly as it does not give adequate recognition to the fact that in a circumstantial case the probative force of the evidence derives from its accumulation and not from individual items of evidence taken alone. 21 In our opinion, it was extremely unlikely that the importation into Australia of a commercial quantity of cocaine valued at over half a million dollars would be trusted to a person who was unaware of its presence and in the absence of any obvious way of recovering it without that person's knowledge. 22 It was also, in our opinion, improbable that without the appellant's knowledge someone was able to enter his room, carry out the work of sewing the packages of cocaine into the lining of the suit bag and leave the suit bag apparently untouched. 23 When those factors, together with the other matters referred to in para [17] are considered, it is, in our opinion, clear that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The more so when full regard is had to the fact that the jury had the benefit of seeing and hearing the witnesses, and in particular the appellant, give evidence and were determining an issue which involved a consideration of the evidence in the light of the common experience of human affairs. Conclusion 24 The orders of the Court are: 1. The time in which to file the notice of appeal is extended to the date the notice of appeal was filed. 2. Appeal 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. 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.