Reported Decision: 75 NSWLR 150195 A Crim R 406[2010] ALMD 6273[2010] ALMD 6274 New South Wales Court of Criminal Appeal CITATION: DAVIDSON v R [2009] NSWCCA 150 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 7 May 2009 JUDGMENT DATE: 25 May 2009 JUDGMENT OF: Spigelman CJ at 1; James J at 22; Simpson J at 28 DECISION: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted, but the appeal dismissed. CATCHWORDS: CRIMINAL LAW - Particular offences - drug offences - importation of commercial quantity of border controlled drug (GBL) - attempt to import commercial quantity of border controlled drug (GBL) - Appeal against conviction - whether verdict unreasonable - whether verdict supported by evidence - whether necessary to direct jury that crucial or indespensable facts must be established beyond reasonable doubt - whether error by permitting Crown to lead evidence of GBL found in appellant's bedroom - consideration of 'crucial or indispensable intermediate facts' - consideration of R v Merritt [1999] NSWCCA 29 and subsequent authorities - R v Merritt distinguished - s 137 Evidence Act, whether danger of unfair prejudice to appellant outweighed probative value - Appeal against sentence - whether sentence manifestly excessive LEGISLATION CITED: Criminal Code Act 1995 (Cth) Evidence Act 1995 CATEGORY: Principal judgment R v Merritt [1999] NSWCCA 29 R v Merlino [2004] NSWCCA 104 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 Velevski v The Queen [2002] HCA 4; (2004) 76 ALJR 402 CASES CITED : R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 Knight v The Queen (1992) 175 CLR 495 M v The Queen [1994] HCA 63; 181 CLR 487 Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521 Adams v The Queen [2008] HCA 15; 234 CLR 143 R v Califano [2002] SASC 320 R v Corbett [2008] NSWCCA 42 PARTIES: Matthew Leigh DAVIDSON (Appellant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/11832 COUNSEL: P Hamill SC (Appellant) W Abraham QC/L Crowley (Respondent) SOLICITORS: Legal Aid Commission (Appellant) Commonwealth Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0157 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 8 February 2008 IN THE COURT OF CRIMINAL APPEAL 2007/11832 SPIGELMAN CJ JAMES J SIMPSON J Monday 25 May 2009 Matthew Leigh DAVIDSON v REGINA (Cth) Judgment 1 SPIGELMAN CJ: I have read the judgment of Simpson J in draft. I agree with her Honour's reasons and the orders she proposes. 2 I wish to add some observations with respect to the reliance placed by the appellant on the decision of this Court in R v Merritt [1999] NSWCCA 29. That was a circumstantial case with an unusually circumscribed set of circumstances. Indeed there were, relevantly, only two circumstances and each was necessary to be established in order to inculpate the accused. 3 The first piece of circumstantial evidence was a glove which contained the accused's fingerprint and which was found in the carpark near where the armed robbery occurred. The second was the scar on the accused's body, when he was arrested some four months after the robbery, which expert evidence indicated was consistent with being shot. One of the two persons who committed the robbery had probably been shot during the course of the robbery. 4 The joint judgment in Merritt stated that these facts could be considered as "links in a chain" rather than as "strands in a cable" and that each was therefore "indispensable to a conclusion of guilt" (see at [69]). The joint judgment went on to say at [69]: "The importance of the scarring arose because it linked the accused to the robbery. Without it, the Crown may have been unable, in the jury's view, to disprove the hypothesis that a close associate of the accused (for example) may have used the accused's gloves for the purpose of the robbery." 5 Wood CJ at CL, one of the members of the Court in Merritt, subsequently described the case as one "where there was a paucity of evidence". (R v Merlino [2004] NSWCCA 104 at [46].) This was a feature of the case emphasised in Merritt itself: "[71] Having regard to the relatively few incriminating facts in this case, we think that it was both desirable and necessary that his Honour should have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case and, in particular, directed them that if they regarded any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict." 6 Furthermore, as McHugh J said in Shepherd v The Queen (1991) 170 CLR 573 at 593: "In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard." (Emphasis added) 7 The joint judgment in Merritt referred to the well known passage of Dawson J in Shepherd, supra at 579, where his Honour said: " … [I]t may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable, it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore On Evidence, Vol 9 (Chadbourn Rev. 1981), par 2497 pp.412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 8 In a case like Merritt, where there were only two intermediate facts, it was, to use the language of Dawson J, neither "unnecessary" nor "confusing" to give such a direction. In a case such as the present where there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so. The prospect of confusion is a matter which has been emphasised in later cases. (See eg Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394 at [45]; Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [665].) 9 That part of the reasoning in Merritt which states that a direction of a particular kind is "usually" required may need to be reassessed in the light of subsequent authorities. I refer particularly to the passage at [70] where the joint judgment states, when a trial judge is deciding whether to give directions with respect to matters that are or might be intermediate facts: "The trial judge should … ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light. … In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it would usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." 10 There is an element of redundancy in this analysis. If it be the case that a jury believes that particular facts are "indispensable links in their chain of reasoning towards an inference of guilt" then it is unlikely that a jury could come to a conclusion that the offence was established beyond reasonable doubt unless that fact were so established. Indeed, that is so unlikely as to need no specific direction. The very hypothesis, that is, that the jury itself regarded a particular fact as an "indispensable link" would prevent the jury convicting in view of the clear direction always given about the obligation of the Crown to prove guilt beyond reasonable doubt. There may be circumstances in which a jury needs to be informed of a matter that should be obvious, however, in my opinion the proposition in Merritt at [70] that it is "usually essential" to give the direction therein referred to is not consistent with subsequent authority. 11 In Velevski v The Queen [2002] HCA 4; (2004) 76 ALJR 402 the prosecution relied on certain alleged lies which were said to indicate a consciousness of guilt. With respect to this submission Gleeson CJ and Hayne J said: "[43] It was next submitted that, even if it was permissible to leave the alleged lie to the jury in the way it was, it was necessary, in the circumstances, to give the jury a direction that they could rely upon an intermediate fact as a link in a chain of reasoning only if satisfied beyond reasonable doubt of that intermediate fact. Stated in that form the proposition is legally accurate but its recitation to the jury would be of no assistance unless its application to this case were explained. How that could have been done in this case was not made clear. It was submitted that the jury may (but need not) have concluded that the telling of the lie settled any reasonable doubt that consideration of the other evidence tendered at trial allowed. If the jury followed this path, it would, so it was said, make the telling of the lie an indispensable intermediate fact. It was the possibility that the jury might reason in this way that called, so it was submitted, for judicial instruction about how it should be undertaken. [44] The argument should be rejected. It proceeds from a premise about the way in which the jury might approach the task which is wrong. It assumes that the jury will consider the evidence in separate and isolated compartments. That assumption is not made because the evidence relates to different steps in a chain of reasoning, but solely because it suits the appellant's immediate forensic purposes to isolate one of the pieces of evidence as the critical element that will conclude the issue of guilt. Once it is accepted, as it was, that the telling of the lie was not necessarily an intermediate indispensable fact in this case, it becomes apparent that the jury had to consider the evidence as a whole. The lie was not a separate fact which, together with other facts, would form links in a chain of reasoning." (Footnotes omitted) 12 Furthermore, in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Justices Gummow, Hayne and Crennan said, in their joint judgment (Gleeson CJ agreeing): "[46] … It is of critical importance to recognise … that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." (Footnotes omitted) 13 Their Honours went on to reject the suggestion that a circumstantial case can "be considered piecemeal" (at [48]). This was re-emphasised in R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 at [128] per Kiefel J with whom Hayne, Heydon and Crennan JJ agreed. 14 In Keenan supra at [126], Kiefel J referred to a line of authority in the High Court which indicates that a circumstantial evidence direction, namely, that guilty should be the only rational inference that could be drawn from the circumstances, is not always required. The authorities to which her Honour referred indicate that, even in a circumstantial evidence case, such a direction is "customarily given" (Shepherd supra at 578) or is "often called for" (Knight v The Queen (1992) 175 CLR 495 at 502). 15 Furthermore, in Keenan, Kiefel J reinforced the proposition, well established in previous authorities, that such a direction: " … is no more than the amplification of the rule that the prosecution must prove its case beyond reasonable doubt" (at [126], referring to Shepherd supra at 578, Knight supra at 502). 16 The three matters on which the appellant relied in the present case as the "indispensable" intermediate facts were: (i) That it was the appellant who made the telephone calls to the courier company, the Customs Service and the newsagency; (ii) That it was the appellant who opened the postal box at Stanmore; (iii) That is was the appellant who sent the money to China. 17 With respect to each of these matters, as in Velevski, it would be wrong to suggest that "the jury will consider the evidence in separate and isolated compartments" (see [11] above). That is not how the evidence was adduced or how it was relied upon. Nor is it in any way appropriate to regard each of these matters as essential steps which must be separately determined as distinct intermediate facts. They, and the other facts cannot "be considered piecemeal", to use the terminology from Hillier. 18 The statement in Merritt at [71] set out at [5] above, that a direction "would usually be essential" does not accord with the principle affirmed most recently in Keenan set out at [14] above that a direction of this character is "often" required. Nor does it reflect the basic proposition, also most recently affirmed in Keenan, set out at [15] above, that directions of this character do no more than 'amplify' the basic direction of proof beyond reasonable doubt. The circumstances of the case must determine the need for any further amplification, such as additional directions of the kind mentioned in Merritt. 19 For the reasons I have set out at [10], the emphasis always given to the Crown's obligation to prove guilt beyond reasonable doubt will often be adequate, in a particular case, with respect to a matter which the jury may reasonably regard as an indispensable intermediate fact. 20 The way this case was run, and the way it was summed up by his Honour to the jury, was that all of the facts, including aspects of the phone calls and the postal box and the despatch of the money, each of which had elements linking it to the appellant, were separate matters the combined effect of which was such as could satisfy the jury beyond reasonable doubt of the appellant's guilt. This was the approach most recently affirmed in Hillier and Keenan as set out at [12] and [13] above. 21 For these reasons, in addition to those set out by Simpson J, a direction of the character discussed in Merritt was not required in this case. 22 JAMES J: I have had the advantage of reading in draft the judgments of Simpson J and of the Chief Justice. 23 I agree that, for the reasons given by Simpson J, the appeal against conviction should be dismissed and that, although leave to appeal against sentence should be granted, the appeal against sentence should be dismissed. 24 I also agree with the judgment of the Chief Justice in which the Chief Justice gives further reasons for rejecting the second ground of appeal against conviction, including rejecting the attempting reliance by counsel for the appellant on the decision of this Court in R v Merritt [1999] NSWCCA 29. 25 I was a member of the bench of this Court which decided the appeal in Merritt and joined in the judgment of the Court. 26 As is pointed out by the Chief Justice in his judgment, Merritt was an unusual case in that the circumstances from which the Crown contended that an inference of guilt could be drawn were very few in number. In such a case it is more likely that one or more of the limited number of circumstances relied on by the Crown should be identified as an indispensable intermediate circumstance, as discussed by Dawson J in the well known passage in Shepherd v The Queen (1991) 170 CLR 573 at 593. In the present case there were a large number of circumstances from the combination of which the Crown contended that the guilt of the appellant could be inferred and none of the three matters which were identified by counsel for the appellant on the appeal was an indispensable intermediate circumstance. 27 I agree with the Chief Justice that subsequent authorities, to a number of which the Chief Justice refers in his judgment, are not consistent with the passage in the judgment of the Court in Merritt at [70], where it is stated:- "…where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." 28 SIMPSON J: On 21 September 2007, following a jury trial, the appellant was convicted of three counts of importing a commercial quantity of a border controlled drug (Criminal Code Act 1995 (Cth), s 307.1), and one count of attempting to do so (s 307.1 and s 11.1(1)). 29 On 8 February 2008 he was sentenced to imprisonment for 6 years on each count. By reason of partial accumulation of sentences, the total term of imprisonment imposed was 8 years, although this was reduced by 3 months and 15 days to take account of time spent in custody on remand. A single non-parole period of 4 years, 5 months and 15 days was specified. The head sentence will expire on 22 October 2015, the non-parole period on 22 July 2012. 30 The appellant now appeals against the convictions and seeks leave to appeal against the sentences. The Crown case 31 On the Crown case the offences were committed on or about 15 January 2006, 13 February 2006, 2 March 2006 (attempt) and 5 March 2006. The drug involved was gammabutyrolactone, commonly known as GBL, an abbreviation I will adopt. GBL is a drug that can, by the use of a substance such as caustic soda, be converted to another drug, 4 - hydroxybutanoic acid, commonly known as GHB, which abbreviation I will also adopt. A pH testing kit may be used in the conversion process. 32 Put briefly, the Crown alleged that the appellant arranged for the despatch from China to him (under assumed names) of four packages containing the drug in vials. Each of the packages arrived in Australia, on the dates alleged on the indictment, and was intercepted by Australian Customs Services ("Customs") officers. The third package, which arrived on 2 March 2006, was damaged and the vial was empty. (This gave rise to the charge of attempt.) In all, 30.5 kilograms of the drug was contained in the intercepted packages. So much was undisputed. The sole issue at the time was whether the Crown had proved, to the requisite standard, that it was the appellant who was responsible for the importations. 33 The Crown case was circumstantial. 34 The relevant facts and circumstances may be outlined as follows. (For completeness, I include reference to facts and circumstances that did not form part of the Crown case, but were relied upon by the appellant.) (i) In early 2002 the appellant occupied a flat at 9/44 Letitia Street, Oatley. He shared the flat with Mr Stephen Wilson. In June 2002 the two men moved to another unit, at 507E Carillon Avenue, Newton. In his bedroom in this apartment the appellant had a fish tank with fish; (ii) for a time in late 2004 and early 2005, the appellant was in a (homosexual) relationship with a man called Rick Dreske; (iii) Mr Dreske lived with the appellant and Mr Wilson in the Newtown flat, sharing the appellant's bedroom. He departed in late 2005. He retained a key to the unit, and had access to it. After moving out, he did not initially visit, but in early 2006 he began visiting approximately once or twice a fortnight; (iv) Mr Dreske had been a user of GBL. He had a drug conviction in Western Australia in 2000 for possession of amphetamine and supply of the drug known as ecstasy. In respect of these offences he was fined a total of $2,000; (v) on 27 February 2004 a private mailbox in a newsagency in King Street, Newtown was leased. The application for the lease nominated the lessee as Mr Matthew Davidson (the appellant) and gave an address of Level 18, 347 Kent Street, Sydney. This was the address of a finance company by which the appellant was employed between August 2002 and November 2004. By way of identification, driver's licence number 14577887 was given. The appellant held a driver's licence, the number of which was 14577 3 87. Licence number 14577887 belonged to a Mr John Anthony Callanan. Mr Callanan had never lived in Sydney, and did not lease that or any other mailbox; (vi) the application also nominated a mobile telephone number. This was a telephone number that had been used by the appellant between February and November 2002; (vii) in response to the application, post box number 11 was allocated. The mailing address to the box was 11/267 King Street, Newtown; (viii) the evidence showed that the post box was initially leased for a 6 month period, expiring on 27 August 2004. There was no evidence either that the lease was terminated or that it was renewed. So far as there was any evidence, the records of the newsagency showed that a deposit of $15.00 for a key was paid. The ledger sheet that was in evidence does not show that the deposit was refunded (in respect of another leaseholder mentioned in the ledger, a refund is shown); (ix) on 15 January 2006 a package, sent from China and addressed to "Bob Sinclair" at 11/267 King Street, Newtown, arrived at Sydney Airport. The carrier was Express Mail Service. The package contained 5.98 kilograms of GBL, with a purity of 98.5%. This was the subject of the first count on the indictment; (x) on 3 February 2006 an application was made for the lease of a private mailbox in a Stanmore newsagency. (Stanmore is a suburb adjacent to Newtown.) The application named "Andrew Scott" as the applicant, and gave his address as 44 Letitia Street, Oatley (The application form shows that whoever completed the form initially wrote "Leticia", then crossed that out and substituted "Letitia".) It gave a contact number, mobile telephone number 0434 217 859. This was a number that had never been connected. The application also gave a driver's licence number, 73564128. This was a licence which, according to Roads and Traffic Authority records, was held by a Troy B Sutherland of Inverell. Officers of the Australian Federal Police ("AFP") were unable to identify any Troy B Sutherland who had lived at Inverell; (xi) post office box number 32 was allocated. The mailing address was 32/130 Percival Road, Stanmore; (xii) on 4 February 2006 a telephone call was made to the Stanmore newsagency from the telephone landline allocated to the appellant; (xiii) on 13 February 2006 a package sent from China and addressed to "Andrew Scott" at 32/130 Percival Road, Stanmore arrived at Sydney Airport. The carrier was Express Mail Service. The package contained 5.82 kilograms of GBL, with a purity of 96.2%. This was the subject of the second count on the indictment; (xiv) on 28 February 2006 an application for international transfer of money (to an account in China) was made to the Commonwealth Bank, Newtown branch. The application named "Matthew Davidson" (the appellant) as "sender", and gave his address as 507E Carillon Avenue, Newtown, and his mobile telephone number as 0417 249 235. This number was registered to a Mr Anthony Toussaint. Mr Toussaint denied ever having visited the Newtown branch of the Commonwealth Bank, or having transferred money to China; (xv) the application form was shown to have on it fingerprints that could not be identified, but were not those of the appellant; (xvi) an amount of USD800 was duly transferred; (xvii) on 2 March 2006 a package sent from China and addressed to "Andrew Scott" at 32/130 Percival Road, Stanmore arrived at Sydney Airport. The carrier was DHL Worldwide Express ("DHL"). The package contained one broken and empty container. An invoice and a "Material Data Safety Sheet" indicated that the package had contained GBL. This gave rise to the third count on the indictment, of attempting to import the drug; (xviii) on the same day (2 March 2006) three calls were made to DHL from the telephone landline held in the appellant's name. These were at 10.16am, 10.35am and 11.09am; (xix) at 1.51pm a call was made from the appellant's mobile telephone to Mr Wilson. This call lasted three and a half minutes. At 1.54pm a call was made to DHL from the appellant's mobile telephone. Three further calls were made from that telephone to DHL at 2.13pm, 2.19pm and 3.09pm; (xx) two days later, on 4 March 2006 at 3.21pm, a call was made to DHL from the appellant's telephone landline; (xxi) on 5 March 2006, a package sent from China and addressed to "Andrew Scott" at 32/130 Percival Road, Stanmore arrived at Sydney Airport. The carrier was DHL. The package contained 18.7 kilograms of GBL with a purity of 97.2%. This gave rise to count 4 on the indictment; (xxii) at 11.00am on that day a call was made to DHL from the appellant's telephone landline; (xxiii) the following day, 6 March 2006, at 12.05pm, a call was made to DHL from the appellant's telephone landline. Three calls were made to Customs from the same landline, at 12.09pm, 12.17pm and 3.23pm. In the second and third calls the caller identified himself as "Andrew Scott". In the 12.17pm call, the caller said that he was inquiring about a particular consignment, which he identified by consignment number. This was the consignment number of the package that had arrived on 5 March 2006. The caller gave an e-mail address, that included the name "bobsinclair" and an address of 32/130 Percival Road, Stanmore; (xxiv) on 7 March 2006 at 12.05pm, 12.06pm, 12.07pm and 2.50pm respectively, four calls were made to Customs from the appellant's telephone landline. The caller identified himself as "Andrew Scott", referred to the previous call of 6 March 2006, and stated that he was inquiring about a DHL shipment; (xxv) on 8 March 2006 a call was made to DHL from the appellant's telephone landline; (xxvi) on 13 March 2006 officers of the AFP executed a search warrant on the Newtown unit. In a bedside cabinet in the appellant's bedroom was a scrap of paper on which was written the address "32/130 Percival Road, Stanmore". Three fingerprints of the appellant were identified on this scrap of paper. Another fingerprint that could not be identified was also found on it; (xxvii) also located in the appellant's bedroom were four vials, two of which contained GBL, and two of which contained GHB, and a pH testing kit; (xxviii) the appellant was arrested that day. Following his arrest, further inquiries were made by police; (xxix) Ms Rong Fang and Mr Jian Shi were the owners of the Percival Road, Stanmore newsagency where the mailbox was leased in the name of Andrew Scott. Ms Fang had seen the man who arranged the lease and identified himself as Andrew Scott. She was asked to take part in an identification procedure and agreed to do so. Mr Shi had also seen the man and also agreed to take part in such a procedure; (xxx) the appellant was invited, but declined, to participate in a line up procedure. Accordingly, as an alternative, a photoboard procedure was used. This involved the compilation of a board depicting at least twelve individuals. It ordinarily but not necessarily includes a photo of any person suspected. This was the procedure in which Ms Fang and Mr Shi were invited to participate, in order to identify, if they could, the person who leased the mailbox. Ms Fang and Mr Shi were shown different photoboards, each of which included a photograph of the appellant. Both Ms Fang and Mr Shi nominated a photograph as representing the person who had leased the mailbox. In neither case was that the photograph of the appellant. (Although Mr Shi and Ms Fang took part in the procedure separately, as it happened, each nominated the same photograph. It was accepted that they were in error in doing so); (xxxi) at a later stage (January 2007) officers of the AFP made inquiries in order to locate Mr Dreske. Federal Agent Winchester, the officer in charge of the investigation, learned of Mr Dreske's association with the appellant, and with the Newtown unit, from Mr Stephen Wilson. He had a conversation with Mr Dreske on 17 January. Mr Dreske said that he did not wish to make a statement, and did not wish to be involved in the matter. Sometime later unsuccessful attempts were made to serve a subpoena upon him. Further attempts were made to find him, on the eve of the trial, but these also were unsuccessful. On 4 September he was spoken to by police by telephone but declined to give an address and declined to be involved. The defence case 35 The defence case, put initially by way of cross-examination of the prosecution witnesses, was that the appellant was not responsible for the importation. In his opening to the jury, defence counsel made it clear – explicitly – that the appellant's position was that the importer of the drugs was Mr Dreske. The tenor of the cross-examination was to establish that Mr Dreske had the opportunity to do all that was done in relation to the importations, that he had a history of drug use (including GBL) and that the prosecution was not able to exclude him as the importer. 36 The appellant did not give evidence. He called four witnesses. 37 Mr Elki Sanchez was a friend (or acquaintance) of the appellant, and had known and had become a friend of Mr Dreske during the course of his relationship with the appellant. 38 Mr Sanchez recounted an incident that had occurred during a group holiday at Airlie Beach in June 2005. Mr Dreske had consumed a substance that he told Mr Sanchez was a "G" (a short name for GBL), following which his behaviour changed. He became more energetic. (There was other evidence that this was one of the effects of consumption of GBL.) 39 Mr Sanchez said that later that same year he had a conversation with Mr Dreske at the Newtown unit, and that Mr Dreske told him he was using GBL on a daily basis. In response to a question from Mr Sanchez, Mr Dreske said that it was coming from China, that it was a drug that could, for some purposes, be used legally, and that it could be ordered "to a company", in which case "it should be fine". 40 Evidence was also given by the appellant's uncle, Mr Lloyd Parslow, and his mother, Ms Duane Grunzke. Both of these witnesses attested to the appellant's use of a pH testing kit to keep his fish in good condition. 41 Mr Parslow also spoke of the appellant's character (he has no criminal history), and gave evidence that the appellant had a habit of leaving his mobile telephone lying around. 42 While they were waiting to give their evidence, Ms Fang and Mr Shi were (separately) approached by the solicitor acting for the appellant. He showed them photographs of Mr Dreske. Each identified Mr Dreske as "Andrew Scott", the person who had taken the lease of the Stanmore mailbox. Mr Shi said that that photograph was a photograph of the same person as he had identified on the photoboard. (That person was not Mr Dreske. Mr Dreske was not a suspect at the time of the photoboard procedure, and his photograph was not included in either photoboard.) It is plain that in this respect Mr Shi was mistaken. 43 It was accepted by senior counsel for the appellant that the process of identification attempted at court on behalf of the appellant was flawed, and could have little weight in establishing that Mr Dreske was (or might have been) the person who took the lease on the mailbox. 44 It is convenient, in this account of the relevant facts and circumstances, to note some "negative facts". Except for the fourth of these, all were relied on on behalf of the appellant as casting doubt on the inference sought to be drawn by the Crown. 45 Firstly, although two fingerprints were located on the application for international money transfer, they were not those of the appellant, and could not be identified. No fingerprints of the appellant were identified on that document. 46 Secondly, no documents of any kind were found in the search of the Newtown unit to indicate any involvement in the transfer of money, contact with or knowledge of, DHL, or Customs, or anything associated with importation of goods. 47 Thirdly, although the pH testing kit was found, and this is an item sometimes used in association with the conversion of GBL to GHB, a conversion agent, such as caustic soda, is necessary, and no such substance was found. I have already observed that an innocent explanation for the presence of the pH testing kit was advanced. 48 Fourthly, the unidentified fingerprints on the scrap of paper, and on the international money transfer form, were examined on a national database, and yielded no result. This was significant, because Mr Dreske had a conviction in Western Australia and it would be expected that, in the ordinary course, his fingerprints would have been there recorded. It could be reasonably inferred, therefore, that the fingerprints were not his. 49 One further observation may be made. There was virtually no dispute about the facts sought to be proved by the Crown. There was no direct evidence linking the appellant to either of the mailboxes, to the money transfer form, or to the telephone calls. The Crown case depended entirely upon the inferences that could be drawn from largely undisputed facts. 50 In the absence of any denial by the appellant, the defence case depended firstly, on challenging the adequacy of the facts and circumstances to prove beyond reasonable doubt that he was responsible for the importations, and, more particularly, to raise as a reasonable possibility that Mr Dreske was the person responsible – and the only person responsible, or, at least, the person responsible to the exclusion of the appellant. The appeal 51 The appellant has pleaded three grounds of appeal against the convictions. They are: "1. The verdict is unreasonable and cannot be supported having regard to the evidence. 2. The trial judge erred by failing to direct the jury that crucial or indispensable intermediate facts had to be established beyond reasonable doubt. 3. The trial judge erred in permitting the Crown to lead evidence of traces of GBL drugs found in the appellant's bedroom." 52 In respect of sentence, he pleads that the sentence (in total) is manifestly excessive and a different, less severe, sentence is warranted and ought to have been imposed. Ground 1: Unreasonable verdict? 53 In essence, the argument put on behalf of the appellant was that the Crown had not excluded the possibility that Mr Dreske was the person who had imported the drug. 54 The test in determining this ground of appeal is not in doubt: see M v The Queen [1994] HCA 63; 181 CLR 487. It is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. In answering that question the court must give appropriate weight to the advantage the jury has had in seeing and hearing the witnesses. (In a case such as this where there is little disputed evidence, the significance of that circumstance is limited.) The court must make its own assessment of the evidence; if it concludes that there is a significant possibility that an innocent person has been convicted, it is bound to act to set aside the guilty verdict. In my opinion, where a conviction depends upon inferences drawn from undisputed facts, the role of the appellate court in making its own assessment of the facts becomes considerably more significant. The perceived advantage of the jury in seeing and hearing the witnesses recedes somewhat. 55 The question is whether a reasonable jury, on the facts outlined, could have returned a verdict of guilty; or, more specifically, in this case, whether a reasonable jury could have been satisfied beyond reasonable doubt that the only reasonable inference was that the appellant (and not Mr Dreske, or some other person) was responsible for the importation: see Knight v The Queen [1992] HCA 56; 175 CLR 495. In this case, application of the M test requires the subsidiary question whether the jury could reasonably have rejected as a rational inference the possibility that Mr Dreske was the importer. If there remained open that reasonable possibility, then it was not open to the jury to convict the appellant. 56 On behalf of the appellant it was argued that: Mr Dreske had (apparently unfettered) access to the Newtown unit, to the appellant's landline and mobile telephones, and to his bedroom. This could explain the telephone calls, the presence of GBL and GHB in the bedroom, and the scrap of paper bearing the mailbox address and the appellant's fingerprints; Mr Dreske had a history of use of GBL; Mr Dreske had disclosed (to Mr Sanchez) an awareness of a means of importing GBL from China; the evidence linking the appellant to the Stanmore mailbox was "tenuous", particularly in light of the mistaken identification evidence by Mr Shi and Ms Fang; the spelling error in "Letitia" as originally written on the application form for the Stanmore mailbox suggested that the application form was completed by a person unfamiliar with the spelling of the name of that street; the appellant, having lived there, had the appropriate familiarity and was unlikely to have made such a mistake; little weight could be attributed to the appellant's fingerprints on the piece of paper bearing the address of the Stanmore mailbox. The evidence did not establish when the fingerprints were placed there, and they may have been there before the address was written on it; the pH testing kit was explained by the fact that the appellant kept fish in an aquarium in his bedroom. There was no caustic soda or other agent that would facilitate the conversion; Mr Dreske had access to information about the appellant and his affairs that would have enabled him to have leased the Stanmore mailbox and transferred the money to China; there was no evidence of the source of the USD800 transferred to China, in particular, none showing that it had come from any account operated by the appellant. 57 On behalf of the Crown, however, a number of competing submissions were made. It was, for example, pointed out that Mr Sanchez's evidence was that, from 2006, Mr Dreske visited the Newtown unit, but only once or twice a fortnight. There was no evidence to suggest more regular visits, and none to suggest that he had entered the unit when the appellant was not present. 58 The most damning point made by the Crown, in my opinion, concerned the evidence of the multitude of telephone calls, each made from the appellant's landline or mobile telephone, and each to an organisation (either DHL or Customs) which could have had information about the consignment of the packages. 59 Most damning of all is the evidence of the telephone calls of 2 March, made from the appellant's mobile telephone. At 1.51pm there was a call to Mr Wilson. Mr Wilson's evidence was that he thought he had never spoken to Mr Dreske by telephone. This telephone call lasted 3 minutes and 30 seconds. Thirty seconds later there was a telephone call to DHL. It is, as the Crown submits, inherently incredible that the appellant used the telephone for the 1.51pm call to Mr Wilson, and another person, unbeknownst to him, made the 1.54pm call. 60 To these may be added the following:- the use (on the application for the lease, of the Newtown mailbox) of the appellant's name; the use (on the same application) of an address that was then the appellant's workplace; the use (on the same application) of a telephone number that had previously been used by the appellant; the use (on the same application) of a driver's licence number that varied from that held by the appellant by only one digit; the use (on the application for the lease of the Stanmore mailbox) of an address (Letitia Street, Oatley) at which the appellant had previously lived; the use (on the application for money transfer) of the appellant's name; the presence in the appellant's bedroom of a piece of paper bearing both the address of the Stanmore mailbox, and the appellant's fingerprints; the presence, in the appellant's bedroom, of vials containing GBL and GHB. 61 Of course, some of these items of evidence may take on a different, and innocent, colour in the light of other evidence. The presence of the pH kit is a good example. But the task of the jury in a circumstantial case (and the task of this Court) is not to deconstruct each item of evidence and take it in isolation; it is to examine the whole of the evidence (including evidence elicited in cross-examination, and evidence adduced in the defence case) and to determine whether it proves the guilt of the accused person. Individual items of evidence, on their own inadequate to found a conviction, may take strength from other items. 62 The facts and circumstances I have set out above present, in my opinion, an overwhelming case that the appellant was the person who made the arrangements for the importations. It is true, as was suggested on behalf of the appellant, that, taken in isolation, various of those facts and circumstances could lack persuasiveness; for example, the fingerprints on the piece of paper, alone, would be insufficient to establish a connection between the appellant and the importations. And the application for transfer of money internationally, although, on its face, linked to the appellant (because of the use of his name), might lose strength in the light of Mr Dreske's presumed knowledge of the appellant's affairs. 63 However, when dealing with a circumstantial case, it is inappropriate to take each of the facts and circumstances in isolation. All of these facts and circumstances point inexorably to the appellant's guilt. 64 I am satisfied that it was open to the jury to find that the Crown had proved, beyond reasonable doubt, that the appellant was guilty of the offences. Making my own assessment of the evidence, and the inferences that ought to be drawn therefrom, I am satisfied that there is no likelihood (or possibility) that an innocent person has been convicted. I would reject ground 1 of the appeal against conviction. Ground 2: Directions 65 At the conclusion of the evidence and immediately before counsel's addresses, senior counsel for the appellant sought a direction that, in order to convict, the jury had to be satisfied beyond reasonable doubt that certain "crucial or indispensable intermediate facts" had been proved. 66 This was drawn from the decision of the High Court in Shepherd v The Queen [1990] HCA 56; 170 CLR 573. There, correcting a misapprehension about the proper interpretation of Chamberlain v The Queen [No. 2] [1984] HCA 7; 153 CLR 521, Dawson J with whom Mason CJ and Toohey and Gaudron JJ agreed, said: " … it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that the fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where … the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. … Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful." 67 Senior counsel identified as "indispensable facts" of the character referred to by Dawson J, and calling for such a direction, as: "(i) That it was the appellant who made the telephone calls to the courier company, the customs service and the news agency; (ii) That it was the appellant who opened the postal box at Stanmore; (iii) That it was the appellant who sent the money to China." 68 The oral submission made by senior counsel at the trial sought "a Chamberlain Direction". He provided a draft direction of the kind proposed that was marked for identification number 10. Under the heading "Chamberlain" senior counsel proposed a direction as follows: "Crown must exclude every reasonable rational hypothesis/ inference/ conclusion consistent with innocence." Under the heading "Intermediate facts", senior counsel, cited Shepherd and R v Merrit [1999] NSWCCA 29. Inter alia, he proposed that the jury be directed: " … some facts may be essential to a process of reasoning towards being satisfied beyond a reasonable doubt of the accused (sic) guilt. Such a fact is sometimes known as an intermediate fact … if there is an intermediate fact that is essential to a conclusion of guilt beyond a reasonable doubt, that fact must be established beyond a reasonable doubt." … [The Crown] seeks to establish three circumstances from which it asks you to conclude that the accused (Mr Davidson) is the importer …" The document then identified the facts I have set out above. 69 After hearing argument the judge declined to give a direction in the terms sought. 70 On the appeal senior counsel took a slightly different direction. He invoked the decision of this Court in Merritt, a joint judgment of Wood CJ at CL, James and Adams JJ. There the Court said: "Ultimately, of course, it is for the trial judge to determine whether to give directions that relate the standard of proof to what are, or might be intermediate facts 'which constitute indispensable links in a chain of reasoning towards an inference of guilty' … it is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light … in our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." " … we think that it was both desirable and necessary that his Honour should have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case and, in particular, directed them that if they regarded any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict." (italics in original; bold added) 71 It will be observed that the judgment in Shepherd proceeds on the basis that it is the judge who decides whether an "intermediate fact" is of an "indispensable character" such as to warrant or require a direction of the kind sought. In Merritt it is proposed that the decision of what fact or facts are "indispensable" can be left to the jury (although the judgment also recognises that a judge might in appropriate circumstances, identify these facts). 72 In my opinion, this was not a case in which the jury ought to have been left to determine for itself which fact or facts was or were indispensable to their reasoning. To the extent that the ground of appeal raises Merritt (which it does only obliquely) I would reject it. 73 The ground of appeal, as framed, is focused upon a direction in accordance with Shepherd, and the facts said to be "indispensable" are clearly identified. 74 Whether a fact on which the Crown relies as part of a circumstantial case is or is not "indispensable" may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not "indispensable". Where the answer is in the negative, the fact is "indispensable" and the jury should be directed accordingly. 75 I do not accept that any of the proposed facts was "indispensable" within the reasoning of Shepherd. Certainly, the telephone call evidence was very powerful, especially that of 2 March to which I have referred to above. But that does not make it "indispensable" and, even without that evidence, there was still a case that incriminated the appellant. 76 Nor do I accept that the fact that it was the appellant who leased the postal box at Stanmore was an "indispensable" fact; conceivably, the postal box may have been leased by Mr Dreske, or some other person, and used by the appellant. But if the jury was satisfied that it was the appellant who leased the postal box (even if not satisfied beyond reasonable doubt) then that fact was capable of going into the mix and supporting the other evidence in the Crown case. 77 Similarly, I do not accept that the fact that it was the appellant who sent the money to China was "indispensable" in the sense I have outlined. 78 I would reject this ground of appeal. Ground 3: Evidence of GBL and GHB 79 Finally, it was asserted that the judge erred in permitting the Crown to lead the evidence of traces of GBL and GHB drugs found in the appellant's bedroom. 80 Initially, it was submitted that this evidence was tendered as tendency or coincidence evidence within the meaning of ss 97 and 98 of the Evidence Act 1995, and that the judge failed, before admitting it, to apply the appropriate tests. 81 However, during the course of argument senior counsel abandoned that submission and relied instead upon s 137 of the Evidence Act, which obliges a court in a criminal proceeding to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 82 In my opinion the presence of GBL and GHB in the appellant's bedroom was an important circumstance relevant to the Crown case. True it is that, since none of the drugs the subject of the charges had found their way to the appellant, that evidence was capable of establishing and did establish criminality on another occasion. It did not prove the appellant's importation of the suspect drugs. However, it also was capable of establishing that the appellant had an interest in having the drug and a willingness to have it in his possession. These were relevant circumstances. In my opinion the probative value was high and was not outweighed by any unfair prejudice. 83 I would reject this ground of appeal. 84 I would, accordingly, dismiss the appeal against conviction. Ground 4: Sentence 85 On sentence, Mr Parslow and Ms Grunzke again gave evidence, as did Mr Clinton Davidson, the appellant's brother, and a friend, Richard Scenna. Also in evidence were a Pre-Sentence Report, and an expert report prepared by Professor Louisa Degenhardt, a Professor of epidemiology at the National Drug and Alcohol Research Centre, University of NSW, who has expertise in the use of, and harms related to, illicit drugs in Australia. From all of this material the following concerning the appellant's personal circumstances emerge. 86 The appellant was born in September 1982. He was twenty-four years of age at the time of the offences. As was mentioned in the trial, he had no prior criminal history. He is the third of three brothers, considerably younger (by 13 years) than his next brother. The family was close, united, stable and supportive. His parents were committed Christians. He grew up in a small rural community in Queensland. 87 When he was 13, his parents separated and the appellant opted to live with his father, with whom he had a close relationship, in Brisbane. He was able to maintain a close connection with his mother and brothers. 88 At an early age, the appellant exhibited considerable talent as a tennis player, and attended a school that encouraged him to develop this skill. By about the age of 17 he represented Queensland in national championships, and shortly after was awarded a tennis scholarship to attend a State University in Mississippi, USA. There he remained for about eighteen months. He returned to Australia and abandoned competitive tennis. 89 In notes prepared for the sentencing hearing, and that became part of the evidence, Ms Grunzke told of the appellant's work with disadvantaged children, foster children from drug related homes. 90 On his return to Australia the appellant gained employment in the finance industry. Clinton Davidson, his brother, operates his own mortgage broking business, and, with his help, the appellant set up a similar enterprise of his own. 91 At about the age of 23, the appellant began his relationship with Mr Dreske. This was of concern to his mother, because she was aware that Mr Dreske used drugs. 92 The report of Professor Degenhardt went to different issues and canvassed matters concerning the drug GBL, which was described (accurately, so far as I am aware) by senior counsel for the appellant as "a relative newcomer on the Australian scene". Perhaps the most important part of the report, at the time of the sentence proceedings, was Professor Degenhardt's assessment of the harmfulness of GBL relative to other, more familiar, drugs. Although Professor Degenhardt was cautious in her assessment, the report might be taken as suggesting that GBL is less harmful than, for example, heroin. 93 However, this evidence was adduced before the decision of the High Court in Adams v The Queen [2008] HCA 15; 234 CLR 143, and it was conceded on behalf of the appellant that the weight that can be given to that report is significantly reduced. 94 In his Remarks on Sentence Nield DCJ made the necessary findings of fact, based upon the evidence in the trial. No challenge was made to any of those findings. His Honour also recounted the relevant personal circumstances, and, again, no challenge is made to his approach in this respect. 95 The sole ground of the application for leave to appeal against sentence is that, in total, the sentences are manifestly excessive. 96 It was pointed out that, while the importation of GBL was plainly an offence against Commonwealth law, at the time of these offences, GBL was not a drug recognised in or proscribed by NSW drug law; and that, in some comparable jurisdictions (eg Canada) it is not prohibited. It has legal uses even in Australia. 97 It is true that GBL is not a drug with which the courts of NSW have acquired great familiarity. Two precedents only were provided to this Court. One was R v Califano [2002] SASC 320. 98 That case involved a Crown appeal against the asserted inadequacy of a sentence. The respondent had been released on a conditional discharge under s 19B of the Crimes Act 1914 (Cth), with a 1 year bond, and no conviction recorded. 99 The respondent pleaded guilty to the offence. The court accepted that he had imported it for his own use in "body building", had done so openly and unaware of the illegality of importing the drug into Australia. He had received the drug from Canada. The report does not disclose the quantity there imported, but he did purchase it for the sum of $300. 100 Like the appellant, Califano had no prior convictions, and was a relatively young man. 101 In those circumstances the Court refused to grant leave to the prosecution to appeal. 102 Notwithstanding that, the Court described the sentence as one which "may seem surprisingly light" and "very moderate". Ultimately, Doyle CJ, with whose reasons Wicks and Besanka JJ agreed, held that the sentence was lower than it ought to have been, but not in such a way as to justify a grant of leave to the Crown to appeal. 103 In R v Corbett [2008] NSWCCA 42 this Court dismissed a Crown appeal against the imposition of a community service order for two offences of importing a total of about 4 kilograms of GBL. 104 The court held that the sentence imposed was (manifestly) inadequate, but declined, in the exercise of discretion, to intervene. 105 What the appellant has to confront, and this Court has to deal with, is: (i) the appellant committed these offences on four separate occasions, although relatively close in time; and (ii) the quantity of the drug imported was more than 30 kilograms, with an attempt to import another 19 kilograms. A commercial quantity of GBL is 1.00 kilogram. 106 These circumstances take his offences into a category far removed from those that appear from the reports of Califano or Corbett. 107 No specific error was sought to be attributed to the approach taken by the sentencing judge. I can detect none. I would grant leave to appeal but dismiss the appeal against sentence. 108 The orders I propose are: (i) appeal against conviction dismissed; (ii) leave to appeal against sentence granted, but the appeal dismissed. ********** 09/06/2009 - Typographical error. - Paragraph(s) [1] 19/03/2010 - re-format paragraph numbering - Paragraph(s) [35] 10/02/2014 - typographical error - Paragraph(s) 29 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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