Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cuzman v R; Bucataru v R [2014] NSWCCA 222 Hearing dates: 20 February 2014 Decision date: 17 October 2014 Before: Hoeben CJ at CL at [1] Garling J at [108] RS Hulme AJ at [109] Decision: Christian Cuzman The application for leave to appeal against conviction in respect of Count 1 on the indictment is allowed and the verdict of guilty in respect of that offence entered 23 October 2012 is set aside. In lieu thereof Christian Cuzman is convicted of the offence in Count 2 on the indictment. The conviction of the offence in Count 4 on the indictment is confirmed. The sentence imposed by Judge Norrish QC on 29 November 2012 is quashed. The proceedings are remitted to the District Court so that Christian Cuzman can be re-sentenced for the offences in Counts 2 and 4. Georghe Bucataru The application for leave to appeal against conviction in respect of Count 1 on the indictment is allowed and the verdict of guilty in respect of that offence entered 23 October 2012 is set aside. In lieu thereof Georghe Bucataru is convicted of the offence in Count 2 on the indictment. The conviction of the offence in Count 4 on the indictment is confirmed. The sentence imposed by Judge Norrish QC on 29 November 2012 is quashed. The proceedings are remitted to the District Court so that Georghe Bucataru can be re-sentenced for the offences in Counts 2 and 4. Catchwords: CRIMINAL LAW - conviction appeal - knowingly take part in the supply of a prohibited drug being an amount not less than a commercial quantity - participate in a criminal group - unreasonable verdict - evidence insufficient to establish that the amount of drug not less than a commercial quantity - evidence sufficient to establish alternative offence of supply prohibited drug - need to re-sentence - matter remitted to District Court. Cases Cited: Cusack v Regina [2009] NSWCCA 155 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 M v The Queen [1994] HCA 63 MFA v The Queen [2002] HCA 53; 213 CLR 606 SKA v The Queen [2011] HCA 13; 243 CLR 400 Spies v R [2000] HCA 43; 201 CLR 603 Tonari v R [2013] NSWCCA 232 Category: Principal judgment Parties: Christian Eugene Cuzman - Appellant Georghe Bucaturu - Appellant Regina - Respondent Crown Representation: Counsel: Ms B Rigg - Appellant Cuzman Mr M Coroneos - Appellant Bucataru Ms V Lydiard - Respondent Crown Solicitors: Hanby & Associates, Lawyers - Appellant Cuzman Hanby & Associates, Lawyers - Appellant Bucataru S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/147461; 2010/147463 Decision under appeal Date of Decision: 2012-10-23 00:00:00 Before: Norrish QC DCJ File Number(s): 2010/147461; 2010/147463 Judgment 1HOEBEN CJ at CL: The applicants, Christian Cuzman and Georghe Bucataru, appeared for trial before Norrish DCJ and a jury of twelve on 27 September 2012 in relation to four counts. They were named jointly in the indictment as having committed the following offences: (i) Knowingly take part in the supply of a commercial quantity of heroin between 3 March and 22 March 2010 at Sydney and elsewhere in and outside New South Wales. (ii) In the alternative to (i), knowingly take part in the supply of a prohibited drug between 3 March and 22 March 2010 at Sydney and elsewhere in and outside New South Wales. (iii) Knowingly take part in the supply of a large commercial quantity of heroin between 1 May and 1 June 2010 at Sydney and elsewhere in and outside New South Wales; and (iv) Knowingly participating in a criminal group between 1 March and 1 June 2010 and Sydney and elsewhere in and outside New South Wales. 2On 23 October 2012 they were each convicted of counts (i) and (iv). No verdict was taken on Count 2 and they were acquitted of Count 3. Both applicants were on bail until convicted. 3On 29 November 2012 his Honour sentenced Christian Cuzman in relation to the offence in Count 1: - Imprisonment with a non-parole period of 5 years commencing 12 August 2012 and expiring 11 August 2017 with a balance of term of 3 ½ years expiring 11 February 2021. In relation to Count 4, his Honour imposed a sentence of imprisonment for 3 years commencing 12 August 2012 which was fully concurrent with the sentence in respect of Count 1. 4On 29 November 2012 his Honour sentenced Georghe Bucataru in respect of Count 1: - Imprisonment with a non-parole period of 5 years and 3 months commencing 12 August 2012 and expiring 11 November 2017 with a balance of term of 3 years and 3 months expiring 11 February 2021. In relation to Count 4 his Honour imposed a sentence of imprisonment for 3 years commencing 12 August 2012 which was fully concurrent with the sentence in respect of Count 1. 5Both applicants seek leave to appeal against their convictions on Count 1 on the sole ground that the verdicts were unreasonable and unable to be supported having regard to the evidence. The applicants submit that the conviction in respect of Count 4 depended on guilt of either Count 1 or its alternative (Count 2) or Count 3, as well as potentially additional elements of the offence. To the extent that the conviction for Count 4 included the prerequisite guilt in respect of Count 1, the applicants challenge this conviction as a necessary consequence if they are successful in overturning the conviction in respect of Count 1. There is, however, no individual challenge to the conviction for Count 4. The applicants have not sought leave to appeal against sentence. The Crown case and evidence at trial 6The Crown case in relation to Count 1 was dependent on the evidence of Gabriella Suto, who was criminally concerned in the events giving rise to the proceedings. She had pleaded guilty to a charge which related to it and received a discount on sentence. The Crown case was otherwise based on intercepted telephone calls and messages (exhibit E), evidence regarding Ms Suto's location over relevant days and expert evidence concerning the value of heroin in 2010. 7The Crown also relied on general evidence relevant to all counts about a person named Csaba Magyari. On the Crown case he was based in Sydney and was the person who provided heroin for Ms Suto to transport to Adelaide in her own white Ford Fairmont sedan. The Crown case was that she did this for the purpose of delivering drugs to the two applicants who were involved in a joint criminal enterprise to receive the drugs for the purposes of supply. The applicants were residents of Adelaide, living in separate premises with their respective families in suburbs close to one another. 8The evidence regarding Mr Magyari demonstrated that he was a large scale drug dealer. In its opening, the Crown said "He supplied drugs like heroin, cocaine and methylamphetamine". Mr Magyari had died by the time the trial commenced. 9The Crown case was that he lived in Cary Street, Drummoyne but rented anther property in North Bexley. The North Bexley property was referred to by the Crown as a "safe house" at which he stored and processed drugs. The Crown adduced evidence that he was responsible for the supply and sale of prohibited drugs, not only in Sydney but in Melbourne, Perth, the Gold Coast, Brisbane and Adelaide. 10It should be noted that much of the evidence adduced in the trial was relevant only to Count 3 and has no bearing on the applicants' ground of appeal. The evidence requiring independent assessment for evaluating the reliability of the conviction is almost entirely that of Ms Suto and the relevant intercepted communications. 11Ms Suto was a Hungarian woman who came to Australia in 2008 on a student visa. She had learned English as a child and at trial gave evidence without the assistance of an interpreter. She worked as a personal trainer at Fitness First during the period covered by the events with which the trial was concerned. She met Mr Magyari through her friend, Lilla Toemoeskoezy, with whom he was at one stage in a de facto relationship. Lilla Toemoeskoezy and Mr Magyari were of Hungarian origin. 12Ms Suto was married in Australia to a fellow personal trainer but the relationship disintegrated and police commenced proceedings against her for an apprehended violence order (AVO) for the protection of her husband. For something like a year thereafter, Ms Suto lived with Lilla Toemoeskoezy in Barnstable Road, Russell Lea, having been required to leave the premises she had shared with her husband. During that time, she came to know Mr Magyari who assisted her in getting to know Sydney, paying bills, getting to places, finding places and "helping me out with lots of things". 13In connection with the proceedings for an AVO, Mr Magyari arranged for a solicitor to assist Ms Suto. A fee of $3000 came to be owed as an advance payment for a hearing on 17 March 2010. A telephone intercept of 15 March (exhibit E2) suggested that Ms Suto had seen the solicitor that day but not paid him and that the solicitor required payment before the hearing. Mr Magyari said that he would pay the solicitor the next day. Ms Suto responded "Good, okay". Her evidence during cross-examination suggested that there was in fact more than $3000 owed to the solicitor, being additional sums set out in correspondence sent to her for initial paperwork. 14Ms Suto's account was that she agreed to a driving job on 20 March to clear this debt. Her evidence was that in order to pay it back "I have to make him some favours". These favours were "At about three times he asked me to put money into my account what he gave me and I had to go with him for driving. And pretty much driving yeah." 15When asked about the driving she had done for him, she said that the first trip was to Melbourne together with Mr Magyari where the driving was shared. This was perhaps in July 2009. The next trip was to Adelaide where the driving was again shared. On that trip, she met two people. The Crown case was that these were the two applicants. They met in a motel car park and went to a restaurant for dinner. She was with them for a couple of hours. She said that she was not introduced to the men. She said that when Mr Magyari spoke to her about the men he called them the "fat gypsy" (Christian Cuzman) and the "thin gypsy" (Georghe Bucataru). There was no suggestion of criminal conduct at this meeting. 16Ms Suto went on a later driving trip by herself to Adelaide at Mr Magyari's request. She met "the thin one" in a shopping centre car park. Bank details suggest that one of the Adelaide trips was about 5-7 September 2009. They met outside the car and she said that he asked for her car keys and parked her car nearby. He was only in the car for a couple of minutes. When he got back into his own car, she got back into her car and drove back to Sydney. The thin gypsy had left a bag in her car. 17When Ms Suto was cross-examined by reference to the details contained in the statement of agreed facts tendered in her own sentence proceedings, she agreed that the first trip to Adelaide with Mr Magyari was 25-27 August 2009 and the second trip was 5-7 September. Later cross-examination revealed that the Gold Coast trip was 7-8 March 2010 and that there was a trip from Sydney to Coffs Harbour and back on 31 May - 1 June just prior to her arrest on 2 June. 18Ms Suto said in cross-examination that usually what she did was to go empty handed but to bring something back which she thought to be money. 19By reference to the communication captured on exhibit E4, Ms Suto said she in fact attended Mr Magyari's premises at Drummoyne. She told him she could not give him the money now. He said "That I have to do him a favour". The favour was "He said that I have to go to Adelaide, meet one of his friends and because he has to go somewhere and so I think he was to Perth and he couldn't make it". She said that when she expressed reluctance because she would not be able to have so much time off work, he made her do it. 20Ms Suto said that she went to his apartment in Drummoyne on the afternoon of 20 March 2010. He told her that he was going to prepare a birthday present for his friend and that she would have to take it to Adelaide. He said "Just wait in the kitchen and I'll prepare it in a sec". Shortly after this, he gave her a very simply wrapped package, wrapped up like a present with faint green paper. It was about 20 cms long and 10 cms high, in a sort of brick shape, but not weighing as much as a brick. It was then placed in a bag. 21She said that before this day, Mr Magyari had given her a GPS device for her vehicle. On this occasion, he entered an address into it. She set off for Adelaide not long after arriving at Mr Magyari's unit. The drive took her about 15 hours. She was in a hurry. The bag was placed on the front passenger seat. E-tag records showed that her car proceeded in a westerly direction through Moorebank and the M5 toll gates at 5.14pm. She said that she drove through the night only stopping for the toilet or drinks. She just left the package on the seat when she did so. She arrived at about 9 or 10 in the morning. 22While the GPS entry nominated a particular street and house number, she said that she stopped at a carwash/petrol station nearby "just to revive" and made a call to Mr Magyari. She said that this was because she was not sure where she was going and that she was no longer following the GPS - she did not have any more information. At another time she indicated she had driven down the street nominated by the GPS but did not see anyone. There was CCTV footage of Ms Suto's attendance at the "On The Run" carwash recorded between 10.17 and 10.21 (Adelaide time) on 21 March. She was shown to be on the telephone during this time, which would fit with the call from Mr Magyari tendered as exhibit E9 (commencing 10.13 Adelaide time indicated as 10.43 on the transcript). 23A tracking device had been installed in the car by Mr Magyari. It is not clear whether Ms Suto was aware of this. SMS messages back to Mr Magyari's telephone (which were captured by the intercept) specified her location from time to time - seemingly when he decided to check her whereabouts. Intercepted calls and text messages in the Crown case used NSW time. As a result, the time in Adelaide was half an hour earlier than that noted on the telephone transcripts. Ms Suto and Mr Magyari communicated with one another in Hungarian. 24At this time the applicant Mr Bucataru (the "thin gyspy") lived with his family in MacIntyre Street, Salisbury Downs. The carwash was a couple of minutes from his residence. From the carwash Ms Suto sent a number of SMS communications to Mr Magyari between 10.28-10.30. He indicated at 10.31 that he would call the man but had to find a phone booth. 25At 10.57am Mr Bucataru telephoned Mr Magyari and said "It's not in my street". He was told to wait and Ms Suto was called by Mr Magyari and apparently chastised when she advised that she was not "there" but at the carwash. At about 11.02am she advised "Now I am exactly there" and Mr Magyari told her that he would call the man. He called Mr Bucataru at 11.04 and said "Check it out now". At 11.05 Mr Bucataru called Mr Magyari asking whether the car was a Ford and was told that it was a white Ford. Immediately after this, Ms Suto said that she saw the "thin gypsy" come to her car. 26One of the things which Mr Magyari said during the 10.43am conversation with Ms Suto while she was at the carwash (E9) was "Well just that I forgot to tell you how much the stuff. The (gaming) chips. Wait I'll just reckon I forgot. I think it was 206 or something like it". She said "Okay" and he continued "Okay? I'll just calculate it, I'll tell you that's what you tell him Okay?" The Crown case was that this demonstrated that the price of what was being delivered was $206,000. In a later call at 11.22am (E16) Mr Magyari said "I looked at the pad, that birthday present I picked up yesterday was $206 ... That was it, the whole caboodle". He told her "Discuss it with him all right?" She said that she understood this to refer to what she had to tell the man whom she met about the present, the "thin gypsy" who let her into the house. 27Ms Suto was walked inside the house by the "thin gypsy". She had her clothing and other such items and was carrying the birthday present. They discussed her trip. She was tired and was led to a bedroom. She dropped her bag and went for a shower. She said the 11.22 call must have been before her shower. She had taken the bag with the package into the room as well. She handed the package to the "thin gypsy" before she showered. This was different to her statement to the police of 10/11 November 2011. In the statement she said that the "thin gypsy" took the bag from her at her car and that she simply carried her personal possessions into the house. 28In cross-examination Ms Suto agreed that when Mr Magyari said in the 11.22 phone call "Tell them you go to sleep and when you wake up you meet", she understood him to be saying to have a sleep and then she would afterwards meet with the appropriate people. She agreed she was probably in the next part of the conversation asking Mr Magyari whether she should have this meeting at the place where she was or somewhere else. Mr Magyari said "Just don't take the stuff there". When she was asked whether this indicated to her that he did not want her to take the item to that particular house, she said she did not know what he meant. The Crown Prosecutor addressed the jury to the effect that perhaps these instructions meant Mr Magyari was worried that the money was not going to be handed over, that there could be a "rip-off". 29After she showered, Ms Suto went into the kitchen and was given some food by a woman. A bit later the "fat gypsy" (Cuzman) came in. She gave evidence that "I said what Csaba told me to say, the present was $206". When asked what he said her evidence was "He said that he wasn't expecting me and he's not happy. He needed to talk to Csaba next time he wants to see him". She said "All right" but was a bit scared because he seemed annoyed. He said she had to wait, that he was coming back soon. He left and the next thing that happened was that the "thin gypsy" gave her a bag. It was the Crown case that the inference should be drawn that this bag contained $206,000. Ms Suto described it as containing something like a shoe box, it was heavier than a box of chocolates but not as heavy as a brick. She took it back to Sydney leaving it on the front passenger seat as she had with the package. 30Ms Suto was cross-examined to the effect that in her statement to police, she said that the conversation with someone in the kitchen was before she had a sleep for a few hours, whereas earlier in the cross-examination she went into the kitchen after she slept for a few hours. In later cross-examination she agreed with a sequence of events by reference to her statement of being fed in the kitchen by the woman, spoken to by the "fat gypsy" and asked to wait a few hours, then sleeping for a few hours. She had initially said that she slept before this conversation with the "fat gypsy". 31The Crown tendered an unrelated call between Mr Magyari and a Tibor Kovats at 11.07am (E15) in which Mr Magyari indicated that he was "on four phones and I'm arranging now something fucking important and I am very nervous because everything happened at the same time". 32By 4.43pm on 21 March Ms Suto had commenced the return journey to Sydney. At 2.03pm on 22 March her vehicle was in the Ashfield/Croydon Park area of Sydney. The evidence demonstrated that the trips down to Adelaide and back took at least a few hours more than the 15 hours estimated by Ms Suto. 33Ms Suto was living in Potts Point at that time but still had a key to Lilla's premises in Barnstable Road, Russell Lea. In that house Mr Magyari had what was said to be an office and she put the shoebox there. She said that she had stopped only for food and the toilet on her return journey. During a phone call with Mr Magyari at 2.20pm on 22 March (E18), Ms Suto was inside those premises and discussing with him taking money from the table. She said she saw the money left on the table and asked how much of it she could take. He said "Ah, you owed me 3, then take 2". She said "Okay. This is really exactly 206". He said "Yes" and she said "Okay". They discussed whether or not they had agreed on "5" and he said to take the "2 now" and they would discuss it later. She said the reference by her to "206" was "that's what was in the bag. That's what I confirmed with him if I said the right thing". She said she had looked in the bag and seen it was full of money, but not counted it except the amount she took herself. She said there were many $50 bundles. She said she counted (and took) $2000 because Mr Magyari said she could take $2000. 34Ms Suto sought to explain in her evidence what she meant in some of the important communications with Mr Magyari over these two days. Ms Suto said: * When she said in her SMS text "Then look at me and make the arrangements" in E7, she probably just thought she was lost and was waiting for directions. He had said to her that if she got lost, he could direct her. She just thought he would be able to help her out. Ms Suto did not ever indicate knowledge of the tracking device. * She did not know who "the man" meant when Mr Magyari said in E8 that he would call "the man". * She did not know what 206 meant, other than that is what she was to convey that it cost. * She did not know what "the gaming chips" meant or alternatively she thought that it actually meant gaming chips as used in a casino. * She did not know what Mr Magyari meant by "I looked at the pad". * She did not understand any of the directions recorded in the 11.22 call (E16) such as "So not at his place" and "Wherever you want to. I would think it's better if not there" and "Just don't take the stuff there". * She did not understand Mr Magyari's references to "unfastened plates" and "weak chain links" in E16. * She did not understand what Mr Magyari meant when he said "Congratulate the man for his birthday whichever way you want". 35Ms Suto was arrested on 2 June 2010 and interviewed at Kings Cross Police Station. The record of that interview was tendered as exhibit G. The transcript of the interview was tendered as exhibit G1. On the Crown case Ms Suto lied extensively throughout the interview. Ms Suto gave evidence to that effect. Her evidence in chief was that this was because "I was scared of Csaba and I didn't actually know what I'm involved in until ... like - a lot of things that, you know, I've been told that night, I just found out then and I didn't know how big trouble I am in. So I just wanted to protect myself." She was played a number of the intercepted telephone calls during the course of the interview and otherwise alerted to a significant amount of the evidence police had which incriminated her. In cross-examination she agreed that she told numerous lies, did so selectively and to deflect attention from herself. She said that she did her best to make the lies seem believable. 36Ms Suto agreed that she was shocked when on 2 June 2010 the police started playing recordings of her conversations. After being charged, she went to gaol until she was granted bail on 9 June. She thereafter had conferences with her legal representatives about the brief of evidence which had been served, including transcripts of all the telephone calls she had been taken to. 37When her matter was listed for a preliminary hearing on 7 August 2011, an adjournment was sought for discussions to take place with the prosecution. She was aware that she was facing a charge of supplying a large commercial quantity of a prohibited drug which reflected her alleged activities over a period of approximately 9 months. She was aware that this carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. She agreed that through her lawyer she was seeking an alternative to best avoid gaol time. 38Ms Suto gave evidence that she understood that negotiations between her lawyer and the DPP were to the effect that she could plead guilty to a lesser charge if she gave assistance to the police. She agreed that what she wanted was to stay out of gaol. She knew that the proposed reduced charge to which she ultimately pleaded guilty was knowingly take part in the supply of a prohibited drug and that this carried a maximum penalty of 15 years imprisonment and no standard non-parole period. This deal required her to go to the police station and to provide assistance. Nobody guaranteed that this would keep her out of gaol but she said "I wanted to do the best that I could". She appreciated that it was in her interests to be and appear to be as co-operative as possible when she went to the police. 39She acknowledged that by virtue of the deal, a version of facts favourable to her was able to be negotiated as agreed facts for tender on her sentence proceedings. These indicated that she did not know the type of drug she was carrying nor the amount (although her evidence at the trial was that she did not even know she was carrying drugs). Ms Suto agreed that she understood that her suspended sentence was dependent upon her coming to court and "sticking to the script" of her 11 November 2011 statement. 40Mr Bucataru was arrested on 31 May 2010 and Mr Cuzman on 9 June 2010 and the police photographed them. These photographs were used in recorded identification proceedings with Ms Suto on 11 November 2011. She selected the photographs of the applicants as persons she had seen previously during 2009 and 2010 in Adelaide. The circumstances of this contact were said to be that they had a meeting with Csaba Magyari and afterwards they went to dinner and when she delivered the "present". 41By 11 November 2011 Ms Suto had agreed to assist police. On 26 June 2012 she pleaded guilty to one charge of knowingly take part in the supply of a prohibited drug (indictable quantity) with a Form 1 document which included acknowledgment of recklessly dealing in the proceeds of crime and participating in a criminal group. She was sentenced by Tupman DCJ and received a sentence of 20 months imprisonment, which was suspended. 42Ms Suto was cross-examined about the extent of her socialisation with Mr Magyari. She saw him almost every day during the year she lived at Russell Lea. He had an office there, even after he had moved out. She said that he never talked about what type of business he was conducting. She was cross-examined about her asserted reason for doing "favours" for Mr Magyari because the payment of $3000 legal fees was for the 17th March 2010 hearing when the "favours" had started in 2009. Ms Suto was questioned regarding the deposits into her bank account and withdrawals and expenditure from it. She agreed ultimately that some of the deposits could have been payment for her trips. 43Ms Suto was cross-examined about the $2000 taken from the table on her return to Russell Lea. She suggested that the $2000 was going to be a "loan" for her to pay some fines. It was put to her that she was lying about the receipt of money from Mr Magyari and that what she was clearly discussing in the 2.20pm call was payment of $5000 total for the job. She said that she took $2000 out of the money that was on the table, then repeated the assertion made in her evidence in chief that she did not take it from the table but from the box she had brought back from Adelaide, then agreed again that she had taken it from the table. She was cross-examined about not opening the box on the basis that there was no need as the money was on the table. She maintained that she opened the box. 44Detective Senior Constable Hamilton gave expert evidence for the Crown. He said that 350 grams (of heroin) was generally referred to as a "block of heroin" which was in solid form and was often what was imported into Australia. Around $100,000 in 2010 would have been an approximate value for such an item. He said that for a transaction of that size, there were a lot of variables (one of which was purity) but that was an indicative value. A range of $70,000 to $120,000 might apply. His estimate of a range in 2010 for a 700 gram block was $190,000 to $240,000. In cross-examination he said that the information came from a number of sources. He said that there were guidelines that were understood within the undercover program which he obtained from people still involved in it. He also relied on his own experience when purchasing quantities of heroin "and I guess multiplying upwards and projecting back to, in my experience, what prices were around 2010". 45South Australian Police gave evidence regarding searches of the residence of Mr Cuzman on 31 May and 9 June 2010. There was nothing found of relevance to Count 1. The applicants were co-operative. Summary of defence case 46Neither applicant gave or called any evidence. Much of the cross-examination has been referred to in summarising the Crown case. So far as the applicants' case was concerned, no issue was taken with the Crown suggesting that Mr Magyari was a significant drug dealer. 47It was squarely put to Ms Suto that the "fat gypsy" was never in the kitchen and that she was mistaken or lying about this. She disagreed. 48Counsel for Mr Bucataru did not take issue with Ms Suto's attendance at his premises. In his opening address, it was suggested that it really might have been a birthday present that she delivered. There was evidence that Mr Bucataru's date of birth was 18 February. 49In addressing the jury, defence counsel relied upon aspects of Ms Suto's evidence which showed her account was unreliable. It was submitted that Ms Suto was either lying or mistaken - but either way she was unreliable. There was no issue taken with the evidence that Ms Suto had met Mr Cuzman once at a restaurant with Csaba Magyari and Mr Bucataru. 50The applicants submitted that there were other reasonable inferences or conclusions arising from the facts established by the Crown which were inconsistent with the guilt of the applicants. The applicants submitted that this was particularly so in relation to whether the "present" contained a prohibited drug. They submitted that the jury could not have been satisfied beyond a reasonable doubt that they had actual knowledge that what was contained in the present was a prohibited drug, in particular, heroin. In that regard, the applicants relied upon the fact that there was no direct evidence nor was there any objective or forensic evidence that the "present" contained a prohibited drug. 51The applicants submitted that there was nothing in the telephone intercepts which was capable of being a reference to a prohibited drug. THE APPEAL Christian Cuzman 52Mr Cuzman submitted that unlike Mr Bucataru whose contact with Ms Suto was confirmed by telephone intercepts and CCTV cameras, the only evidence placing him in Mr Bucataru's house on 21 March 2010 was that of Ms Suto. He submitted that there was no independent evidence that he was in the house or had any contact with the "present". He submitted that all the references by Ms Suto and Mr Magyari on the phone were to a man, singular, being met at the house and spoken to. The only exception to this was in exhibit E16 when Ms Suto told Mr Magyari that she was hungry and he suggested to "Eat at their place. Tell them you are hungry and they will immediately seat you and feed you. They are gypsies, Romanian gypsies ... you offend them if you don't eat there". Mr Cuzman submitted that this was not significant since it was a woman who fed Ms Suto, Mr Bucataru was a married man and it was not Mr Cuzman's home. 53Mr Cuzman submitted that the Crown case against him was highly vulnerable in three areas - the honesty of Ms Suto, the reliability of her act of identification, even if honest, and the cogency of the Crown case theory that 700 grams of heroin was what was taken into the house and that Mr Cuzman knowingly took part in the reception of it for supply. 54In relation to the honesty of Ms Suto, Mr Cuzman submitted that she did not tell the whole truth about her involvement with Mr Magyari or the particular trip to Adelaide. He submitted that Ms Suto had a clear motivation when providing assistance to minimise her own role in the offending. By way of illustration, he submitted that it was unexplained why she did not advise Mr Bucataru as to the cost of the package when she handed it over to him. He submitted that no good reason was given by her for why she waited and did not pass on that information as to cost until her alleged contact with him. He submitted that a proper reading of her evidence made it clear that the involvement of two men in the receipt of the package in Adelaide was quite artificial and the more likely scenario was that there was only one person, i.e. the "thin gypsy", Mr Bucataru. 55Mr Cuzman submitted that Ms Suto's evidence about not understanding various instructions which were given to her by Mr Magyari and which were recorded in the telephone intercepts was false and should not be accepted. He submitted that there were numerous interpretations which could be given to the words recorded by the telephone intercepts, none of which was consistent with Ms Suto having given a forthright description of what she was doing during her trip to Adelaide. 56Mr Cuzman submitted that Ms Suto's evidence was patently false regarding the money at Russell Lea. He submitted that she had difficulty in simultaneously trying to maintain that she had seen the money inside the box and had counted some of it (so as to help the prosecution) but had not counted all of it (downplaying her own criminality). He submitted that her assertion that there was also money on the table was an attempt to downplay her own criminality. He submitted that if there were money on the table, this significantly undermined her evidence that there was money in the box and that this was known to her because she had a reason to count it. 57Mr Cuzman submitted that Ms Suto's evidence as to her relationship with Mr Magyari was not frank. He submitted that the bank records (exhibit D) showed clear instances of receipt of large sums of money and expenditure on luxury items. He submitted that her evidence that she was forced to undertake the trip to Adelaide, despite her protestations, was fanciful. He submitted that the supposed indebtedness of Ms Suto to Mr Magyari for paying the solicitor should also not be accepted. He submitted that the real situation was more correctly described by her evidence under cross-examination that Mr Magyari "looked after" her and had done so for some time. He submitted that Ms Suto was clearly in a situation where she received significant financial support from Mr Magyari and willingly associated with him and his activities and actively participated in criminal activities for him to keep up her desired lifestyle. 58Mr Cuzman submitted that her continued attempts to maintain, despite the evidence and despite her guilty plea, that she did not know that she was conveying drugs to Adelaide was dishonest and would cause further serious disquiet regarding her reliability. He submitted that the entire case against him depended upon the veracity of this one witness. He submitted that the entire case against him comprised her evidence as to a short conversation in circumstances where that was an inclusion easily made by a witness who was shown to be demonstrably dishonest and who had a motivation to implicate even an innocent person to increase the extent of her offered assistance. 59In relation to his identification by Ms Suto, Mr Cuzman referred to the unreliability of her identifying someone she had met only once seven months earlier at a dinner at which she may have been fatigued and intoxicated. This was particularly so when she was not even introduced to him. He submitted that she was fatigued on 21 March 2010 in Mr Bucataru's house and that the alleged contact with him was for only a few minutes. He submitted that she may have had an expectation that any male not Mr Bucataru approaching her in those circumstances would be him. 60Mr Cuzman submitted that the Crown case theory was highly speculative as to the precise interpretation required for guilt of Count 1 to be established and that there were considerations pointing in different directions. He submitted that the introduction of the alleged price of 700 grams of heroin ($206,000) in such a casual manner by Mr Magyari was not consistent with the picture otherwise presented of that person as a highly suspicious professional drug dealer. Mr Cuzman submitted that it was highly unlikely that he would have said nothing of price to Ms Suto or the recipient of the drug before she arrived in Adelaide. Despite its implausibility, that was the only interpretation on the Crown case of the communication on 21 March ("Well just that I forgot to tell you, how much the stuff. The [gaming] chips. Wait, I'll just reckon I forgot. I think it was 206 or something like it." (E9)) 61Mr Cuzman submitted that the carelessness with which the "birthday package" was conveyed in the car on Ms Suto's evidence was inconsistent with it being 700 grams of heroin. He submitted that there was no evidence that it was heroin, other than that of the police officer which was dependent upon "206" representing $206,000. In that regard, Mr Cuzman submitted that there were other illicit substances with which Mr Magyari was associated, such as cocaine and methylamphetamine, in relation to which no evidence was given as to price. 62Mr Cuzman submitted that even accepting the complete veracity of Ms Suto, and the safety of her identification, and the cogency of the Crown case generally, the evidence against him did not clearly demonstrate an act of knowingly take part in the supply of a commercial quantity of heroin. He submitted that if he did convey the information from Ms Suto to Mr Bucataru as to price, it is far from clear that this was done in a way consistent with guilt of this particular charge (i.e., knowledge that a commercial quantity of a prohibited drug was received). 63In summary, Mr Cuzman submitted that the central question in his appeal was whether it was open to the jury to be satisfied beyond reasonable doubt that he was in Mr Bucataru's house on 21 March 2010 and spoke with Ms Suto as she alleged and if so, whether the jury could be so satisfied as to the Crown's circumstantial case as to what this meant. He submitted that Ms Suto was a deeply flawed witness and that the very small portion of her evidence inculpating him was capable of having easily been added by a witness as dishonest and motivated as she was. Mr Bucataru 64Mr Bucataru made similar submissions as to the honesty and reliability of the evidence of Ms Suto. In doing so, he accepted that unlike Mr Cuzman there was some independent evidence which linked Ms Suto directly to him, i.e., the telephone intercepts, the CCTV footage and the presence of her car in his street. Nevertheless, he submitted that for him to be convicted the Crown case required that the only reasonable inference that could be drawn from a consideration of all of the established facts and evidence was that he was guilty of the offence contained in Count 1. If there were any other reasonable inference open that was inconsistent with his guilt, then the Crown's circumstantial case could not succeed. 65He submitted that there were other reasonable inferences or conclusions arising from those facts and the evidence that were inconsistent with his guilt. In particular, he submitted that it had not been established beyond reasonable doubt that the "present" did contain a prohibited drug. 66Mr Bucataru referred to the same evidence as did Mr Cuzman to demonstrate the untruthfulness and unreliability of Ms Suto. By way of illustration, he submitted that Ms Suto did not do favours for Mr Magyari because she owed him money but because she was being paid to do them. In support of that submission, Mr Bucataru relied upon her bank statements between 22 August and 22 October 2009 which set out the following transactions: 25 August Cash Deposit $3000 31 August Cash Deposit $3950 29 September Cash Deposit $9000 8 October Withdrawal $8500 12 October Cash Deposit $5400 14 October Internet transfer $5000 67In summary, Mr Bucataru submitted that Ms Suto was an unreliable witness who on her admission had no difficulty in telling lies when those lies were perceived by her to be for her own benefit or advantage. He submitted that she was a witness who was criminally concerned in the events giving rise to the offences in Counts (i) and (ii) on the indictment. In that regard, he noted that Ms Suto was a witness who received considerable benefits from agreeing to co-operate with the prosecution and to give evidence. 68Mr Bucataru submitted that the jury could not have been satisfied beyond a reasonable doubt that what Ms Suto transported from Sydney to Adelaide on 21 March 2010 was a prohibited drug. He submitted that there was no direct evidence to that effect. There was no evidence as to the weight of the "present". He submitted that there was no conversation in the telephone intercepts which could have been considered to be referrable to a prohibited drug and no conversation that could have been considered to be referrable to the prohibited drug heroin. He submitted that there was no conversation that could have been considered to be referrable to the weight of any prohibited drug and/or in relation to any money. 69In oral submissions in the appeal, counsel for Mr Bucataru refined that latter submission in a way somewhat different to the written submissions. 70He referred to the wording of Count 1 on the indictment which was in the following terms: "Between 3 March 2010 and 22 March 2010 at Sydney and elsewhere in, and outside, the State of New South Wales, knowingly took part in the supply of a prohibited drug, namely heroin, being an amount not less than the commercial quantity of that drug." By reference to that count, he submitted that there was no evidence before the jury which could establish that what was in the "present" was not less than a commercial quantity (250 grams) of heroin. 71He submitted that it was an essential element in the Crown case that the prohibited drug being transported was heroin. Not only that, for Count 1 to be made out, there had to be more than a commercial quantity of heroin. He submitted that the only evidence as to there being more than a commercial quantity of heroin came from the police officer to the effect that $206,000 could be expected to purchase approximately 700 grams of heroin in 2010. 72Mr Bucataru submitted that the evidence of the police officer was based on the assumption that what was being transported was heroin but that this assumption had never been established. He submitted that if a drug other than heroin was being transported (such as cocaine or methylamphetamine) there was no evidence as to what a commercial quantity of that drug was and to what extent, if at all, the figure of $206,000 could establish than not less than a commercial quantity of such a drug was being transported. 73Mr Bucataru noted that the Crown's decision to rely upon heroin as the drug being transported in March 2010 appeared to have arisen from a transaction conducted between Mr Magyari and a Mr Bodo(?) some two months later in which heroin was the drug involved. That transaction, however, formed part of the offence to which Count 3 related and in respect of which the applicants were acquitted. It was made clear at the trial that the evidence led in respect of Count 3 could not be used to establish Count 1. 74Mr Bucataru put the same submission in a slightly different way. There was no evidence as to the weight of the "present". The only evidence as to weight was a reconstruction by the police officer that an amount of $206,000 could purchase approximately 700 grams of heroin in 2010. That reference to weight, however, depended entirely upon the substance being transported being heroin, which was not otherwise established. The police officer gave no evidence as to how much of any other drug an amount of $206,000 would purchase. Consideration 75The point taken by the applicants in oral submissions as to the Crown failing to prove that the drug being transported was not less than a commercial quantity should be accepted. The jury could not have been satisfied beyond reasonable doubt as to that element of the offence because there was no evidence that the substance being transported was heroin and in the absence of that being established, there was no evidence of the weight of the substance being transported. Consequently, there was no evidence that there was not less than a commercial quantity of heroin or other illegal drug being supplied. 76The elements of the offence are uncontroversial and were set out by the trial judge, both in writing (AB 203) and in the summing up (SU 23). In the written direction provided by his Honour the following was set out: "Prohibited Drug The prosecution must prove that the substance supplied, in effect the supply in which it is alleged the accused took part, was a prohibited drug. Here the prosecution alleges that the prohibited drug was heroin. Heroin is listed as a substance declared to be a prohibited drug under the relevant legislation for the purposes of this offence. What the prosecution must prove is that the relevant accused you are considering knew or believed at the time that he knowingly took part in the supply of a substance that it was a prohibited drug. The prosecution does not have to prove that the accused knew that the drug was a particular one specified in the charge. The identification of heroin is what lawyers call a particular. The prosecution does not have to prove that the accused knew or believed that it was heroin, but the prosecution does have to prove that the accused knew or believed that the substance that he took part in supplying was a prohibited drug. The commercial quantity The Crown alleges that what was supplied was at least a commercial quantity of the prohibited drug so the prosecution must prove beyond reasonable doubt that the amount of the drug supplied was not less than the quantity prescribed by law for this particular drug, that is heroin, as being a commercial quantity. For the prohibited drug heroin a commercial quantity prescribed by law is 250 grams including admixture and you heard some reference to this in the evidence. This is the total weight of the quantity of the particular substance. It must include a prohibited drug, but it does not matter what the percentage of purity is." (SU 23 ....) 77It is true that this precise point was not taken at trial, although it is clear that there was always an issue as to whether that which Ms Suto was transporting to Adelaide was a quantity of a prohibited drug. It appears to have been assumed at trial, but there was no admission to that effect, that if the substance being transported was a prohibited drug then the prohibited drug was heroin. Hence the circuity of reasoning which led to the Crown seeking to establish weight by reference to how much heroin $206,000 could buy. 78Even though this point was not taken in terms at the trial, and even though there appears to have been an assumption by the parties that if the substance was a prohibited drug that drug was heroin, the Crown was not absolved from establishing beyond reasonable doubt the essential elements of the offence in Count 1 which included the supply of a substance being not less than a commercial quantity of a prohibited drug. This it failed to do. It follows that in relation to each of the applicants the conviction for the offence in Count 1 must be quashed and a verdict of acquittal entered. 79That, however, does not end the matter. Section 7(2) of the Criminal Appeal Act 1912 provides: "7(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity." 80The correct approach to the application of s7(2) was considered by Johnson J (with whom Price and RA Hulme JJ agreed) in Tonari v R [2013] NSWCCA 232 where his Honour said: "213 Before this Court can return verdicts on lesser charges under s.7(2), the Court must apply the rigorous approach outlined in Spies v The Queen [2000] HCA 43; 201 CLR 603 ("Spies"). 214 Offences under s.61I are wholly included offences by reference to ss.61J and 61Q: Spies at 611-612 [23]-[24]. 215 I am satisfied that the verdicts of the jury demonstrate that the jury was affirmatively satisfied of facts that constitute each of the s.61I offences: Spies at 613 [27]. 216 The power conferred by s.7(2) is a very useful one which, in appropriate cases, will result in the saving of time and expense and avoid the inconvenience and worry of victims and witnesses having to testify once again before a jury: Spies at 620 [47]. 217 The power under s.7(2) is to be exercised with great caution: Spies at 620 [47]. The need for caution is directed to the issue whether it really does appear that the jury was so satisfied of the facts constituting the other offence: Spies at 621 [48]." 81The plurality (Gaudron McHugh Gummow and Hayne JJ) in Spies v R [2000] HCA 43; 201 CLR 603 said: "23 The power conferred by s 7(2) of the Criminal Appeal Act is most likely to be exercisable in situations where the "other offence" is one which is wholly within the ultimate facts of the offence on which the accused has been convicted and which the court sets aside in the appeal. The classic case is a conviction for assault occasioning grievous bodily harm where the court is of the opinion that the prosecution has failed to prove, or there has been a misdirection on, the issue of grievous bodily harm. In those circumstances, the entry of a conviction for common assault would be a clear case for the exercise of the power under s 7(2). In R v Vella this Court refused to grant special leave where the Court of Criminal Appeal of Queensland had substituted a verdict of common assault for a conviction for assault occasioning actual bodily harm. Latham CJ said: "All charges of assault, with whatever additional aggravating circumstances as compared with common assault, necessarily include the elements constituting the offence of common assault. Therefore it appears to me the section necessarily applies in such case." 24 Other pairs of offences which readily come to mind as likely candidates for the application of the sub-section include murder and manslaughter[10], rape and carnal knowledge, assault with intent to commit rape and indecent assault, incest and carnal knowledge, robbery under arms and robbery, larceny and receiving, housebreaking and receiving, obtaining a chattel by false pretences and obtaining credit by false pretences, many substantive offences and attempts to commit them, burglary and housebreaking, embezzlement and larceny. However, s 7(2) can be applied in any case where it appears to the court "that the jury must have been satisfied of facts which prove the appellant guilty of that other offence". Thus, in R v Grasso, the Full Court of the Supreme Court of Victoria thought that, having regard to the indictment and the evidence, it could substitute a conviction of assault occasioning actual bodily harm after setting aside a conviction of assault with intent to commit rape. ... 27 The words "must have been satisfied of facts" indicate that it must appear to the court that, having regard to the evidence, the conviction on the charge which is quashed necessarily meant that the accused was guilty of acts or omissions which, as a matter of law, constitute another offence. The other offence must, of course, be one which the "jury could on the indictment have found the appellant guilty of". As Callaway JA pointed out in Cervelli, it is not necessary that the relevant facts "be logically implied by the verdict, because regard may be had to the evidence and common ground at the trial." Nevertheless, the court must be able to say that, given the evidence at the trial and what was common ground, the conviction verdict demonstrates that the jury were affirmatively satisfied of those facts which constitute the other offence. ..." 82In this case Count 2 on the indictment (which was the alternative to Count 1) was in the following terms: "Between 3 March 2010 and 22 March 2010 at Sydney and elsewhere in and outside the State of New South Wales knowingly took part in the supply of a prohibited drug." The elements of that offence are the same as those for Count 1 except for the requirement to prove that the quantity of prohibited drug was a commercial quantity. In relation to Count 2, all that the prosecution must prove is that the quantity was not less than 5 grams which is an "indictable quantity". 83Here the evidence of Ms Suto was that the package was 20 cms long and 10 cms high in a sort of a brick shape but not weighing as much as a brick. I am prepared to infer as would the jury that a package with those dimensions, shaped like a brick but not weighing as much as a brick, would weigh at least 5 grams. 84What that means is that although the applicants have succeeded in relation to Count 1 the issues which they raised in the appeal in relation to the reliability and truthfulness of Ms Suto, questions of identification and the Crown case theory, still have to be considered by this Court. This is necessary to determine whether a verdict of guilty of the offence in Count 2 had been made out or whether such a verdict is unreasonable and unable to be supported having regard to the evidence. 85The law in this area is now well settled. In SKA v The Queen [2011] HCA 13; 243 CLR 400 the plurality (French CJ, Gummow and Kiefel JJ) said: "The task of the Court of Criminal Appeal 11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "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". 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." ... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."" 86With those principles in mind, in a case such as this where so much depended upon the acceptance of the evidence of Ms Suto, it is important to remember that the jury was the body entrusted with the primary responsibility of determining guilt or innocence. It had the benefit of having seen and heard Ms Suto. The question is whether despite that consideration, this is one of those cases where "the accumulation of inconsistent and unsatisfactory evidence can serve to undermine a Crown case. The question is whether that point is reached in a particular case so that the verdict or verdicts are unsafe and unsatisfactory" (Cusack v Regina [2009] NSWCCA 155; Beazley JA (with whom Blanch and Howie JJ agreed) at [89]). 87The jury was well aware of the potential problems with the evidence of Ms Suto. Not only did both counsel appearing for the applicants at trial stress in considerable detail what they regarded as inconsistencies and untruths in her evidence, but the trial judge gave strong warnings as to the reliability of her evidence. At SU 47-50 his Honour set out the circumstances of Ms Suto and in particular the fact that she was criminally involved in the matters giving rise to Counts (i) and (ii) and that she had obtained a significant advantage insofar as the sentence which she received by agreeing to co-operate with the police. Having reviewed those matters in considerable detail, his Honour said: "For these reasons her evidence must be scrutinised with great care because of the circumstances in which she comes forward as a witness, and these circumstances may make her evidence unreliable. In light of the bargain that was negotiated on her behalf, or by her, she may well feel locked in to that arrangement and thus simply be relating a story that accords with the basis upon which the bargain was reached. She may be trying to exculpate herself or minimise her role by either fabricating or exaggerating the role of others, or simply just not telling the truth about critical matters. It is to be borne in mind that on her own version, she is in a position to relate details about what happened from her direct knowledge in order to give her version greater credibility. She may fabricate or exaggerate allegations against the accused persons, or each of the accused persons, for reasons that could never be known. There may be other reasons for her to falsely implicate one or other of the accused which are not apparent or, more importantly, not capable of exposure. It may be to shift the blame away from other people that are unknown. A person who wishes to shift blame or falsely implicate another for his or her own benefit may be very persuasive and may be capable of pretending that he or she is truthful in recounting these events. In considering any interest she may have had in minimising her own role, you bear in mind that in doing so the witness may be seeking to protect herself from prosecution and imprisonment for more serious crimes. This warning I give you in relation to this aspect of the matter is borne from the experience of courts over many years in relation to the potential unreliability of those who are criminally concerned with relevant events and may wish to give evidence to fulfil some promise or to obtain some self benefit. Persons who give evidence in these circumstances, who admit to committing crimes in the past, may be inherently unreliable by the very character of their self-admitted conduct. I advise you that this warning I give is not because I have formed any personal view about the evidence, nor because this warning is a consequence of my personal experience." (SU 51-52) "This being so, unless you are satisfied beyond reasonable doubt that Ms Suto is both an honest and accurate witness in the account she has given in relation to the matters requiring proof by the Crown, you cannot find either of the accused guilty. Before you can convict the accused you should examine the evidence of Ms Suto very carefully in order to satisfy yourself that you can act safely upon that evidence to the high standard required in a criminal trial. Again this caution is not based upon any personal view I have of the evidence. Where the Crown case relies or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am not suggesting to you that you are not entitled to find a particular accused guilty upon the evidence of Ms Suto in conjunction with the other evidence. Clearly you are entitled to do so, but only after you have carefully examined the evidence and satisfied yourself that it is truthful and reliable in the relevant respects beyond reasonable doubt." (SU 52-53) 88His Honour then reviewed the evidence of Ms Suto in relation to prior inconsistent statements, in particular the first statement which she made to the police on 2 June 2010 which she herself acknowledged contained a number of lies. His Honour also referred to some differences between the agreed statement of facts on which Ms Suto was sentenced and her evidence at the trial. His Honour then gave a strong direction as to what use could be made of prior inconsistent statements when assessing the credibility of a witness. "If there is an inconsistency established between a previous statement or evidence and evidence given in this court, it may be taken into account in either assessing the credibility of the particular witness in a particular respect, or in assessing the credibility of the witness generally. In considering such inconsistencies you may, if you are satisfied that there are inconsistencies, regard those matters as reflecting adversely upon the truthfulness and/or the reliability of the witness. The significance of these matters in relation to a particular witness will depend upon a number of matters, including the significance of the inconsistency or the number of the inconsistencies or, of course, the significance of the witness in the case in conjunction with other matters." (SU 54-55) 89His Honour gave a further warning in relation to the evidence of Ms Suto as to her identification of Messrs Cuzman and Bucataru. His Honour said: "Secondly, she is the only person who alleges the detail of what occurred in the house about the exchange of the birthday present for the yellow shoebox, which she said contained the cash. If you are satisfied that she did meet people in a house, you will need to scrutinise her identification of the men she said she met with special care, because evidence of identification where a person is seeking to identify someone with whom they're not necessarily familiar, or not overly familiar with, or have not met often, may be unreliable. This warning is, of course, concerned with the reliability of the evidence of identification. But, of course, in this case, there is a strong attack upon the honesty of the witness for the matters I have already outlined. Of course, a dishonest witness may be inherently unreliable for many reasons quite different from those relevant to a witness who's reliability alone is an issue. Special caution is necessary before you accept the identification evidence because of the possibility that even a completely honest witness may be mistaken in his or her identification of a person with whom they may not be greatly familiar. I am not suggesting that the evidence of such a witness must be regarded as unreliable, but it is the fact that the evidence of such a witness may be unreliable. The common experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence in these circumstances may turn out to be unreliable. There have been many notorious cases over the years in which completely honest evidence of identification has been demonstrated either by DNA testing or by other means to have been wrong and innocent people have been convicted, sometimes with irreversible results." (SU 57-58) 90It is not without significance that the jury after the summing up and after they had commenced their deliberation asked to review the transcript of Ms Suto's testimony, including responses to the Crown, and in cross-examination (19.10.2012). 91The difficulty for the applicants, particularly Mr Bucataru, is that the overwhelming effect of the evidence, particularly the telephone intercepts, is to the effect that Mr Magyari regarded the "present" as a valuable commodity which was being taken down to Adelaide. A strong indicator of this is the use of the tracking device to keep a check on the location of Ms Suto. The reference to "$206" in exchange for the delivery of the "present" is strongly suggestive of an illegal process taking place. Despite the qualifications and (it may be fairly said) evasiveness of Ms Suto in relation to parts of her evidence, the likelihood of drugs being delivered is very strong. This is because of Mr Magyari's known activities as a drug supplier and the complicated manoeuvring which occurred before Ms Suto met with Mr Bucataru in Adelaide. Mr Magyari's anxiety about the meeting and the handing over of the package strongly support that inference (i.e., E15 and E16). 92One of the difficulties with the approach followed by the applicants in the appeal is that they focused on particular aspects of Ms Suto's evidence which did not reflect favourably upon her but to a significant extent lost sight of the total effect of the evidence adduced by the Crown. 93As already indicated, the fact that Ms Suto was an unreliable witness in some respects had less bearing on the Crown case against Mr Bucataru than in relation to Mr Cuzman since there was no dispute that Mr Bucataru was present at his house in Adelaide on 21 March 2010 when Ms Suto delivered the "present". There was also the communication between Mr Bucataru and Mr Magyari before the meeting and the telephone contact between Mr Magyari and Ms Suto at that time. I am satisfied that it was well open to the jury to be satisfied beyond a reasonable doubt that Mr Bucataru knowingly took place in the supply of a prohibited drug on that occasion. 94The basis of Mr Cuzman's challenge to the evidence implicating him is that there was no independent evidence that he was in Mr Bucataru's house on 21 March 2010. The resolution of that issue did depend very much upon whether the jury accepted the evidence of Ms Suto on that issue. That this issue was essentially a jury question emerges clearly from the evidence. 95In chief the evidence of Ms Suto was: "CROWN: Did anyone introduce you to the lady? A. No. Q. So is it the case that when you first went into the kitchen after your shower the lady was already there? A. Yes. Q. Did she give you some food something to eat? A. Yes. Q. While you were there in the kitchen did anybody else come in? A. A bit later, yes. Q. Who? A. The fat gypsy. Q. The fat gypsy, all right. What happened when he came in? Did you have a conversation with him? A. Yes. Q. What did you say to him? A. I said what Csaba told me to say, the present was $206. Q. When you said that to the fat gypsy what did he then say to you? A. He said that he wasn't expecting me and he's not happy. He needed to talk to Csaba, next time he wants to see him. Q. Wanted to see him? A. Yes. Q. What did you say to that? A. I said "all right". Q. How were you feeling then? A. A bit scared because I thought he was a bit annoyed, yeah. Q. Had you had any sleep by this stage? A. Yes. Q. You had, all right. HIS HONOUR: Just explain that. You said you had a shower. Did you go to sleep after the shower? A. Yes. Q. Well, tell us. That's what the Crown's asking you. A. Yes. CROWN: How long were you - A. A couple of hours. Q. A couple of hours. All right. HIS HONOUR: Q: Just so I understand, if nobody else: You had a shower, then you had a sleep? A. Yes. Q. For a couple of hours? A. Yes. Q. Then you went into the kitchen to get some food is that what you're saying? A. Yes. Q. Right. CROWN: Q. After you had this conversation with the man you've described as the fat gypsy, where you said you were scared, what was the next thing that he said to you? A. That he's coming back soon. Q. He's coming back soon? A. Yeah, I have to wait. Q. What did you do then? Well, first of all, after he said that, what did he do or where did he go? A. He just left. I don't know where he went. Q. You were still in the kitchen? A. Yes. Q. Where did you go from the kitchen if anywhere? A. Nowhere. Q. All right. Now, you're in the kitchen, the man you've described as the fat gypsy has left after telling you to wait. What happened then? What was the next thing that happened? A. He came back with a bag - not him - someone else. The thin friend. Q. The thin friend? A. Yes. Q. When you say the thin friend, is that someone you've already been speaking about? A. Yes, yes. Q. What have you referred to him as before? Not the thin friend? A. The thin gypsy yes. I'm sorry. Q. The thin gypsy okay. So the thin gypsy came back did he? A. Yes. Q. What did he do when he came back? A. He gave me another bag. Q. Can you describe that other bag? Just tell us what it looked like. A. Yeah, it was like a shoebox. Q. Well a shoebox, you said bag? A. In the bag, yes. Q. So there were two things, were there. Was there a shoebox and a bag? A. Yes. Q. Do you remember the colour, for instance of the bag? A. Yellow or yellowish, yeah. Q. Sorry. A. Yellow. Q. What was yellow the shoebox. A. The shoebox was yellow all right. ... CROWN Q: At that stage, or at that point in time, did you look in the shoebox? A. No. Q. How did the shoebox feel in terms of weight? A. Yes. It was not as heavy - well it was heavier than a box of chocolate but not as heavy as a brick or something. Q. This is the shoebox is it? A. yeah. Q. The shoebox that the thin man gave you? A. Mmm. Q. All right. Now, when he gave you that bag, what did you do with it? A. When I left I took it with me. Q. When did you leave, then. A. After I got it. Q. After you got the bag? A. Mmm-hmm. Q. With the shoebox in it? A. Mmm-hmm. Q. Did you look in it when you got in the car at some stage? A. No. Q. Where did you put the shoebox then? When you got in the car, where did you put the shoebox? A. To the same place, in the front of - the front seat of my car. Q. I think you said in the mother-in-law seat, is that right? A. Yes. Q. Where did you go then? A. Sydney. Q. Sydney. A. [No verbal reply]. Q. How did you get to Sydney? Did you drive? A. Drove, yes I was driving." 96In cross-examination by Mr Coroneos on behalf of Mr Bucataru the following exchange took place between him and Ms Suto: "CORONEOS: Q. At some stage you were in the kitchen talking to somebody? Do you recall that? A. Yeah. Q. You were asked this question by the Crown at page 108 of the transcript at point 4: "Q. All right. Now, you're in the kitchen. The man you've described as the fat gypsy has left after telling you to wait. What happened then? What was the next thing that happened?" Do you recall being asked that question? A. Yeah. Q. Your answer was as follows. You said, "He came back with a bag". Then there was long pause by you, I suggest, and then you said, "Not him, someone else, the thin friend." A. Yeah. Q. You were asked, "What happened next?" Your first response was, "He came back with the bag," referring to the person you've described as the "fat gypsy". That was the case, was it not? A. No, he took it and the thin one came back. Q. You then went to your car and drove back to Sydney, didn't you? A. Yes." (T.285 - 4.10.2012) 97In cross-examination on behalf of Mr Cuzman by his counsel, Mr Price, the following exchanges took place between him and Ms Suto: "PRICE: Q. Part of your evidence is that on 21 March 2010, you had a conversation with a person in the kitchen of the house in Adelaide that you had previously met and knew to be a person known to you only as the fat gypsy; correct? A. Correct. Q. Now, you've said a few different things about what happened that day as you've given your evidence over the last week; would you accept that or A. Well, doesn't change the facts. Q. Well, at page 108 of the transcript, I'll just take you to a couple of those issues or a couple of those points. Page 108 of the transcript, you told the Court in response to questions asked of you by the learned Crown Prosecutor: "Where did you go from the kitchen, if anywhere? A. Nowhere. Q. All right. Now you're in the kitchen. A man you've described as the fat gypsy has left after telling you to wait; what happened then; what was the next thing that happened? A. He came back with a bag." You said, and then you had a long pause, and then you said: "Not him, someone else." A. Well, can't I think about the question or I thought I can. Q. No, do you remember giving that response? A. Yes. Q. I'm not criticising you. A. Well, it seems like that. Q. I'm just saying, do you remember giving that response? A. Yes. And I corrected it. Q. Then you changed your position, you said, "The thin friend". A. Exactly. Q. Then the Crown asked you, "The thin friend?" as a question. You said, "Yes," and then you clarified it as, "The thin gypsy." Yes? A. Yes. Q. Mr Coroneos asked you about that very same point I think it was yesterday at page 285 of the transcript, and there was this exchange between Mr Coroneos and yourself at point 5 of the transcript: "Q. At some stage you were in the kitchen talking to somebody; do you recall that? A. Yeah. Q. You were asked this question by the Crown at page 108 of the transcript, point 4: 'Q. All right. You're in the kitchen. The man you've described as the fat gypsy has left after telling you to wait. What happened then? What was the next thing that happened?' Q. Do you recall being asked that question? A. Yes." Q. So Mr Coroneos is asking exactly the same thing about what I've just asked you about; all right? A. Mm." "Q. Your answer was as follows. You said, "He came back with a bag," then there was a long pause by you, I suggest, and then you said, "Not him, someone else. The thin friend." A. Yeah. Q. You were asked, "What happened next?" Your first response was, "He came back with the bag," referring to the person you've described as the fat gypsy. That was the case, was it not? A. No. He took it and the thin one came back." Q. That's what you said to Mr Coroneos yesterday, as is recorded in the transcript, page 285, point 27. Is that right, or is that just a mistake? A. In order of the actions doesn't matter which one was first or second. I never said any different stories, that I went to Adelaide, had some Romanian sausage and coffee and then came back to Sydney. I always said the same thing. If I went for a shower first or after, that doesn't change any facts. Q. Are you a little fuzzy on your memory of what actually happened in that kitchen on that day? A. No." CROWN PROSECUTOR: I object to that, your Honour. I object to the way my friend has put those questions, because he's suggesting that the witness has said something different to what she said originally that is, on p 108. He's suggesting that she has then said something different, as I understand his cross examination, on p 285, and in fact she doesn't say something different. What she says is, when she's asked and I'm looking at p 285, when Mr Coroneos said, "You were". HIS HONOUR: You can sit down, Mr Price. CROWN PROSECUTOR: Sorry, your Honour? HIS HONOUR: Sorry. I'm just asking Mr Price to sit down while you're on your feet. Yes? CROWN PROSECUTOR: "Q. You were asked, 'What happened next?' Your first response was, 'He came back with the bag,' referring to the person you've described as the fat gypsy. That was the case, was it not?" A. No. He took it and the thin one came back." HIS HONOUR: Right. CROWN PROSECUTOR: You see, Mr Coroneos is suggesting to her that in fact where she said, "He came back," she meant the fat gypsy, and she says, "No, I didn't mean that, I meant the thin gypsy." Even though she said, "He came back with the bag," not him HIS HONOUR: Yes, I understand. CROWN PROSECUTOR: I mean, she's simply saying, "I didn't ever say that," and HIS HONOUR: Well, with respect, I think the point of Mr Coroneos' question was to suggest that's what she meant. CROWN PROSECUTOR: Yes. HIS HONOUR: But she said, "That's not what I meant." CROWN PROSECUTOR: No. HIS HONOUR: And I thought the point of his questioning was to suggest that that was a slip on her part. CROWN PROSECUTOR: Yes. But now, as I understand it, Mr Price is saying that she has now said something different when she answered Mr Coroneos' question, and what I'm saying is HIS HONOUR: I think that's a matter for comment rather than for the witness to further comment upon. I note your objection, Mr Crown. CROWN PROSECUTOR: Yes, thank you, your Honour. HIS HONOUR: I think the point of the Crown is well made, unless you've got something else to say about it, Mr Price. These are matters for comment in due course, aren't they? PRICE: Yes. HIS HONOUR: I mean, if you want to take up PRICE: I don't want to take it up. HIS HONOUR: No, no, just hear me. If you want to take up what is the implication of the line of questioning of Mr Coroneos, you're welcome to do that. You're not obliged to accept her answer, either in relation to the matters raised in cross examination or the evidence she gave in chief. That's a different issue. I think the Crown's objection, that what you put isn't the representation of what she said in cross examination, is well founded. But you're welcome to deal with it in another way if you wish. PRICE: No. I just wanted to put to her the different comments made as things were put to her, in fairness, from the transcript, that's all. Now I'm going to go to her statement. HIS HONOUR: Right. PRICE: Q. Now, as has been put to you during these proceedings, you gave a statement in relation to this matter on 11/11/2011. Do you recall that? A. Yes. Q. At page 9 of the statement, paragraph 47, you told this to the police actually, I'll go back a paragraph to put it into context. Page 8 of 11, paragraph 46, you said you went to the kitchen for some food: "While in the kitchen I met a woman who I began talking with. I think it was someone's wife, because she lived there. We had a conversation about general stuff, like what I'm doing, where I'm from, stuff like that. I ate some food." Do you remember that? A. Yes. Q. "Shortly after, another man came into the kitchen. I would describe this man as being a bit taller than me, about 175 to 180 centimetres tall, a bit round, his belly, or overweight. Big face, big lips, protruding dark brown eyes, dark coloured skin, short black hair. I don't remember what he was wearing. This man was the fat gypsy that Csaba and I had met on our first trip to Adelaide." A. Correct. Q. That's what you told the police 11/11/2011; right? "When this man came into the kitchen I had a conversation with him to relay what Csaba had said to me over the phone. I said, '$206 for the present'." Right? A. Yeah. Q. "He then responded" and you've already given evidence about who was standing where earlier on in the cross examination that I had with you, he said to you: "I wasn't expecting you. I was expecting Csaba. I told him I need to speak to him because I'm not happy. Next time tell him he has to come." A. Yeah. Q. You said, all right, you said you were a little bit scared because he sounded annoyed, "All I wanted to do was to tell him what Csaba told me and get out of there." A. Yeah. Q. He said, "You have to wait a couple of hours. I'll be back." Then he walked out of the kitchen, right? A. Yeah. Q. You never saw him again, did you? A. No. Q. After that conversation, paragraph 49, "I" being you "went into the bedroom and slept for a couple of hours." Right? A. Yeah. Q. Okay. Now, that's the sequence of events, isn't it? Yes? A. Yeah. Q. So, you'd just driven there, all that way, you're in the kitchen speaking to the woman, having some food, hadn't had a sleep yet, and this person comes in and then has this quick conversation with you, is off to the side of you and then leaves and you never see him again; correct? A. Yeah. Q. That's the context, isn't it? A. Don't forget, I saw him two times before or once. Q. You saw him before. A. Yeah. Q. At the restaurant. A. Yeah, that's right. Q. And you never saw him another time? A. So. Q. But you just said two times before? A. One time before; I just corrected. Q. Right. See, what I suggested to you, of the very first questions I asked you this morning was that you knew the person you identified to the police from the person that you met at the restaurant. You made a mistake when you thought that was the same person in the kitchen of the house. Do you understand that? A. Yeah. Q. All right. Is it possible, as you sit there now, as we've gone through and asked all of these questions and you've gone back and searched your memory, that you were mistaken? A. No. Q. Notwithstanding that you might have said some things differently in your evidence in relation to questions asked of you by the Crown or Mr Coroneos, do you want to change anything from what I've just read from your statement now? A. If I was mistaken, it was only small details that I wouldn't remember, tomorrow or yesterday, that doesn't change anything. Q. So that's a no, you don't want to? A. Yeah, that's right. Q. What I'm putting to you, ma'am, just so you're clear, is that Mr Cuzman, the person you've described as the fat gypsy, was never in that house, in that kitchen, on that day; you're mistaken; that's what I'm putting to you? A. Okay. Q. Do you agree or disagree? A. Obviously, I have to disagree. Q. You're mistaken about it when you either told the police that that was the person when you gave your statement or that you agreed to a proposition that they put to you; you were mistaken when you told the police about that on 11/11/11 and now you've stuck with it and you have to stick to the script; that's what I'm putting to you? A. I believe I wasn't. Q. You never told the police when you were arrested on 2 June 2010 anything about a fat gypsy back then, did you? No? A. No." (T.410-416 - 5.10.2012) ... Q. You're saying what you think you can get away with to help the Crown case, that includes saying things that you never really saw, like swapping suitcases or whether or not Mr Cuzman was actually in the kitchen that day; you're making it up. A. No, I'm not. PRICE: Nothing further. Thank you, your Honour. WITNESS: If I want to make up something, I would have made up more serious things, okay." (T.417 - 5.10.2012) 98The foregoing is the entirety of the evidence, both in chief and cross examination in relation to the presence of Mr Cuzman in Mr Bucataru's house on 21 March 2010. It is clear from that evidence that the jury who saw and heard the evidence being given were in a far better position to assess the truthfulness and reliability of Ms Suto than is this Court. This is particularly so when Ms Suto had already been extensively cross-examined as to her credit. 99From the point of view of the task which this Court has to carry out, there is nothing in the transcript of Ms Suto's evidence insofar as it relates to Mr Cuzman, which is internally inconsistent, nor is there anything which she said which is obviously false. Where on two occasions she said something which she wished to change she immediately corrected herself. Given the position of advantage of the jury in relation to this evidence by Ms Suto, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt as to the reliability and truthfulness of her testimony in relation to Mr Cuzman. 100I do not accept the submission, on behalf of Mr Cuzman, that if the evidence of Ms Suto were accepted, it is insufficient to establish the elements of the offence in Count 2. That Mr Cuzman appeared to be angry when told the price of the package which was delivered allows an inference that he was aware of its contents. The fact that sometime thereafter the amount of money requested by Mr Magyari was handed over to Ms Suto by Mr Bucataru allows the inference that Mr Cuzman had communicated the price to Mr Bucataru and that they had agreed to pay it. 101It follows therefore, for the reasons I have set out, that this is not one of those cases where the potential untruthfulness and unreliability of a crucial Crown witness has so undermined the Crown case that the jury's verdict is unreasonable and is not supported by the evidence. The jury because of the strong warnings provided by his Honour, and because of the detailed challenges to the evidence of Ms Suto made by counsel for the applicants, were well aware of the need for them to scrutinise her evidence very carefully. This they clearly did as is indicated by their request for the transcript of her evidence shortly after the summing up concluded. Nevertheless, they were satisfied beyond reasonable doubt as to the guilt of the applicant. 102Mindful of the obligations of this Court pursuant to M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606 and SKA v The Queen [20-11] HCA 13; 243 CLR 400, I have perused the evidence so as to reach my own conclusions. While it is clear that Ms Suto was careful not to implicate herself in further criminal activities when giving her evidence, her performance under extensive cross-examination was robust and I am satisfied, allowing for the advantage of the jury in this matter, that it was open to the jury to find beyond reasonable doubt that the applicants were guilty of the offence in Count 2 of the indictment. 103A consequence of that conclusion is that there is no basis for setting aside the jury's verdict in relation to Count 4. It was accepted by the applicants that if the conviction for the offence in Count 1 was upheld (and by implication therefore a conviction of the offence in Count 2), the conviction for the offence in Count 4 should also be upheld. No submissions were made to the effect that there were any additional elements in Count 4 which had not been established in the trial. 104The offence in Count 2 is clearly less serious than that in Count 1. Because the convictions of the applicants for the offence in Count 1 must be set aside, it is necessary that the applicants be re-sentenced for the lesser offence in Count 2. This will inevitably result in a lower sentence. 105For a number of reasons it is not appropriate for this Court to re-sentence the applicants. No submissions have been made to this Court in relation to re-sentencing in respect of Count 2. This Court has no information as to the present circumstances of the applicants which would be relevant on re-sentencing (Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [124]). In those circumstances, the most appropriate course is for the matter to be remitted to the District Court for re-sentence in relation to Count 2 and Count 4. 106That said it is appropriate to draw attention to the fact that the maximum penalty to which this Court's conviction of the applicants on the second count renders them liable is imprisonment for 15 years. The jury's verdict carries with it the implication that the jury accepted that the amount paid by the applicants was $206,000.00 for whatever quantity of whatever drug they were knowingly involved with the supply of. While any new sentences may be expected to be less than the terms imposed by Norrish DCJ for the offences the subject of the first counts, those new sentences should reflect the jury's conclusion to which I have referred. The question of whether bail should be granted pending re-sentence is a matter for the District Court. 107The orders which I propose are as follows: Christian Cuzman (1)The application for leave to appeal against conviction in respect of Count 1 on the indictment is allowed and the verdict of guilty in respect of that offence entered 23 October 2012 is set aside. (2)In lieu thereof Christian Cuzman is convicted of the offence in Count 2 on the indictment. (3)The conviction of the offence in Count 4 on the indictment is confirmed. (4)The sentence imposed by Judge Norrish QC on 29 November 2012 is quashed. (5)The proceedings are remitted to the District Court so that Christian Cuzman can be re-sentenced for the offences in Counts 2 and 4. Georghe Bucataru (1)The application for leave to appeal against conviction in respect of Count 1 on the indictment is allowed and the verdict of guilty in respect of that offence entered 23 October 2012 is set aside. (2)In lieu thereof Georghe Bucataru is convicted of the offence in Count 2 on the indictment. (3)The conviction of the offence in Count 4 on the indictment is confirmed. (4)The sentence imposed by Judge Norrish QC on 29 November 2012 is quashed. (5)The proceedings are remitted to the District Court so that Georghe Bucataru can be re-sentenced for the offences in Counts 2 and 4. 108GARLING J: I agree with Hoeben CJ at CL. 109RS HULME AJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons. ********** 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. Decision last updated: 17 October 2014