R v Kovacs [2000] NSWCCA 74 (31 March 2000)

Last Updated: 27 October 2000

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Kovacs [2000] NSWCCA 74 revised - 1/05/2000

FILE NUMBER(S):

60738/98

60817/98

HEARING DATE(S): 13 August 1999

JUDGMENT DATE: 31/03/2000

PARTIES:

REGINA - Respondent/Appellant

Lajos KOVACS - Appellant/Respondent

JUDGMENT OF: Beazley JA Simpson J McInerney AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0354

LOWER COURT JUDICIAL OFFICER: Herron DCJ

COUNSEL:

Ms E L Fullerton SC - Appellant/Respondent

J V Agius SC - Crown Respondent/Appellant

SOLICITORS:

Peter Ash & Associates - Appellant/Respondent

Commonwealth Director of Public Prosecutions - Respondent/Appellant

CATCHWORDS:

LEGISLATION CITED:

Customs Act 1904 (Cth)

Proceeds of Crime Act 1987

Evidence Act 1995

DECISION:

(i) Appeal against conviction dismissed

(ii) Crown appeal allowed, sentence imposed quashed

(iii) Appellant sentenced to imprisonment for fifteen years with a non parole period of ten years.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60738/98

60817/98

BEAZLEY JA

SIMPSON J

McINERNEY AJ

Friday 31 March 2000

REGINA v Lajoz KOVACS

Judgment

1 BEAZLEY JA: I agree with Simpson J

SIMPSON J :

2 On 2 October 1998, following a jury trial in the District Court, the appellant was convicted on a charge that, in circumstances of aggravation, on 8 December 1997, without reasonable excuse he attempted to obtain possession of not less than the commercial quantity of a prohibited import (heroin), a charge brought under s 233B of the Customs Act 1904 (Cth). The aggravating circumstance was that he had previously (in 1993) been convicted on a charge of importing not less than the traffickable quantity of the same drug. The maximum sentence applicable to the offence is life imprisonment. Judge Herron sentenced the appellant to imprisonment for thirteen years commencing on 8 February 1998 and specified a non parole period of nine years.

3 The appellant appeals against the conviction. The Crown appeals against the sentence, asserting that it is manifestly inadequate.

4 The Crown case can be stated as follows. On Friday 5 December 1997 a Pakistani national, Naeem Raza Hashmi, arrived at Sydney Airport from Pakistan. Strapped to his body were several packages of heroin. The total gross weight of heroin was 2.5 kilograms. The total pure weight was 1.881 kilograms. The heroin was quickly discovered by Customs agents and Hashmi agreed to co-operate with Australian Federal Police in the pursuit of those to whom he was to deliver the drug.

5 According to the arrangements he had made for delivery of the heroin, Hashmi was to be met at the airport by somebody whose identity he did not know, who would introduce himself by saying "I am the brother of Shaji". Because of Hashmi's apprehension and examination at the airport this meeting did not take place. He was therefore taken by an Australian Federal Police officer to a room in a hotel in the city. During the weekend of 6 and 7 December he was contacted by and made contact with various people in Pakistan. The plan made by police and Hashmi was for Hashmi, through his contacts in Pakistan, to make arrangements for the heroin to be collected from the hotel with a view to the apprehension of those involved at the Australian end of the enterprise. Listening devices were placed in the hotel room. Australian Federal Police officers took the adjoining room. Police removed the heroin from the packages and replaced it with an inert substance.

6 By Monday 8 December no arrangements had been made for the collection of the heroin and police were in the process of terminating the exercise and checking out of the hotel. As they were doing so a man telephoned, asking for Hashmi. He was told to call back later and Hashmi was reinstalled in the hotel room. At 10.55 am the appellant telephoned and arranged to meet Hashmi in the hotel room about an hour later. He arrived at 11.55 am, having driven from Minto, and was met by Hashmi in the foyer under police surveillance. He introduced himself as a friend of Mr Sardiq. Sardiq, on the Crown case, was the Pakistani organiser of the importation. Hashmi returned to the hotel room accompanied by the appellant. The appellant was in possession of two mobile phones, one of which he used to ring somebody in Pakistan. The two men were alone in the room. The appellant handed Hashmi a bag containing $5,000. Hashmi slid a chair from under a table, picked up a plastic bag containing the packages of heroin substitute, and handed it to the appellant. As he did so he said: "This is the heroin, I have not weighed it". The appellant went to the door and was arrested as he left the room, in possession of the bag containing the heroin substitute. Although listening devices were operating in the room the recordings produced were of poor quality. Transcripts of so much of the conversation as could be discerned were produced. The word "heroin" could not be heard in any of the recordings. [The conversations were in the Punjabi language, and these references are to the Punjabi word for heroin and to translations of the original tape recordings].

7 On his arrest the appellant was searched. He had $3,000 in cash in his possession. He participated in an interview with police which was electronically recorded. In this interview he gave his only explanation for his presence at the hotel. That explanation was that a Mr Elahi, a Pakistani friend, had asked him to go to the hotel to assist another friend who was stranded without funds, and to transport him to the airport. The money had been delivered to him at his place of work that morning. His instructions from Mr Elahi were to give the envelope containing $5,000 to Hashmi at the hotel, and the envelope containing $3,000 to him at the airport. He said that Hashmi did not want to be taken to the airport and that explained why he was still in possession of the $3,000 when he was arrested. He had agreed to help at Mr Elahi's request because asked to do so by a friend but was unenthusiastic about rendering assistance. He denied knowledge of the contents of the bag and denied any intention of collecting, or attempting to collect, heroin.

8 An important circumstances in the Crown case was that at the time the appellant was a serving prisoner; he was at liberty under a work release programme which subjected him to certain strict conditions. The conditions prohibited him from absenting himself from his workplace, even for the purposes of his work duties, without permission from his work release supervisor; from driving any vehicle; or from having in his possession a mobile phone. Breach of the conditions, depending on the seriousness of the breach, could have resulted in removal of the appellant from the work release programme, and could have resulted in re-classification and transfer to a more secure prison environment. This was an important circumstance because the Crown relied upon it to establish the unlikelihood of the appellant's putting at risk his privileged status for anything less than an important or significant matter. Helping a person with whom he was unacquainted even at the request of a friend did not qualify as such an important or significant matter. Taking possession of heroin may have done so.

9 Federal Agent Clucas was one of the police officers who arrested the appellant at the door of the hotel room. He gave evidence that while the door of the room was closed he could hear muffled voices, and that when the door was opened he heard the word "heroin", although he was unable to be more specific as to which of the two men in the room used the word, or the context in which it was spoken.

10 Two other factual matters should be mentioned in this recitation. As will be apparent a long period elapsed between the time when Hashmi was taken to the hotel room and the time of the appellant's arrival. Indeed, the Federal Police had given up hope of any contact being made by Hashmi and were in the process of terminating the operation when the appellant arrived. No doubt the level of tension was high. On the Sunday evening the officer in charge, Federal Agent Elliott, became angry with Hashmi, accusing him of not telling the truth. The significance of this will become apparent below. The second matter concerns a sum of $US1,500 that was in Hashmi's possession on his arrest. It was understood that this was money that was given to Hashmi by the person in Pakistan who recruited him into the enterprise and was accordingly tainted as the proceeds of criminality, and would ordinarily be forfeited to the Crown under the Proceeds of Crime Act 1987. Federal Agent Elliott released the money to Hashmi. In cross-examination he gave as the explanation that Hashmi had no family in Australia and was quite alone here, and that "he required money to console his family" in Pakistan. The significance of this evidence, too, will be dealt with in due course.

11 The grounds of appeal are pleaded as follows:

1. The trial judge erred in permitting the Crown to prove that the appellant was a sentenced prisoner as at the date of the alleged offence.

2. The trial judge erred in holding that the fact that the appellant was a sentenced prisoner was not tendency evidence.

3. The trial judge erred when exercising the discretion pursuant to s 137 of the Evidence Act by taking into account an irrelevant consideration and failing to give adequate weight to the material considerations.

4. The trial judge erred in refusing to fully and adequately direct the jury in accordance with s 165(2) of the Evidence Act.

5. The trial judge erred in commenting upon the appellant's failure to give evidence in accordance with s 20 of the Evidence Act.

6. The trial judge erred in refusing to inform the jury that they should not regard their deliberations as subject to any time constraints notwithstanding that they had been required to remain in court during the scheduled lunch hour between 1 pm and 2 pm whilst the trial judge delivered his summing-up and notwithstanding the fact that they were asked to retire and consider their verdict at 2 pm on a Friday before a long weekend at a time when the trial judge had previously indicated that he would not require the jury to sit until the following Wednesday.

12 It will be necessary, when dealing with the individual grounds of appeal, to expand on the facts outlined above.

Grounds 1, 2 and 3

13 These grounds all concern the admission of the evidence of the appellant's status as a serving prisoner at the time of the events in question. During the course of the trial, objection was taken by counsel for the appellant to the admission of that evidence, on the basis, firstly, that the evidence, properly analysed, was tendency evidence and therefore inadmissible, and, secondly, that even if it were admissible, the proper exercise of the discretion conferred by s 137 of the Evidence Act 1995 required its exclusion.

14 The trial judge rejected the contention that the evidence was tendency evidence. He said:

"Ms Fullerton put to me that this evidence was tendency evidence and was inadmissible under s 97 of the Evidence Act. It seems to me that it is not tendency evidence at all. It is merely evidence of a circumstance which the prosecution would seek to put to the jury to meet, as it were, the defendant's exculpatory version."

15 In this Court the argument was maintained. Logically, the first question therefore is whether the evidence is properly characterised as tendency evidence at all. I have concluded that it is not. In order to reach this conclusion it is not necessary to go beyond the plain words of the Evidence Act itself. S 97 is the section concerned with what the Evidence Act calls "the tendency rule". Sub s (1) provides:

"(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."

16 S101 has particular application to tendency evidence adduced in criminal proceedings: it provides:

Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

17 "Tendency evidence" is defined in the Dictionary to the Act as:

"Evidence of a kind referred to in s 97(1) that a party seeks to have adduced for the purpose referred to in that section" (emphasis added)

18 One thing was quite clear; the evidence was not tendered by the prosecution for the purpose of proving that the appellant had a tendency to act in any particular way or to have any particular state of mind. It may be that one side effect of the admission of the evidence was to prove that the appellant had a tendency to act in a criminal way, but that was not the purpose for which the evidence was adduced, and the evidence can not therefore properly be characterised as tendency evidence. It was therefore unnecessary for the judge to consider whether it was inadmissible under s 97, or by the application of the more rigorous test provided for in s 101.

19 It was, however, necessary to consider whether the evidence should have been excluded in the exercise of the discretion conferred by s 137 of the Evidence Act. By that section, in a criminal proceeding, the court is obliged to exclude prosecution evidence the probative value of which is outweighed by the danger of unfair prejudice to the accused. His Honour held (correctly, in my opinion) that the evidence had considerable probative value. That was because it cast into relief the innocent explanation for his presence at the hotel proffered by the appellant when interviewed. On the other hand, it is equally plain that the evidence had the capacity to occasion considerable prejudice to the appellant. The substance of the complaint made about the approach his Honour took lies in a passage in his reasons for admitting the evidence in which he said:

"It seems to me that I must put in balance the concerns of the community to see that persons who commit serious offences are brought to justice ..."

This, it was contended on behalf of the appellant, was an irrelevant consideration.

20 And, it seems, it was one to which his Honour gave considerable weight. He went on to say:

"...but, in any event, it seems to me that having regard to that matter, in particular, it could not be said that the receipt of this evidence would be unfair in the relevant sense..."

21 Recognition of the public interest in the conviction of those who commit crimes as a factor in some questions concerning the admission (as distinct from admissibility) of evidence dates back at least to 1970: R v Ireland [1970] HCA 21; (1970) 126 CLR 321, when Barwick CJ (with whom all other members of the court agreed) said:

"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. ...On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Where such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion." (pp 334 - 335, emphasis added.)

22 That recognition has continued: see, for example, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 pp 64 - 65; R v Ridgeway [1995] HCA 66; (1995) 184 CLR 19, p 32; R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159, p176.

23 It may be that his Honour had these references in mind when he made the remarks of which complaint is now made. In each of the cases mentioned, however, the question at issue involved the exercise of the discretion, in a criminal case, to exclude evidence unlawfully or improperly obtained.

24 In Bunning v Cross, at p 64, Barwick CJ drew a distinction between that discretion and the discretion which existed at common law to exclude evidence the probative value of which was outweighed by its prejudicial effect. It has never, to my knowledge, been suggested that the public interest in the apprehension and conviction of the criminal was a relevant factor in the exercise of this discretion. The latter, common law, discretion is now overtaken by s 137. But s 137 is not couched in the language of discretion. It requires an evaluative process, but the evaluation is solely as to the relative effects of the proposed evidence - the probative value (to the prosecution case) relative to the danger of unfair prejudice to the defendant. Where that evaluation results in a conclusion that the probative value is outweighed by the danger of unfair prejudice the section dictates - ("must refuse to admit") - exclusion of the evidence.

25 The section thus leaves no room for the intrusion of considerations of the public interest in the conviction of those who commit crimes. To take that into account was to take into account a consideration irrelevant to the task imposed by the section.

26 There are two other reasons why it was inappropriate to take the approach that the judge did. Firstly, just as there is a legitimate public interest in the conviction of the guilty, so also is there an equal public interest in ensuring that accused persons are not wrongly convicted: see, for example, the passage extracted above from Ireland. The two considerations precisely balance one another. If it were legitimate to take into account the public interest in the conviction of the guilty, it was necessary also to take into account the equal public interest in avoiding wrongful convictions. The one cancels out the other.

27 Finally, while I doubt that it was intended in this way, the observation made by his Honour is apt to convey a presumption of guilt, or at least to undermine the presumption of innocence.

28 I therefore accept the argument advanced on behalf of the appellant that an extraneous consideration was intruded into the decision as to the admission of the evidence. That does not necessarily require the conclusion that the evidence was wrongly admitted. It required careful independent examination of the evidence, its probative value, its prejudicial effect, and the direction given to the jury concerning the use that could be made of it.

29 The ultimate question is whether any miscarriage of justice has been occasioned by the admission of the evidence. In this regard it is appropriate to look to what was said to the jury about the appellant's status as a prisoner. It might here be noted that the jury were never told anything of the nature of the offence for which the appellant was serving a prison term. His Honour said, in summing up:

"So members of the jury, as I understand it, the only relevance of this defendant being on a work programme is that you would not accept that he would run the risk of being in breach of the conditions of his work release programme to come in for the purpose for which he said he came in. The prosecution puts to you he would come in perhaps to obtain valuable heroin. That is as I understand it.

So that's the only relevance of this. You are not concerned with why he was in this establishment. Why he was on work release etcetera, and that's the only relevance of that particular matter. Members of the jury, of course I suppose apart from Mr Hashmi has said, the prosecution relies on circumstances. The circumstances of the defendant being on work release and coming into the city. The circumstance that he was in fact carrying the bag when he emerged from the door of the hotel."

30 The probative value of the evidence was such that the danger of unfair prejudice to the appellant had to be very significant indeed to outweigh that value. In those circumstances, in my opinion, it was inevitable that, excluding the irrelevant consideration, the evidence would be admitted, subject to appropriate direction. One way of controlling and limiting any prejudice is by appropriate directions. A relevant consideration in the evaluation of the relative probative value and prejudicial impact of the evidence is the measures available to ameliorate any prejudice. Directions are among such measures. In my opinion the direction given was straightforward, to the point, and correct. The criminal justice system operates on the basis that juries accept and apply directions they are given: R v Lansdell, unreported NSW CCA, 22 May 1995. There is no reason to think that the jury disregarded the direction they were given. Notwithstanding the error in approach, I am therefore satisfied that the evidence was correctly admitted and that the correct approach was taken to ameliorating its prejudicial effect. No miscarriage of justice resulted.

31 Accordingly, I would reject all grounds concerning the admission of the evidence of the appellant's custodial circumstances at the time of the events the subject of the charge.

32 Ground 4 is concerned with a direction given under s 165(2) of the Evidence Act in relation to Hashmi's position as an accomplice. The direction that was given was in the following terms:

"Well, members of the jury, Mr Hashmi, I must tell you right at the beginning, must be taken as being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to these proceedings and I must therefore warn you that his evidence may be unreliable, and that there is a need for caution to be exercised by you in determining whether you accept his evidence and what weight you should give to his evidence. His evidence may be unreliable as it is suggested, and you may think, that he had a self-interest, a real interest in giving assistance to the police, and particularly in implicating others in this crime."

33 S 165 requires a direction to be given, where requested, in relation to "evidence of a kind that may be unreliable". S 165(1)(d) specifies the evidence of a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding as one kind of evidence that may be unreliable. Where such a warning is to be given, the judge is required to inform the jury of matters that may cause it to be unreliable. The criticism that is made of the direction given is that it omitted reference to two matters of fact. The first of these was identified as the evidence of aggression directed towards Hashmi late on the Sunday evening by Federal Agent Elliott, when it appeared that the operation would be unsuccessful. The "aggression" referred to concerned the incident when Elliott became angry with Hashmi and accused him of not telling the truth. Hashmi said that by the Sunday evening he was disturbed because of the lack of contact with any person to whom he was to deliver the drugs. He said that he felt humiliated, insulted and degraded, but, as I read the evidence, this did not specifically relate to the apparently brief incident in which Elliott expressed anger. It was suggested that these circumstances were circumstances from which the jury might have inferred that Hashmi was not telling the truth, in order to improve his relationship with the police. I do not accept the argument. The incident was, on the evidence, short lived and unrelated to what Hashmi subsequently said about his conversation with the appellant and was superseded by events that immediately followed. It did not require specific mention.

34 The second matter to which it is contended specific reference should have been made in the s 165 direction was the evidence that the money Hashmi had been carrying had been released to him by police. This, the argument ran, gave him an incentive to embellish his evidence in order to assist police. While I do not accept that the evidence of so-called "aggression" is a matter to which specific reference should have been made, I take a different view in relation to the evidence of the release of money. The release of money is in a different category and was something that should properly have been put to the jury as a matter affecting Hashmi's credibility. It showed that he had reason for gratitude to the police, and was therefore capable of being taken into account on the question of his credibility.

35 Counsel for the appellant, who also appeared for him at trial, acknowledged that she had addressed the jury in relation to these matters. The issue was therefore clearly before the jury. While it would have been preferable to have the weight of judicial authority added to the submissions of counsel, I am not satisfied that the absence of specific reference caused any miscarriage of justice. I would reject this ground of appeal.

36 Ground 5 concerns a direction given to the jury on the appellant's failure to give evidence in the trial. The direction the judge gave was in the following terms:

"Members of the jury, the defendant did not give evidence and I must tell you that the election of the defendant not to give evidence cannot in any way be treated as an admission of guilt. The reason for this is obvious, namely, that if this were not so, his legal right to silence would be denied. There is no onus or obligation on the defendant to prove anything and he is under no obligation to give evidence and you as a jury could not infer guilt from the defendant's failure to give evidence. From the beginning to the end as I've already said, the prosecution has the onus of proving the defendant's guilt, beyond a reasonable doubt.

And members of the jury I must also warn you that the defendant may have reasons unknown to you for deciding not to give evidence, other than that such evidence would not assist his case and you must bear this in mind in determining whether the prosecution's case is strengthened by the defendant's electing not to give evidence. He may fear that he will be confused by cross-examination or he (may) simply be content to rely upon any weaknesses which exist in the Crown case. There are no doubt other valid reasons, you must not speculate why the defendant has not given evidence. But members of the jury, I must tell you that the records of interview which are in evidence, are evidence of the facts stated in them. The questions put by the police officers and the answers given by the defendant, are evidence in the case and the records of interview are evidence of the truth of the facts stated in favour of the defendant in them. But I tell you that the statements of the defendant in those records of interview remain unsworn and untested by cross-examination."

37 The direction was given when the law concerning comment that might be made by a trial judge in relation to an accused person who does not give evidence was as stated in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 and R v OGD (1997) 45 NSWLR 744. The ground of appeal argued was that (contrary to the view apparently taken by the judge) nothing in those cases required a comment on the appellant's absence from the witness box, and that, in any event, the direction given was unfair in its references to the appellant's explanations to police when interviewed, and the fact that it was not subject to cross-examination. Since the matter was argued the High Court has delivered judgment in RPS v R [2000] HCA 3, unreported, 3 February 2000.

38 S 20 of the Evidence Act expressly permits a comment to be made in a criminal proceeding for an indictable offence, but prohibits any suggestion by a judge that the accused failed to give evidence because he/she was, or believed that he/she was, guilty of the offence charged.

39 Counsel at trial argued that such a direction should not be given. The trial judge said:

"It seems to me that I should make such a comment ..."

40 He then relied upon the decision in OGD as support for that conclusion. In particular he referred to a single sentence in OGD which is in the following terms:

"Many lay people would readily treat an accused's silence as an admission of guilt unless warned against doing so."

41 I accept the submission made on behalf of the appellant that there is nothing in OGD that required that a direction be given. However, it was not inappropriate to give a direction, and the substantive issue concerns the terms in which the direction was couched. In this respect the High Court's decision in RPS provides guidance. There were five elements in the direction in that case that drew criticism from the High Court. These included directions there given to the effect that the appellant's election not to give evidence could be taken into account in judging the value of, or the weight of, the prosecution's evidence; the readiness or confidence with which they could accept the Crown evidence; that if it was reasonable to expect some denial or contradiction of the prosecution evidence the jury were entitled to take the view that the appellant's evidence would not have assisted him; and that the absence of evidence from the accused meant that the version of events put in cross-examination of the prosecution witnesses was not supported by evidence. None of these is a feature of the direction here in contention. The High Court turned its attention to s 20 of the Evidence Act. The majority said this:

"Section 20(2) should be given no narrow construction inviting the drawing of fine distinctions. In particular, the prohibition contained in the second sentence (forbidding the judge making a comment that suggests the accused failed to give evidence because he or she was, or believed that he or she was, guilty) must be given full operation. In that respect this prohibition should not be treated differently from the prohibition (still operative in some Australian jurisdictions) against a judge making any comment on the failure of the accused to give evidence. To adopt and adapt what was said by Isaacs J in Bataillard v The King [(1907) [1907] HCA 17; 4 CLR 1282 at 1291], if comment is made about the accused not having given evidence it must not make any `reference, direct or indirect, and either by express words or the most subtle illusion' suggesting that the accused did not give evidence because he or she was, or believed that he or she was, guilty. It has been said that the line between what is permissible and what is not, under provisions which prohibit any comment on a failure to give evidence, may be a fine one. Whether or not that is so, s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation." (emphasis in original; internal references omitted)

42 I am able to discern nothing in the direction given by Judge Herron that transgresses the prohibition contained in s 20 or the principles stated in RPS. The jury was specifically told that the appellant's election not to give evidence could not in any way be treated as an admission of guilt; that he may have had reasons unknown to the jury for declining to give evidence, other than that such evidence would not assist his case; and they were warned not to speculate about why he had not given evidence.

43 The appellant obtained the advantage of having his account, contained in his answers when interviewed, put before the jury as evidence of the truth of his assertions and it was, in my opinion, valid for the judge to point out that the contents of the interviews were unsworn and untested by cross-examination.

44 Because of the potential impact of the decision in RPS on this ground of appeal, counsel were invited to provide additional submissions in writing relevant to this aspect. Counsel for the appellant submitted that the references to the appellant's failure to submit himself to a sworn account of the explanation he had given in the record of interview, and therefore to submit himself to cross-examination, constituted unfair comment and undermined his right to elect not to give evidence. In a different context this argument might have some merit; but the direction has to be looked at as a whole and, in my view, the overwhelming tenor was that the jury should bear in mind the possible legitimate reasons for the appellant's absence from the witness box. Criticism was also made of the reference, in the second paragraph extracted, to a possible reason for not giving evidence being that doing so would not "assist his case". Again, when seen in the context of the entire direction, the criticism loses any force it may otherwise have. In my opinion no valid criticism can be made of the direction.

45 I would reject this ground of appeal.

46 The final ground of appeal concerned the rather abrupt end to which the trial came. The trial commenced on Monday 28 September 1998. The evidence, and the prosecution address, concluded on the afternoon of Thursday 1 October. The following weekend was a long weekend on the Saturday of which a Federal election was to take place. One member of the jury had advised the court of a commitment on Tuesday 6 October and it had already been decided that, if the trial had not concluded, the court would not sit on that day. The trial judge had a commitment to a sentence proceeding at 2 pm on Friday 2 October.

47 Counsel for the appellant on more than one occasion asked the judge not to commence summing up before the court could reconvene after the weekend on Wednesday 7 October. Initially no firm decision was made on this request. But as events transpired, the Crown address concluded on the Thursday afternoon, and counsel for the appellant concluded her address at about midday on the Friday. The judge then began his summing-up and continued until 1.46 pm, without taking the usual break for lunch. Counsel put to the judge that this process imposed undue pressure upon the jury.

48 These facts were stated in the written submissions filed on behalf of the appellant. No oral argument was put in support of this ground. I see no reason to conclude that the jury felt in any way under pressure to arrive at a verdict. The jury had adequate time for consideration of the very narrow issues that arose and the timing of their verdict does not suggest that they did not apply their minds diligently to the task they had in hand. There was really only one issue they had to decide - did the appellant know what was in the package? As the judge pointed out in sentencing the appellant, the account he gave was not one they might find readily acceptable, even to the point of raising a reasonable doubt about the Crown case.

49 I would therefore reject this ground of appeal. In my opinion the appeal against conviction should be dismissed.

The Crown appeal against sentence.

50 The appellant was sentenced, and the appeal heard, before publication of the guideline judgment in R v Wong and Leung [1999] NSW CCA 420, unreported, 16 December 1999. Counsel were accordingly invited also to make written submission in this respect, and did so. As stated above the appellant was sentenced to imprisonment for thirteen years with a non parole period of nine years. The offence was an aggravated one, for the reason already mentioned, (that it was a second offence of the same kind), and also because it was committed while the appellant was serving his sentence, but having the benefit of pre-release work experience. It is difficult to imagine a more blatant form of aggravation. The offence for which he was serving the original sentence was importation of a traffickable quantity of heroin. The sentence then imposed was one of eight years with a non-parole period of five years.

51 The appellant (as I will continue to refer to him) was born on 18 October 1954 and was forty-four years of age at the time of sentence. He migrated to Australia from Germany in 1981. Very limited material was put before his Honour as to his subjective circumstances. Such material as was available seems to have been drawn from what had been put before the previous sentencing judge.

52 An important issue for determination concerned the appellant's role relative to that of Hashmi. Hashmi was sentenced to five years' imprisonment with a non-parole period of three years. However, of course, there were significant differences between his case and that of the appellant. Hashmi's sentence was specifically discounted by 50 percent by reason of the very substantial co-operation he had given and had promised to give in the prosecution of the appellant. Further, he was entitled to some discount for his plea of guilty, although this was limited by the circumstances in which he had been apprehended and the consequent strength of the Crown case. And it was accurate to categorise Hashmi as courier; I do not think it is appropriate so to characterise the appellant, and the sentencing judge took the same view. The appellant's role plainly was to take possession of the drug for the purpose of disseminating it into the community.

53 In Wong and Leung this Court promulgated guideline sentences intended to apply to couriers and person low in the hierarchy of an organisation importing heroin or cocaine. In the present case it is not possible on the evidence to determine the appellant's role, other than that it was not that of courier. He therefore cannot be treated as one of those for whom an increment should be applied by reason of his more significant role.

54 The guideline promulgated in relation to the importation of 1.1/2 to 3.1/3 kilograms of heroin is a head sentence of between eight and twelve years. Given the extraordinary feature of the circumstances in which the offence was committed, the appellant could not hope to have been sentenced other than substantially above this guideline. It was bad enough that this was a second offence of the same kind; that it was committed while on conditional release makes the offence much worse.

55 I have concluded that, specifically because of those two features, the sentence imposed was manifestly inadequate. I propose that the Crown appeal be allowed and the applicant be resentenced to imprisonment for fifteen years with a non parole period of ten years.

The orders I propose are: -

(i) the appeal against conviction be dismissed;

(ii) the Crown appeal be allowed, the sentence imposed be quashed;

(iii) the appellant be sentenced to imprisonment for fifteen years with a non parole period of ten years.

56 MCINERNEY AJ : I agree with Simpson J

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LAST UPDATED: 01/05/2000