New South Wales Court of Criminal Appeal CITATION: SWANSSON, David Anthony v R (Cth) [2008] NSWCCA 56 HEARING DATE(S): 13 February 2008 JUDGMENT DATE: 18 March 2008 JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Simpson J at 3 DECISION: Matter to be re-listed for the purpose of making formal orders in relation to the proposed amendments CATCHWORDS: CRIMINAL LAW – appeal against conviction – whether verdict of guilty unreasonable – multiple indictments – accessory to an attempt to import not less than the commercial quantity of a prohibited drug – knowingly take part in the supply of not less than the large commercial quantity of the drug – verdict of guilty not unreasonable – no miscarriage of justice LEGISLATION CITED: Criminal Appeal Act 1912 CATEGORY: Principal judgment M v The Queen [1994] HCA 63; 181 CLR 487 CASES CITED : MFA v The Queen [2002] HCA 53; 213 CLR 606 Swansson v R; Henry v R [2007] NSWCCA 67 PARTIES: SWANSSON, David Anthony (Appellant) Regina (Cth) (Respondent) FILE NUMBER(S): CCA 2006/5502 COUNSEL: P F Hogan (Appellant) W J Abraham QC/C S Dobraszczyk (Respondent) SOLICITORS: Gregory Goold (Appellant) Commonwealth Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1410 LOWER COURT JUDICIAL OFFICER: Woods DCJ LOWER COURT DATE OF DECISION: 10 February 2006 IN THE COURT OF CRIMINAL APPEAL 2006/5502 McCLELLAN CJ at CL GROVE J SIMPSON J 18 March 2008 SWANSSON, David v R (Cth) Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 GROVE J: I agree with Simpson J. 3 SIMPSON J: On 1 August 2005 the appellant was indicted in the District Court on a charge of being an accessory to the commission of an offence, in 2003, by Anthony Edward King and Mohamad Rhagid Alchikh, of attempting to import into Australia not less than the commercial quantity of a prohibited drug (the drug shortly known as MDMA or ecstasy). The indictment also contained an alternative count, of being knowingly concerned in the supply of not less than the large commercial quantity of the drug. Also charged were Mourad Alkarim and Robert Hands; both were charged with conspiracy to import not less than the commercial quantity of MDMA. All three entered pleas of not guilty and a joint trial proceeded. On 20 October 2005 the jury returned verdicts of guilty against the appellant on the principal charge, and guilty of conspiracy against Alkarim and Hands. Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 the trial judge, Woods DCJ, certified the appellant's case to be a fit one for appeal, specifying the basis of the certificate in the following terms: "… that the verdict is unreasonable and cannot be supported having regard to the evidence, there being a deficiency of evidence as to the requisite guilty mind." 4 The appellant appealed against his conviction. An alleged co-offender, Peter James Henry, who had been convicted in a separate trial, also appealed against his conviction. 5 The appellant pleaded six grounds of appeal, to which I will shortly return. Henry pleaded a single ground of appeal, asserting that his trial and conviction were nullities because of procedural anomalies. Both appeals were listed for hearing on 8 February 2007 before this Court, differently constituted. On that day the appellant sought and was granted leave to add a ground of appeal formulated in the same terms as that raised on behalf of Henry. 6 In a judgment delivered on 21 March 2007 this Court upheld the ground pleaded on behalf of Henry, allowed the appeal, quashed the conviction and sentence, and ordered a new trial. The only order it made in relation to the appellant's appeal at that time was to grant leave to add the fresh ground: Swansson v R; Henry v R [2007] NSWCCA 67. The remaining grounds were stood over for further hearing. It is accepted that, if those grounds are unsuccessful, then the appellant is, like Henry, entitled to orders allowing the appeal, quashing his conviction and sentence, and for a new trial. It will, however, be necessary for that process to be formalised by filing the amended notice of appeal contemplated by the Court. 7 Notwithstanding the finding that the trial was a nullity, the Court (by majority) held that it was open to the appellant to pursue the remaining grounds of appeal. This judgment is concerned with those grounds. 8 Six grounds were originally pleaded, two of which were abandoned and need not be further mentioned. The remaining four are, it was accepted, all versions of a single complaint, that the verdict of guilty was unreasonable and not open to the jury. That itself can be further refined in that the only issue in the trial, and the only issue on the appeal, was whether the evidence was sufficient to establish to the satisfaction of the jury beyond reasonable doubt that the appellant was aware of the attempt by the alleged co-offenders to import the drugs. The Crown case 9 The Crown case was that the appellant was engaged in the proposed importation, together with a number of other offenders, besides those with whom he stood trial. At least one of the offenders, Alchikh, pleaded guilty to a charge of conspiracy to import the drug. Others were tried in separate proceedings. 10 The plan was to import almost 165,000 ecstasy tablets, amounting to just under 40 kilograms, concealed in a shipment of 54 bar refrigerators. The tablets were secreted in the foam lining of the doors of 6 of the 54 refrigerators. The shipment was consigned to "AlphaStar Australia". It arrived on 3 December 2003 in Melbourne. Australian Federal Police were aware of the shipment and took steps to remove the drug and substitute similar looking harmless packages. 11 On two occasions prior to the arrival of the shipment (20 October and 14 November) two sample refrigerators (unencumbered by drugs) were sent, addressed to the same consignee. This was to establish an import history and to test whether the importation would be likely to be subject to law enforcement attention. Delivery of the first sample was received by Alkarim. The appellant took delivery of the second. 12 The appellant played a significant role in managing the importation. Throughout, with one exception, his dealings with other members of the syndicate were through Alchikh. The exception was one telephone call, of a social nature, with Moafak Salharni, with whom he had previously had legitimate dealings. Nevertheless, his organisational involvement was extensive. 13 He rented space in Dandenong, Victoria, for storage of the refrigerators after Customs clearance. He did this under a false name, Dale Rodriguez, of AlphaStar Australia. When he communicated with the staff of the storage facility, he used another a false name, Steve Miller. He created stationery in the name of AlphaStar Australia and registered the business name to a post office box in a city suburb. The stationery provided a telephone contact number. This was the number of a mobile telephone used by the appellant, the account of which was opened by him in the name of Dale Rodriguez, giving a false address. From 24 November 2003 this telephone was used by the appellant for all communications concerning the refrigerator consignment. 14 The appellant arranged Customs clearance of the shipment with a shipping firm. He did this under the name of Steve Miller from AlphaStar Australia, and used AlphaStar Australia stationery. He rented a warehouse in Botany, a Sydney suburb, using the name Steve Miller. In his dealings with the proprietor of the warehouse he provided a business card in the name of Steve Miller, nominating a post office box which could not be connected with himself, Alchikh, or other individuals in the syndicate. He paid three months rent in cash. 15 Although the appellant could not be connected with the first sample importation, he took delivery of the second, at the Botany warehouse. He did this in the name of Steve Miller. 16 The appellant received correspondence concerning the shipment. He had regular contact, both by telephone and in person, with Alchikh. Meetings in person were arranged, by telephone, with references to the purpose or subject matter of the meeting unspecified. 17 The appellant paid for Customs clearance, using non-traceable money orders that referred to AlphaStar Australia and gave a Lakemba post office box address. After Customs clearance he arranged for removal of the refrigerators to the storage depot, for which he paid, also using non-traceable money orders. He spent considerable time and effort arranging transport of the refrigerators from Melbourne to Sydney. In doing so he used the name Steve Miller. As it happened, the person with whom he ultimately dealt, under the name Andy Platten, was an undercover police officer. 18 He met the shipment on its arrival at the Botany warehouse. He paid "Andy Platten" $2200 – in cash – for the transport. Within minutes of completing the unloading, the appellant telephoned Alchikh and said "it's all done". Shortly after, other participants entered the warehouse and removed the packages from the refrigerators. (The appellant was not present at this event.) 19 There was extensive surveillance of the suspected participants, including the appellant. There was, in evidence, a great deal of telephone intercept and listening device tape recordings of conversations. Two conversations are of special significance in considering the Crown case. 20 On 12 December "Andy Platten" telephoned the appellant (as Steve Miller) concerning the delivery from Melbourne to Sydney. "Andy Platten" said: "All right at this point in time I'm pretty bloody flat out being Christmas … the earliest I could probably get up there would be is Wednesday morning." Ten minutes later, the appellant telephoned Alchikh, saying: "… the earliest our friends can meet us for Christmas is Wednesday morning am early …" 21 There was no dispute about any of the above matters. 22 The Crown contended that the appellant's part of the conversation recorded above was "code". This inference ought to be drawn, the Crown contended, because "Andy Platten" was not a "friend" of either the appellant or Alchikh, there was no arrangement to meet him for Christmas, and, if the transactions had been above board, no reason existed for the appellant not merely to tell Alchikh that the refrigerators would be delivered on Wednesday. 23 On the Crown case, both at trial and on appeal, all of these were significant indicia of the appellant's involvement in the importation, from which an inference could be drawn that he was aware of the presence of the drugs in the refrigerators. 24 The other telephone conversation of present significance took place on the same day, 12 December, between Alchikh and Salharni. Salharni's precise role in the conspiracy is not clear, and need not here be explored. During the course of the conversation Alchikh said: "But I'll tell you something so you know. I've done a few things with him in this matter, but he is just not there, completely unaware of anything. You have to be careful. You understand what I mean? … I mean I talk to him, he talks to me as if he was an employee of that, I mean like Australians, like the … so he is totally unaware of our thing." 25 Alchikh was called in the trial by the Crown, solely for the purpose of making him available for cross-examination on behalf of the appellant. He confirmed that in this conversation he was speaking of the appellant. The Crown did not dispute this. 26 In answer to a specific question, Alchikh said: "I mean that he was not aware about the ecstasy being secreted in the refrigerators and that when I said, like, Australian, I meant, like a Customs agent when you employ somebody to clear something for you, he doesn't know anything." 27 He said that the appellant had no idea about the presence of the drugs and he (Alchikh) had never told him anything about the existence of the drugs. He said what he said to Salharni to ensure that Salharni would not say anything to the appellant about drugs and would not say anything that might make him suspicious. 28 Alchikh also said that he and the appellant had been engaged in a number of legitimate business activities, including the importation of toothpaste, film, pharmaceuticals, and other items. This also was not disputed by the Crown. 29 He said that the appellant had used the false name of Steve Miller at his instigation. This, he said, was because the appellant had on an earlier occasion encountered some problems with Customs officers and they feared that any importation bearing his name would be subject to unwelcome scrutiny and delay. The effect of his evidence was that he had involved the appellant in an administrative capacity in the importation, but had not disclosed to him the true nature of the importation. He said that he told the appellant that the refrigerators had been purchased as "B grade" refrigerators when in fact they were "A grade" and that this would enhance the profit to be made on resale. He said that he told the appellant that he could expect to receive about $5000 for his administrative role. 30 He also confirmed some evidence that was subsequently given by the appellant. In arranging the storage in Melbourne, the appellant had dealt with an employee of the storage company called Sondra Hill. He had become quite friendly with this woman and had decided that he would like to make her a gift of one of the refrigerators. The appellant mentioned this to Alchikh, who refused the suggestion, saying that they needed to sell all of the refrigerators in order to maximise their profit. 31 Alchikh said in evidence that the real reason he resisted the suggestion was that he had no way of knowing whether a refrigerator selected from the 54 would be one of those containing the drugs. (In fact, Alchikh said that he was under the belief that only one of the refrigerators contained drugs, but this is of little moment for the purpose of this aspect of the matter.) 32 The appellant gave evidence. He said that he had met Alchikh in early 2002 and had engaged in a number of business dealings with him. (This was accepted by the Crown as correct.) He explained his use of false names, as did Alchikh, by saying that, in respect of previous dealings, he had been under investigation by Customs authorities and that Alchikh had suggested to him, in order to avoid further unwelcome attention, the use of a false name. 33 The only issue contested at the trial concerned the appellant's state of mind. The Crown contended that it was open to a jury to infer, from the various acts undertaken by the appellant, that he was well aware, or believed, that the others were in the process of importing drugs. The Crown pointed, in particular, to his use of not one but two false names, his creation of stationery, his payments in cash and non-traceable money orders. The appellant pointed to the conversation between Alchikh and Salharni, Alchikh's evidence, and relied heavily upon the evidence that he had sought to make a gift of one of the refrigerators to Ms Hill. This, it was argued, was not indicative of knowledge that one or more of the refrigerators contained illicit substances. That, it was said, was because the refrigerator to be given to Ms Hill was to be selected at random, and to give one away carried the risk that it would be one of those that contained drugs. (The difficulty with this is that it is not clearly supported by the evidence: it is not clear that a refrigerator to be given to Ms Hill would have been selected at random. The boxes containing the refrigerators were individually numbered; it may be assumed that at least one or some of the key participants had information as to which of the refrigerators contained the drugs. It would have been a simple matter to ensure that any refrigerator given to Ms Hill was not one of those.) 34 Given the narrow focus of the issues at the trial, the jury was fully and adequately instructed – there is no complaint concerning the directions given – and had the benefit of comprehensive addresses by counsel. 35 The test to be applied when this Court considers a ground of appeal that a verdict of guilty is unreasonable is well known. It was stated in M v The Queen [1994] HCA 63; 181 CLR 487 and amplified in MFA v The Queen [2002] HCA 53; 213 CLR 606. In the latter case, even greater emphasis was placed upon the respect which must be paid to the jury verdict. 36 In my opinion that is of particular significance in the present case, because the single issue was narrow and was clearly put before the jury. It is true that there were available to the appellant arguments, particularly concerning the evidence of Alchikh, and the conversation between him and Salharni (suggesting that the appellant was ignorant of the true nature of the importation) that warranted careful consideration. But there was also much to be said in respect of the Crown's arguments, particularly in relation to the use of false names, going well beyond what could reasonably have been necessary to achieve the purpose stated by the appellant and Alchikh; and an elaborate pattern of behaviour which might well have been construed as a determination, on the part of the appellant, to distance himself from the various transactions, and cover his tracks; this included concealment of, for example, financial dealings and transactions. 37 There is no reason to suspect that the jury did not give careful consideration to all of the arguments and all of the evidence. In my opinion the verdict of guilty was open to it. The verdict was not unreasonable and there has been no miscarriage of justice. 38 I would reject this ground of appeal. 39 It will therefore be necessary for the matter to be re-listed for the purpose of making formal orders in relation to the proposed amendments. ********** 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.