R v Attallah [2005] NSWCCA 277 (25 August 2005)

CITATION: Regina v Attallah [2005] NSWCCA 277

FILE NUMBER(S):

2005/367

HEARING DATE(S): 16/06/05

JUDGMENT DATE: 25/08/2005

PARTIES:

Regina v Joseph ATTALLAH

JUDGMENT OF: James J Buddin J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0922

LOWER COURT JUDICIAL OFFICER: Backhouse DCJ

COUNSEL:

P Barrett - Crown

P Byrne SC/G Bashir - Appellant

SOLICITORS:

S Kavanagh - Crown

S O'Connor - Solicitor for Legal Aid - Appellant

CATCHWORDS:

CRIMINAL LAW - an offence of supplying not less than a large commercial quantity of heroin and an offence of supplying not less than a large commercial quantity of cocaine - CONVICTION APPEAL - whether trial proceedings miscarried through the re-examination of a witness who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant's family which had resulted in the death by shooting of a person - whether trial proceedings miscarried by reason of outbursts by the family of the appellant and the appellant himself on a number of occasions - whether the trial proceedings miscarried through the remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury - whether the directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate - whether directions given by the trial judge as to the potential unreliability of certain witnesses were adequate - SENTENCE APPEAL - life sentence - whether manifestly excessive

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act

Drug Misuse and Trafficking Act

Evidence Act

DECISION:

Appeal against conviction dismissed. Leave to appeal against sentences granted. Appeal against sentence allowed. Appellant re-sentenced to a term of imprisonment of twenty-four years with a non-parole period of eighteen years

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2005/367

JAMES J

BUDDIN J

ROTHMAN J

Thursday 25 August 2005

REGINA v Joseph ATTALLAH

Judgment

1 JAMES J: Joseph Attallah appealed against his conviction, after a trial in the District Court before her Honour Judge Backhouse QC and a jury, of an offence of supplying between 31 May 1999 and 11 April 2001 not less than a large commercial quantity of heroin and an offence of supplying, between the same dates, not less than a large commercial quantity of cocaine. In the event of this Court dismissing the appellant’s appeal against his convictions, he applies for leave to appeal against the sentences of imprisonment for life which her Honour imposed for both of the offences.

2 The trial in which the appellant was convicted was a joint trial of the appellant and an alleged co-offender Nabil Youssef Sabbagh, who was charged with the same two offences, subject to the qualification that the offences were alleged to have been committed by Sabbagh within a somewhat shorter period, between 31 May 1999 and 24 November 2000. Sabbagh was found guilty by the jury of the lesser offences of supplying not less than a commercial quantity, as distinct from not less than a large commercial quantity, of heroin and of cocaine. In the remarks Judge Backhouse made in sentencing the appellant her Honour said that the different verdicts returned by the jury for the appellant and Sabbagh were explicable on the basis that Sabbagh had been absent from the criminal enterprise of supplying drugs jointly carried on by the appellant and Sabbagh for a period of four months and Sabbagh had ceased participating in the criminal enterprise in November 2000. No appeal or application by Sabbagh was before this Court.

3 Supplying not less than a large commercial quantity of heroin or cocaine is an offence under s 25(2) and s 33(3)(a) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for life or a fine of 5,000 penalty units or both. Under the Drug Misuse and Trafficking Act a large commercial quantity for both heroin and cocaine is one kilogram.

The Crown Case at the Trial

4 The Crown case against the appellant at the trial can be briefly summarised as follows.

5 Between about May 1999 and about April 2001 the appellant conducted an unlicensed brothel known as Total Eternity Escorts at 2 Clements Avenue, Bankstown. For most of that period the appellant conducted the brothel as a joint enterprise with the co-accused Sabbagh. The appellant set up the brothel with the assistance of a woman who had had many years experience of prostitution and who, using the pseudonym Jackie Walsh, was the principal Crown witness at the trial.

6 Prostitutes were engaged to provide sexual services to clients of the brothel. Many, although not all, of these prostitutes were already addicted to prohibited drugs, particularly heroin. While the prostitutes were working at the brothel, the appellant regularly supplied them with small amounts of heroin and cocaine for immediate use. The appellant expected any woman who was working as a prostitute at the brothel to acquire all the drugs she used, exclusively from the appellant.

7 It would appear that the appellant acquired the drugs which he later supplied, from a woman living in a house in Greenacre. After acquiring the drugs, the appellant cut, weighed and packaged the drugs and then conveyed them to the brothel.

8 The appellant would usually attend at the brothel shortly before the evening shift for the prostitutes commenced at 6 pm. A number of the prostitutes were so addicted to drugs that they needed to use drugs in order to be capable of working at the brothel. Each evening the appellant allowed credit on a first purchase of drugs by a prostitute, because the prostitute, before beginning her shift, would not have any money to pay for drugs. This initial debt was repaid out of monies earned by the prostitute after she had commenced working. After the initial debt had been repaid, a prostitute would make further purchases of drugs during the night, the cost of the drugs being “subbed”, that is subtracted, from her earnings from prostitution.

9 At the brothel heroin was supplied in half weights, that is in quantities of half a gram, at a price of $150-$180. Cocaine was supplied in satchel bags at a price of $50 a deal. Generally drugs were supplied to a prostitute in the kitchen area of the brothel and were used by her in the laundry/toilet area of the brothel. Drug transactions were recorded by or on behalf of the appellant on the backs of business cards for the brothel and in timesheets showing the hours worked by the prostitutes, which were kept by the receptionist at the brothel.

10 Drugs were supplied to the users either by the appellant personally or by an elderly man Joseph Elkhoury, usually referred to in evidence at the trial as “Old Joe”, to whom the drugs had first been supplied by the appellant, and sometimes by other employees of the appellant to whom the drugs had been supplied by the appellant. During the night Elkhoury would supply drugs to the prostitutes and also to purchasers from the street, including street prostitutes. During the period within which the offences were committed a shelter was built for Elkhoury outside the front of the brothel from which he could sell drugs to purchasers from the street, while being protected from the weather.

11 In the morning the appellant would attend at the brothel and receive from Elkhoury the proceeds of sales of drugs made by Elkhoury. On occasions Elkhoury was required during the night to hand over for safe keeping to the receptionist of the brothel monies he had received from drug sales. During the night the appellant maintained telephone contact with Elkhoury. If Elkhoury ran short of drugs, the appellant would be notified and the appellant would attend the brothel with a further supply of drugs.

12 As will be apparent from what I have already said, it was not the Crown case that the appellant had suppled on a single occasion either a quantity of heroin or a quantity of cocaine which was not less than the large commercial quantity of one kilogram. It was the Crown case on the charges of supplying not less than a large commercial quantity of each drug that the appellant, either personally or through an agent, had regularly supplied small quantities of heroin and cocaine for use by the persons receiving the drugs and that the aggregate of the amounts supplied over the period alleged in the charges amounted to not less than a large commercial quantity.

13 At the trial Jackie Walsh and three other witnesses who had worked as prostitutes at the brothel and who were referred to at the trial by the pseudonyms Rebecca, Vanessa and Jade, gave evidence of the daily amounts of heroin and cocaine used by themselves and by other prostitutes working at the brothel.

14 Jackie Walsh also gave evidence that throughout the period from June 1999 to April 2001 the average daily takings from the sale of heroin and cocaine were at least $3,000, except that during the Olympic period in Sydney in September and October 2000 the average daily takings had been at least $7,000. Jackie Walsh also gave evidence about what proportion of the drugs sold had been heroin and what proportion of the drugs sold had been cocaine and what had been the prices charged for the heroin and cocaine supplied.

15 The witness Rebecca gave evidence that throughout the period from June 1999 to April 2001 the average daily takings from sales of heroin and cocaine had been at least $4,000, except that during the Olympic period in September and October 2000 the average daily takings had been at least $10,000. Rebecca, like Jackie Walsh, also gave evidence about what proportion of the drugs sold had been heroin and what proportion of the drugs sold had been cocaine and what had been the prices charged for the heroin and cocaine supplied.

16 At the trial a police officer Detective Griffin gave evidence that, on the basis of evidence given by Jackie Walsh and Rebecca and other evidence, he had made calculations of the total quantity and the total value of heroin and cocaine supplied between June 1999 and April 2001. On the basis of the evidence given by Jackie Walsh about the average daily takings, Detective Griffin calculated that the total quantity of heroin which had been supplied was 2.03125 kilograms, that the total quantity of cocaine which had been supplied was 7.0126 kilograms, that the total value of the heroin supplied was $602,350 and the total value of the cocaine supplied was $1,657,300. On the basis of the evidence given by Rebecca about the average daily takings, Detective Griffin calculated that the total quantity of heroin which had been supplied was 3.086 kilograms, that the total quantity of cocaine which had been supplied was 8.6408 kilograms, that the total value of heroin which had been supplied was $925,800 and that the total value of cocaine supplied was $2,160,200.

The Defence Case at the Trial

17 The appellant gave evidence at the trial. The co-accused Sabbagh did not give evidence.

18 In his evidence the appellant agreed that he had conducted a brothel but he denied that he had supplied any drugs at the brothel and asserted that, if any drugs had been supplied at the brothel, they had not been supplied by him or with his knowledge. He had been aware that some of the prostitutes were drug addicts and he had endeavoured to assist some of them to overcome their addiction.

Grounds of appeal against Conviction

19 The appellant relied on the following grounds of appeal against his convictions.

1. The trial proceedings miscarried through the re-examination of the witness Jackie Walsh, who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant’s family which had resulted in the death by shooting of a person named Victor Zaccak.

2. The trial proceedings miscarried by reason of aggressive and threatening outbursts having been made, initially by the family of the appellant T1397 – 1398 and later by the appellant himself on a number of occasions during the course of his evidence: see in particular T1897, T1907 and T1934. Although there were applications made for the jury to be discharged, this was not done and there were no appropriate directions given to the jury, warning them not to use the fact of these outbursts in a manner which was unfairly prejudicial to the appellant.

3. The trial proceedings miscarried through the intemperate and inflammatory remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury. These remarks were calculated to arouse prejudice against the appellant and sympathy for the witnesses who had given evidence against him.

4. The directions given by the trial judge on the requirement for proof of the element of quantity in the charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate.

5. The directions given by the trial judge as to the potential unreliability of certain witnesses called in the case for the Crown were generally inadequate to meet the circumstances of the case: s 165 Evidence Act 1995.

20 I will now consider these grounds of appeal

1. The trial proceedings miscarried through the re-examination of the witness Jackie Walsh, who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant’s family which had resulted in the death by shooting of a person named Victor Zaccak.

21 On 3 November 2000 a man named Victor Zaccak was shot and killed, while he was working in the office at the brothel, by a man named Michael Ellatter, who fired shots into the brothel from outside the brothel. Two days after the shooting of Victor Zaccak Jackie Walsh terminated her association with the brothel.

22 On 13 December 2000, that is within five to six weeks of the shooting, Jackie Walsh took part in a long electronically recorded interview by police. In this interview Jackie Walsh supplied a great deal of information to the police, including information about drugs being supplied at the brothel. However, she said that she had no actual knowledge that the appellant had supplied drugs.

23 Question and Answer 213 in the interview were in the following terms:-

“Q213. Now were you aware whether Joe Attallah at that time was supplying anyone with heroin or cocaine?
A. Not that I was aware, even if he was, I would never have known because basically he knew the reason I came back was that there was supposed to be nothing there”.

24 Questions and Answers 247and 248 were in the following terms:-

“Q247. Now, just in relation to Joe Attallah in the business, are you aware in any way that he was involved in selling drugs at those premises?
A. Had my suspicions but I’m, I’m not gonna say yes because I ...

Q248. You didn’t directly see him with drugs?
A. No”.

25 In the interview Jackie Walsh was asked whether, when she had returned to the brothel at the beginning of the year 2000, she had been using drugs and she replied “no” but that she had been on methadone (questions and answers 206, 207).

26 In this interview questions and answers 636-638, 653-655 and 666-669 were in the following terms:-

“Q636. Anyone that has fallen foul of Joe Attallah, you would say that he would bear a grudge?
A. Yes, definitely.

Q637. (...ind...)?
A. Definitely, which is why I said to you guys right from day one, I wasn’t concerned about giving evidence because of myself but I’m worried about my children.

Q638. Certainly.
A. Because I – well, I mean look that was family with that shooting of Victor, that was family for God’s sake over just an argument and Victor got killed so.

Q653. Now, in relation to Joe Attallah, have you any grievance with him at the moment?
A. Do I have any grievances with him?

Q654. Yes. I mean do you bear him any ill will, you know, like any sort of ...
A. No, I just don’t – I’m just worried, that’s all.

Q655. Yes. A. Concerned. But I don’t – it’s over, it’s finished, you know, I don’t believe a word he says and I don’t trust him. It’s that simple.

Q666. Yeah, ... is there anything you want to add? Like I’ve asked you a lot of questions, any you want to ask or any you want to add? ( ...ind...)
A. Only basically that I don’t want to have anything to do with Joe. I really don’t. I don’t trust him. He knows where my family live and I don’t trust him.

Q667. Okay. So you harbour some fear that he may ...
A. Very much so.

Q668. Alright.
A. ‘Cause he knows how much I know.

Q669. Yes.
A. And I’m probably one person that he – he will either think he’s safe or he will think, she’s walked away so I’m in trouble. And for him to make that comment that he thinks I set him up, he’s got me slotted already in his head”.

27 Jackie Walsh was interviewed again by police in an electronically recorded interview on 21 March 2001 and she made statements to the police on 9 April 2001, 27 June 2001 and 31 January 2002.

28 Jackie Walsh gave some evidence about the shooting of Zaccak in her evidence in chief. She said that she had been present at the brothel when the shooting occurred. Both of the accused had also been present. Shots were fired into the brothel from outside the building. After the shots were fired the co-accused Sabbagh ran up the hallway of the premises and went over the back fence.

29 Jackie Walsh gave evidence that the following evening there had been a meeting at the appellant’s premises at Padstow. At the meeting Jackie Walsh rebuked Sabbagh for having “taken off” after the shooting happened and having been concerned only for himself. The appellant then told Jackie Walsh that Sabbagh had been doing a job for the appellant and Sabbagh then said “I took the drugs for Joe over the fence, so there was nothing left”, that is to say Sabbagh had taken the drugs away from the premises, so that they would not be discovered by police investigating the shooting.

30 This evidence by Jackie Walsh about the shooting and what had happened after the shooting was led by the Crown for the purpose of incriminating both the appellant and Sabbagh in the supply of drugs at the brothel and was not objected to by either defence counsel.

31 It is necessary to refer to certain parts of the cross-examination of Jackie Walsh by counsel for the appellant at the trial.

32 At p577 line 52 to p578 line 42 of the transcript the following questions and answers occurred in the cross-examination of Jackie Walsh by counsel for the appellant at the trial.

“Q. They said to you, were you using drugs then and you said no, you were on methadone. Was that the truth?
A. Yes. Sorry, was I using drugs?

Q. Yes?
A. Yes I was using drugs. But yes I was also on methadone.

Q. So you were using methadone and heroin and cocaine at the same time?
A. Yes I was.

Q. But when the police said to you, so when you returned the beginning of this year were you using drugs again, and you said no?
A. It’s possible yes.

Q. So you lied to the police?
A. Yes.

Q. To protect yourself?
A. To protect my family.

Q. Weren’t you protecting yourself because you didn’t want to incriminate yourself--
A. No

Q. -- by admitting that you were using drugs?
A. No.

Q. How was it protecting your family to lie to the police about the fact that you were using drugs, didn’t your family know you were a drug addict?
A. Of course they did.

Q. So why did you need to keep that from your family?
A. What I wanted to – as far as protecting my family goes was the fact that I didn’t want to get into any trouble with Joe or anybody he was associated with, that’s why there was a lot of information kept from the police. I was concerned for my safety and my children’s safety.

Q. That answer is just a complete fabrication isn’t it?
A. No, it’s not.

Q. Because you would not incriminate Joe by admitting that when you came back from working on the street you were still using drugs?
A. Yes I would”.

33 At p589 line 7 to line 22 the following questions and answers occurred in the cross-examination of Jackie Walsh by counsel for the appellant at the trial:-

“Q. You’ve come to court and said, well I was involved in drug supply but Mr Attallah was the one behind everything?
A. That’s correct.

Q. I suggest that the lies you told the police were designed to protect yourself?
A. The lies that I told the police were designed to protect Mr Attallah and the story that we had concocted for the last five years and that ran hand in hand with what I told the police. I was also concerned about the welfare of my family at that stage, suffering from depression under medication, I wasn’t thinking very clearly, I was a complete mess and my concerns were to make sure my kids were okay and that I carried on with what I’d agreed with Joe from day one and that was not to give him up at that stage”.

34 Jackie Walsh was fairly extensively cross-examined by counsel for Sabbagh about her evidence given in her evidence in chief, that immediately after the shooting occurred she had seen Sabbagh and had seen him go over the back fence of the brothel premises. During this cross-examination evidence was given that Zaccak had died as a result of the shooting.

35 When the cross-examination of Jackie Walsh had almost been completed, there was extensive argument in the absence of the jury about what re-examination of Jackie Walsh should be permitted.

36 The Crown prosecutor made an application pursuant to s 108(3)(b) of the Evidence Act for leave to adduce evidence in the re-examination of Jackie Walsh of questions and answers 636-638, 653-655 and 666-669 of the interview of 13 December 2000.

37 The submissions made by the Crown prosecutor in support of the application can be briefly summarised as follows. In the interview of 13 December 2000 Jackie Walsh had not given any information incriminating the appellant in the supply of drugs at the brothel. However, in her evidence in chief at the trial Jackie Walsh had given a considerable amount of evidence incriminating the appellant in the supply of drugs at the brothel. During the cross-examination of Jackie Walsh by counsel for the appellant at p 578 of the transcript, after Jackie Walsh had said that in the interview of 13 December 2000 she had kept a lot of information from the police because she did not want to get into any trouble with the appellant and because of her concern for her safety and her children’s safety, counsel for the appellant had put to her that “that answer is just a complete fabrication”. It was submitted that the putting to the witness that the answer she had given had been a complete fabrication enabled the adducing of evidence in re-examination to restore her credit and that leave should be granted to adduce evidence in re-examination of answers Jackie Walsh had given when interviewed on 13 December 2000 in which she had asserted she was afraid of the appellant and, importantly, gave a reason why she had been afraid of the appellant.

38 It was submitted that Jackie Walsh’s assertion in cross-examination that she had kept a lot of information from the police when she was interviewed on 13 December 2000, because of her concern for the safety of herself and her children, would be likely to be accorded much less weight by the jury, in the absence of some explanation from her of why she had been afraid of the appellant. The explanation she had given in the interview on 13 December 2000 would carry further weight, because it was an explanation she had given in the very same interview in which she had refrained from giving information incriminating the appellant in the supply of drugs. That the shooting, which had taken place only a few weeks earlier, had had a profound effect on her would be confirmed by further evidence from Jackie Walsh that Zaccak had been a very close friend of hers and had actually died in her arms.

39 The Crown prosecutor acknowledged that, as the application was an application for leave, it would be necessary for the Court to take into account the matters listed in subs (2) of s 192 of the Evidence Act and the Crown prosecutor made submissions about each of these matters.

40 The Crown prosecutor accepted that, if the evidence was admitted and, particularly, if evidence of question and answer 638 was admitted, the appellant would suffer some prejudice. However, the Crown prosecutor submitted that there was already evidence before the jury of the shooting and killing of Zaccak at the appellant’s brothel and, indeed, in the absence of further evidence, the jury might speculate that the appellant himself might have been the shooter.

41 The Crown prosecutor said that the evidence would be admitted only for the limited purpose of showing the state of mind of Jackie Walsh at the time she was interviewed on 13 December 2000, her state of mind explaining why in that interview she had not given any information incriminating the appellant.

42 In the argument on the application counsel for the appellant at the trial submitted that the Crown had exaggerated the extent to which counsel for the appellant had suggested in cross-examination of Jackie Walsh that her evidence had been fabricated. Counsel submitted that at p578 of the transcript the only answer by Jackie Walsh which counsel had suggested was a fabrication was an answer to the effect that in the interview of 13 December 2000 she had not admitted to police that she had been using drugs when she returned to the brothel, because of her concern for her safety and the safety of her children. Counsel submitted that he had not put to Jackie Walsh in cross-examination that the whole of her evidence had been fabricated or that she did not genuinely have any fear or that any fear that she might have had had been groundless.

43 Counsel for the appellant at the trial submitted that, in any event, the proposed re-examination, which would connect the appellant and a murderous shooter as being members of the same family, would be so prejudicial that it should be excluded pursuant to s 137 of the Evidence Act.

44 During the argument on the Crown prosecutor’s application the trial judge made a number of remarks, which were not withdrawn or qualified by her in any later remarks and which I consider can properly be taken as expressing conclusions which the trial judge had reached.

45 Her Honour considered that counsel for the appellant in his cross-examination of Jackie Walsh at pp 577 and 578 of the transcript had gone beyond merely putting to the witness that one piece only of her evidence had been fabricated. Her Honour said ”I think it’s opening up the whole thing, Mr Stewart really”. At p 578 of the transcript the answer that counsel for the appellant had suggested was a complete fabrication was an answer by Jackie Walsh which included a reference by her to “a lot of information (being) kept from the police”. At p 589 of the transcript it was put to the witness that the “lies” (in the plural) she had told the police were designed to protect herself.

46 Her Honour remarked during the argument that the proposed re-examination would have probative value, as showing some basis for the fear Jackie Walsh asserted she had felt.

47 Her Honour said “it seems to me that the most controversial (part) is... prejudice to (the appellant), if I were to allow re-examination” (about question and answer 638).

48 After an adjournment the trial judge gave a judgment in which she granted the Crown’s application under s 108(3)(b) of the Evidence Act for leave to re-examine Jackie Walsh on her answers to questions 636 to 638, 653 to 655 and 666 to 669 of the interview of 13 December 2000. Her Honour noted a concession by the Crown that the words “anyone that has fallen foul of Joe Attallah” should be omitted from question 636.

49 In her judgment her Honour noted that the Crown had based its application on counsel for the appellant at the trial having specifically put to Jackie Walsh in cross-examination at p 578 of the transcript that an answer she had just given was a complete fabrication.

50 In her judgment her Honour said that she had considered the matters put on behalf of the Crown and the matters put by defence counsel and that she had also considered the matters required to be considered under “s 92” (clearly s 192) of the Evidence Act.

51 At the end of her judgment her Honour noted that a submission had been made by counsel for the appellant at the trial that evidence of the questions and answers, including question and answer 638, should be excluded under s 137 of the Evidence Act. Her Honour said that she was not satisfied that the probative value of that evidence was outweighed by the danger of unfair prejudice to the appellant.

52 In her judgment her Honour did not otherwise give any reasons for her decision to allow the Crown prosecutor’s application.

53 When Jackie Walsh was re-examined by the Crown, the Crown obtained confirmation from Jackie Walsh that in her answers in the interview of 13 December 2000 she had avoided incriminating the appellant in the supply of drugs at the brothel. Jackie Walsh was then referred to the evidence she had given in cross-examination at p 578 and p 589 of the transcript. Counsel then read questions and answers 636 to 638 of the interview (omitting from 636 the words “anyone who has fallen foul of Joe Attallah”) and Jackie Walsh confirmed that that was what she had told the police. The Crown prosecutor said that in her answer to question 638 she had referred to “family” and the Crown prosecutor asked whose family she had been referring to. Objection was taken to this question by counsel for the appellant at the trial but the objection was overruled.

54 The Crown prosecutor repeated questions and answers 636 to 638 in the interview and the question he had asked Jackie Walsh which had been objected to. Jackie Walsh gave evidence that the family she had been referring to in her answer to question 638 was the appellant’s family, that the man who had shot Zaccak was Michael Ellatter, that Ellatter had fired ten shots through the front window of the brothel, that Zaccak who had happened to be in the office of the brothel was shot and that Ellatter was the appellant’s god-son.

55 The Crown prosecutor read questions and answers 653 to 655 and 666 to 669 of the interview of 13 December 2000 and Jackie Walsh confirmed that they had been questions and answers in the interview.

56 Jackie Walsh gave further evidence that Zaccak had been a very close friend of hers and that, after hearing the shots, she had run into the office and Zaccak had died in her arms.

57 In his closing address the Crown prosecutor said to the jury:-

“It’s a matter for you and you will hear undoubtedly from my learned friend criticism of the Crown witnesses. Jackie Walsh for example, she didn’t tell the full truth in the first statement, she told lies and truths. As you heard in that first statement she gave to the police she told the truth but she did not implicate Mr Attallah. That was a lie at that time that she told, that Mr Attallah wasn’t involved. But why did she do that? Might she have been in fear of him? Do you think that there might be some good reason why she would be in fear of him and not seek to implicate him in that first statement? It’s a matter for you, you have heard the evidence”.

58 In her summing-up the trial judge gave the following directions about the evidence of Jackie Walsh and particularly her evidence in re-examination. Her Honour said:-

“So I start by saying to you members of the jury, that her evidence in this connection, namely fears for her safety, you must not use this evidence as disclosing a violent tendency on the part of Mr Attallah or as evidence that he is a man to be feared in that regard. The evidence was admitted for a limited purpose, namely to rebut the attack on Jackie Walsh’s credibility during cross-examination of her by Mr Stewart.

Jackie Walsh was cross-examined as to a previous inconsistent statement made by her in her first statement to the police on 13 December 2000. In that statement Jackie Walsh did not implicate Mr Attallah in the offences. In cross-examination by Mr Stewart Jackie Walsh admitted that she had mixed the truth with lies in her first interview with the police on 13 December 2000. She gave evidence that she did so, because she entertained certain fears of Mr Attallah. It was suggested to her that that explanation given by her in cross-examination was a complete fabrication. In re-examination the Crown led evidence that her fear of Mr Attallah was a state of mind entertained by her at the time of giving of her first statement to the police on 13 December 2000. The Crown did this by leading evidence of certain statements made by her in that statement and in the second statement made by her on 21 March 2001. The purpose of doing so was to demonstrate that the evidence that Jackie Walsh gave of her fears of Mr Attallah was not given by her for the first time in the witness box; she had made similar remarks to the police when they had previously interviewed her. In re-examination, she gave evidence of her state of mind at the time of giving that first statement and her reasons for entertaining that state of mind.

Whether you accept Ms Jackie Walsh or reject her evidence in this regard is a matter for you, but the evidence led in re-examination by the Crown must be used by you as going only to the question of Jackie Walsh’s credibility on that issue that I have just told you about, that is her previous inconsistent statement, and for no other purpose.

If you accept that evidence of Ms Walsh in this regard, it would be quite wrong and unfair to the accused, Mr Attallah, to reason that, because Jackie Walsh entertained genuine fears of Mr Attallah, it follows that that fact amounts to evidence that you can use when considering whether he is guilty of the offences”.

59 In her summing-up the trial judge did not read or summarise to the jury any of the evidence of Jackie Walsh about her fear of the appellant, except to the extent that her Honour did so in the passage in the summing-up which I have just quoted.

60 The directions the trial judge gave the jury which I have quoted were in accordance with directions prepared by the Crown prosecutor, which were not opposed by counsel for the appellant at the trial, subject to the qualification that counsel for the appellant suggested, but did not ultimately press, that the question and answer at p 578 of the transcript immediately preceding the question “that answer is just a complete fabrication, isn’t it?” should be read to the jury. The Crown prosecutor said that he did not want any of the evidence in re-examination to be read, because it is “very damaging” to the appellant but that, if counsel for the appellant sought to have parts of the cross-examination at p 578 of the transcript read, he would press for the evidence in re-examination to be read to the jury.

61 On the hearing of this appeal it was not submitted by counsel for the appellant that the conduct of the cross-examination by counsel for the appellant at the trial had not been such as to render admissible evidence in re-examination to restore the credit of the witness. Nor was it submitted that it had not been suggested to the witness that evidence given by the witness had been fabricated. No submission was made that the proposed re-examination did not have probative value or that the trial judge had failed to take into account s 192 of the Evidence Act or that the trial judge had failed to consider whether the power conferred by s 137 of the Evidence Act should be exercised.

62 What was submitted by counsel for the appellant was that the evidence connecting the appellant with a murderer as being a member of the same family was prejudicial and so prejudicial that the only proper course for the trial judge to have followed would have been to exclude the evidence under s 137 of the Evidence Act, on the ground that its probative value was outweighed by the danger of unfair prejudice to the appellant. It was submitted that the directions given by the trial judge in her summing-up were not effective to remove the prejudice to the appellant and, indeed, that the prejudice to the appellant was so serious that it could not have been removed by any directions given by the trial judge.

63 I am satisfied, from the transcript of the argument before the trial judge on the Crown prosecutor’s application and, indeed, from the judgment her Honour gave, that her Honour did consider whether the evidence proposed to be adduced in re-examination should be excluded under s 137 of the Evidence Act and that her Honour concluded that she was not satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant. In order for the appellant to succeed on this ground of appeal it would be necessary for the appellant to establish that her Honour erred in reaching that conclusion.

64 I consider that the evidence proposed to be adduced and in fact adduced had substantial probative value. The witness Jackie Walsh was the Crown’s principal witness. It was vital to the Crown case that the jury accept her evidence incriminating the appellant in the supply of drugs at the brothel. A serious problem with the credibility of Jackie Walsh’s evidence was that, when she had first been interviewed by police on 13 December 2000, she had said that, although she had suspicions, she did not know whether the appellant had been supplying drugs and had not seen the appellant “directly” with drugs. It was suggested to Jackie Walsh in cross-examination at the trial that an answer she had given which included an assertion that in the interview she had withheld a lot of information from the police, because she did not want to get into trouble with the appellant and because of her concern for her safety and the safety of her children, was a complete fabrication. Her evidence that she had withheld information from the police because of a concern for her safety in relation to the appellant would be likely to be accorded much more weight by the jury, if she gave some credible reason why she was afraid of the appellant. Evidence from her that a person shot at the brothel, with whom she had been friendly and who had died in her arms, had been shot by someone who had a family connection with the appellant could provide such a credible reason. That the explanation had first been advanced by Jackie Walsh, not at the trial, but in the same interview in which she had declined to incriminate the appellant, would enhance the credibility of the explanation.

65 The evidence proposed to be adduced and in fact adduced, and particularly question and answer 638 in the interview, undoubtedly carried a danger of unfair prejudice to the appellant. However, in assessing the degree of the danger of unfair prejudice from this evidence, it is necessary to take into account that there was already evidence before the jury of the shooting, that the shooting had taken place at the brothel being conducted by the appellant and that the victim of the shooting had died.

66 In my opinion, it should not be concluded that the trial judge made any appellable error in declining to exclude the evidence under s137 of the Evidence Act. In particular, it should not be concluded that the weight of the danger of unfair prejudice to the appellant was such that the only proper course for the trial judge to have adopted would have been to exclude the evidence.

67 The evidence given by Jackie Walsh in re-examination was not read or summarised to the jury in the summing-up, except to the extent which I have already indicated. Her Honour gave directions which I have already set out in full, including that the evidence was admitted for a limited purpose only, that is to rebut the attack on Jackie Walsh’s credibility and was not to be used as evidence of any violent tendency on the part of the appellant.

68 I would reject this ground of appeal.

2. The trial proceedings miscarried by reason of aggressive and threatening outbursts having made initially by the family of the appellant T1397 – 1398 and later by the appellant himself on a number of occasions during the course of his evidence: see in particular T1897, T1907 and T1934. Although there were applications made for the jury to be discharged, this was not done and there were no appropriate directions given to the jury warning them not to use the fact of these outbursts in a manner which was unfairly prejudicial to the appellant.

69 The first incident occurred on 16 April 2003, the thirty-second day of the trial. The Crown witness Vanessa who had been giving evidence had been stood down. In the absence of the jury counsel for the appellant at the trial told the trial judge that his attention had been drawn by the Crown prosecutor to “a bit of a disturbance with Mr Attallah’s family” in the courtroom. The Crown prosecutor confirmed that some noises had been coming from the back of the courtroom and had attracted the jury’s attention. Counsel for the appellant at the trial said that he would ask the clerk from his instructing solicitor’s office to speak to the members of the appellant’s family. The trial judge said that she herself had not noticed anything.

70 On the following day the jury sent the trial judge a note, which was in the following terms:-

“Your Honour, we of the jury would like to draw to your attention an issue that has been occurring for some time now. Family members of the defendant are consistently interacting with the assisting solicitors for Mr Stewart by making comments and passing notes from the public gallery. Question, is this the normal courtroom practice? This was very apparent and disturbing yesterday 16 April 2003. A young lady, who we gather is the daughter of the defendant Mr Attallah, was making derogatory comments which were heard by a number of jurors as the witness Vanessa was walking in and out of the courtroom. May we ask from you that members from the public gallery are refrained from this behaviour as it is quite difficult to concentrate and remain focused on the proceedings with this going on. Thank you for your assistance in this matter. Kind regards the jury”.

71 After this note was received by the trial judge and communicated by her to the parties, counsel for the appellant applied for a discharge of the jury. The application was opposed by the Crown prosecutor.

72 During argument on the application the trial judge remarked that “the gravamen of their complaint is that their attention is being distracted by it”. A little later her Honour said:-

“I think the real focus of it is that they want to get on with their job and that is assessing the witnesses, being in a position to make findings of fact”.

73 During the argument on the application counsel for the appellant at the trial submitted that, if the trial judge refused his application for a discharge, the trial judge should give a direction to the jury to put out of their minds what they had observed.

74 The trial judge refused the application for a discharge of the jury. Although the trial transcript at p 1426 records that her Honour gave a judgment, no copy of this judgment was placed before this Court.

75 After dismissing the application for a discharge the trial judge gave the following directions to the jury:-

“Well members of the jury, I received your note and I have discussed it with counsel and the first thing that I say to you members of the jury is that steps have been taken to ensure that you are not distracted from your task during the continuance of the trial, that’s the first thing that I want to assure you about. Now members of the jury, the direction that I give to you in relation to what you have told me is that you must put out of your minds completely your observations that you’ve noted in your memorandum to me. You must put out of your mind any, not only any, all of the matters which you observed and which have been a distraction to you and ultimately when you’re making your decisions, that must be something that doesn’t enter into your deliberations at all. So that’s the second thing that I say to you.

Then in relation to one particular part of your message to me, you speak about passing of notes from the public gallery. Well members of the jury, that is not totally uncommon to happen, it does happen. I won’t say in most jury trials but it does happen in a number of jury trials and it principally occurs where someone has got an interest in the trial and the outcome of the trial. They perhaps have picked up a point which they’d like drawn to the attention of counsel acting for the party in question. So I don’t want you to be too concerned about that. I think that I have mentioned to you the matters that I wanted to and what I ask you to do now is just to continue to focus on your task and that is listening to the evidence of the witnesses and assessing the witnesses”.

76 In my opinion, her Honour did not err in not discharging the jury and her refusal to discharge the jury did not lead to any miscarriage of justice. Although no copy of her Honour’s judgment dismissing the application is available, it can be inferred from the remarks made by her Honour in the course of the argument on the application that her Honour formed the view, which was clearly open and which would have been supported by the terms of the jury’s note, that the jury were conscientiously endeavouring to perform their function and objected to what was happening because it tended to distract them from concentrating on the evidence. Her Honour gave a direction of a kind which had been sought by counsel for the appellant, directing the jury to put out of their minds what they had observed and not to allow what they had observed to enter into their deliberations. Her Honour also explained to the jury that the passing of notes between persons present in court with an interest in the proceedings and the legal representatives of an accused person often happens in criminal trials.

77 Under this ground counsel for the appellant also relied on three occasions when, during the cross-examination of the appellant, there were obviously angry outbursts by the appellant himself. On each of these occasions the appellant, who for the most part gave his evidence through an interpreter, said some things in English.

78 On the first occasion at p 1897 of the transcript the appellant, after asserting through the interpreter that police had wanted him to pay protection money in respect of the brothel, said a number of things in English including “all the corruption (of the police) I’m going to interrupt (sic)”. Counsel for the appellant immediately applied for an adjournment on the grounds that it was almost lunchtime and her Honour swiftly granted the adjournment. No application of any sort was made by counsel for the appellant as a result of this incident.

79 On the second occasion commencing at p 1907 of the transcript the appellant, after he had been asked by the trial judge not to shout, spoke in English, accusing the police of corruption and using a number of crude words and expressions. After the jury left the courtroom counsel for the appellant made an application for the discharge of the jury, which was refused by the trial judge. No separate judgment was given by the trial judge for refusing this application and no directions were given to the jury about the incident.

80 On the third occasion commencing at p 1934 of the transcript the appellant accused police of “bashing” him, because they wanted him to plead guilty and he had not pleaded guilty. On this occasion the appellant had to be physically removed from the courtroom by Correctional Services staff.

81 After this third incident counsel for the appellant, in the absence of the jury, submitted that there should be a psychiatric examination of the appellant, because the appellant’s outburst might have raised the issue of whether the appellant was fit to stand trial. Counsel for the appellant also applied for a discharge of the jury. The trial judge remarked that, if the present jury was discharged, a similar outburst by the appellant could occur at any new trial.

82 The court was informed by Correctional Services staff that the appellant had calmed down and counsel for the appellant said, if he had the opportunity to speak to the appellant (even thought the appellant was under cross-examination), the appellant might indicate to counsel that “he’s fine” and “prepared to continue with the trial”. After a short adjournment counsel for the appellant informed the court that he had spoken to the appellant and that there was no suggestion that the appellant was unfit to continue with the trial. There had been no previous indication that the appellant might not be fit to stand trial.

83 The trial judge dismissed counsel for the appellant’s application for a discharge of the jury, without giving any separate judgment and no directions were given to the jury about the incident.

84 On this appeal it was submitted by counsel for the appellant that the conduct of the appellant at the trial on these three occasions was likely to have been used by the jury in a manner which was not reasonably open to them and that, in the absence of an appropriate warning, there was a risk of unfair prejudice.

85 I do not consider the trial judge should be held to have erred in not discharging the jury on any of these occasions and in not giving any directions about these incidents and I do not consider that these incidents gave rise to a miscarriage of justice.

86 A trial judge has a wide discretion in deciding whether a jury should be discharged and a jury should be discharged, only if there is a real need for such a step to be taken.

87 In the present trial all of the three outbursts by the appellant, on which counsel for the appellant relied, occurred during a long cross-examination of the appellant, which, with interruptions, extended over five hearing days. This Court was not directed to any other occasion during the cross-examination in which the appellant lost his composure.

88 It is relevant to take into account the length of the trial and the stage in the trial at which the outbursts occurred. The cross-examination of the appellant commenced on the forty-third day of the trial and the trial continued thereafter for almost another month.

89 The conduct sought to be relied on as requiring a discharge of the jury was conduct by the appellant himself and, for obvious reasons, a trial judge should be cautious about discharging a jury and thereby terminating a criminal trial, because of conduct engaged in by the accused in the courtroom.

90 It was open to the trial judge to consider that any directions given by her specifically referring to the appellant’s conduct would only draw further attention to the appellant’s conduct.

91 I would reject this ground of appeal.

3. The trial proceedings miscarried through the intemperate and inflammatory remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury. These remarks were calculated to arouse prejudice against the appellant and sympathy for the witnesses who had given evidence against him

92 The Crown prosecutor, in accordance with the order of closing addresses in this State, addressed first, before either defence counsel addressed. For the purposes of the present ground of appeal the Crown prosecutor’s address can be divided into two parts, the first part recorded at pages 2173 to 2185 of the transcript of the trial and a second part recorded at pages 2184 to 2222 of the transcript. The present ground of appeal is concerned with some of the things said by the Crown prosecutor in the first part of his address.

93 In this first part of his address the Crown prosecutor said inter alia the following things”-

“Before we commenced the evidence in this trial, I opened to you and I promised you at that time a guided tour through the seedier side of life and I think it’s fair to say that that has occurred. (T 2173 line 33-36)”

........

“I also said to you at the beginning of this trial that this was a court of law and not a court of morals because this trial has brimmed with moral issues. We’re all brought up, raised with a moral structure, many of us in different ways, and yet none of us would deny that there’s a moral dimension to this trial. We’re not a court of morals but you might think that Mr Sabbagh and Mr Attallah indeed hoped that this would be a court of morals.” (T2173 line 57-2175 line 6).

........

“Mr Sabbagh has sat quietly at the back of this dock here, you may think hoping that your attention to him would just evaporate that because you may think Mr Attallah is such a villain that anything in comparison to that would not attract so much attention” (T2175 line 8 line 12)

94 At T2177 the Crown prosecutor said the business carried on by the two accused had “a captive market” for drugs, consisting of prostitutes who were addicted to drugs. The Crown prosecutor continued “you may think they saw their consumers as commodities”. (T2177 line 14-15)

95 The Crown prosecutor then addressed the question which he had posed of whether drug offences were victimless crimes. The Crown prosecutor said:-

“Would you describe it as exploitation? Find a prostitute who has a drug habit, employ her knowing that she’s going to want drugs. Make it a condition of her employment that she only buys them from the house. Would you call that exploitation? I would submit to you it is exploitation. That is why the law steps in. Not just in this case, but other cases. Surely if these courts are to perform any type of function which is to provide public confidence in them it should be to protect people from exploitation. People with weaknesses. People with addictions. People with personality disorders. People who are mentally ill. Whoever they are. People like children, vulnerable people. People who are open to exploitation. My submission to you is this is what these men did, and you may think they did it without conscience.

The law isn’t just here to protect the community from the wickedness of others. It is to protect people from themselves, including drug addicts. You may think these women lived a miserable existence. You may think that every dollar they earned they bought drugs with and every waking moment was invested in thinking about the next fix, and this was a perfect business opportunity for these men, and they took it. To protect people, no matter who they are, what wrongs they too have committed to themselves or to their families or the community, that is what the law is to do. That is what it is here to protect, and it is to punish those who exploit the vulnerabilities of others.

Are these victimless crimes? You may think that to take advantage of the addictions of these women was an uncaring act which diminishes the quality of all of us. How might you think it was justified in the minds of these men? Perhaps you think Mr Attallah, his attitude was one of just profit, he didn’t give a damn about these women. He suggests to you that he cared insofar he attempted to assist Vanessa or Jackie off their drugs. He had a sexual relationship with both those women.

What did he do for Rebecca who ended up in hospital and almost lost her arm and developed a heart condition through injecting cocaine which you may think he sold, and not just sold. He pushed it because the profit margin on it was somewhat better than heroin”. (T2178 line 3 – T2179 line 5)

96 The Crown prosecutor said:-

“...but there is other evidence and you may think that, if they were hoping ladies and gentlemen that you would reject the evidence of these women on the basis that they are junkie whores, they might have forgotten that there is an abundance of other evidence implicating them both”. (T2179 line 36-41)

97 The Crown prosecutor said:-

“It’s a question for you to weigh the evidence. It’s a terrible thing to fear that a member of one’s own family might fall into drugs but even worse, fall into the clutches of men such as these” (T2179 line 58 – T2180 line 2)

98 Again at p 2179 the Crown prosecutor said that the accused might think that the jury would judge these women morally “but, as I said, this is not a court of morals. They’ve (the accused) made it that way” (T 2180 line 20-21).

99 The Crown prosecutor said:-

“My submission to you would be to look at the evidence. Bring a dispassionate, clear, almost scientific mind to it. And the Crown’s submission in relation to it is that the irresistible inference is their guilt”. (T2180 line 23 –26).

100 At pp 2180 and 2181 of the transcript the Crown prosecutor said that the accused were “big fish” and that they had conducted a multi-million dollar industry.

101 At p 2181 of the transcript the Crown prosecutor said that the accused were people “who do it” (supply drugs) purely for profit, as distinct from addicts who supply drugs to support their own addictions. The Crown prosecutor said that the law has often referred to what the accused had done as “the trade in human misery” (T2181 line 14).

102 The Crown prosecutor then made submissions, to which no objection could be taken, about the Crown case being a circumstantial case, about Mr Sabbagh’s character evidence, about the concept of joint enterprise and about the meaning of the word “supply” when applied to drugs.

103 At p2185 of the transcript the Crown prosecutor referred to a young woman named Susanna, of whom “Old Joe” (Joseph Elkhoury) had been fond. The Crown prosecutor said that Susanna had not given evidence at the trial because she was dead of a heroin overdose.

104 After the Crown prosecutor had completed making what I have described as the first part of his address, counsel for the appellant at the trial made an application that the jury be discharged because of things said by the Crown prosecutor in his address.

105 The first basis of counsel for the appellant’s application was that by “an excessive emphasis on moral aspects of the evidence” the Crown prosecutor had wrongly suggested that the appellant had raised character in a particular respect. The second basis of the application was that by asserting that the accused had regarded the prostitutes as “commodities”, that the accused had engaged in “exploitation” and that the conduct of the accused was “uncaring” and “diminished the quality of us all” the Crown prosecutor had inflamed prejudice against the appellant.

106 The application by counsel for the appellant for a discharge of the jury was supported by counsel for the co-accused Sabbagh, who submitted that the unnecessary raising by the Crown prosecutor of moral issues had inflamed the jury against both accused and that it had not been part of Sabbagh’s defence case that there should be any moral judgment of the women who had given evidence in the Crown case. Counsel for Sabbagh also submitted that the reference to Susanna having died of an overdose was calculated to inflame the jury.

107 As regards the reference to Susanna, the trial judge remarked that evidence had in fact been given in the trial that Susanna had died as a result of a drug overdose and her Honour said that the Crown prosecutor had referred to Susanna in the course of making a submission about the meaning of the word “supply” and had not linked the reference to Susanna to any moral issue.

108 As regards what her Honour described as “the moral issue”, her Honour said that the view she had formed of what the Crown prosecutor had said was that the Crown was warning the jury, “perhaps in an unusual way”, not to be distracted from their fact finding task by submissions which the Crown prosecutor anticipated defence counsel would make to the jury “in terms of their not accepting the evidence of these ladies because of their being involved in the business of prostitution”.

109 The Crown prosecutor confirmed that he had been attempting to “defuse” or rebut a defence submission based on the witnesses being drug users and prostitutes and he had also made the submissions because of “the evidence of Mr Attallah which consistently involved him sticking the boot in on the issue of moral turpitude as it affects these women”.

110 The trial judge then refused the application for a discharge of the jury, without giving any further reasons.

111 In the balance of his address the Crown prosecutor analysed much of the evidence which had been given at the trial, dividing the evidence into various categories. On this appeal no objection was taken to any part of the balance of the address, except a part where, in seeking to rebut an anticipated defence argument that money Elkhoury had received from the prostitutes was money the women had given him for safekeeping, the Crown prosecutor said, sarcastically, “these heroin addicts who had to prostitute themselves for their next fix would give him money for safekeeping”.

112 In his closing address counsel for the appellant said that he was not making any submission that evidence of the Crown witnesses should not be accepted, because they were prostitutes, or that the jury should consider the witnesses as immoral and “not worthy of having an open mind brought to bear on the evidence that they gave”.

113 In her summing-up the trial judge gave the jury general directions of a usual sort that they must act impartially and dispassionately and not let sympathy or emotion sway their judgment. In summarising the submissions of counsel for the appellant the trial judge said that counsel had invited the jury to focus on the real evidentiary issues in the trial and to put out of their minds altogether questions of morality and prejudice.

114 On this appeal counsel for the appellant submitted that the trial had miscarried through the things said by the Crown prosecutor in his closing address, which, it was contended, would have aroused prejudice against the appellant and sympathy for the Crown witnesses. Counsel referred to R v McCullough (1982) 6 A Crim R 274 at 285. Counsel also submitted that in some of the remarks the Crown prosecutor had made the Crown prosecutor had, illegitimately, expressed a personal opinion of his own. Counsel referred to R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547.

115 A number of submissions were made on behalf of the Crown, including that the Crown prosecutor in his address was obliged to anticipate and to seek to rebut in advance arguments which might be put by defence counsel; that the Crown prosecutor could reasonably anticipate that in the defence addresses a strong attack would be made on the Crown witnesses, including an attack based on their having been prostitutes, drug addicts and participants in drug dealing; that the Crown prosecutor had not invited the jury to make moral judgments and had, on the contrary, urged the jury to abstain from making moral judgments; and that the nature of the evidence in the trial and the way in which the trial had been conducted by defence counsel required “robust” advocacy on the part of the Crown prosecutor; and that the statements of the Crown prosecutor to which exception was taken, while they might have involved expressive and colourful language, were not such that the jury would have been inflamed or prejudiced against the appellant.

116 On this appeal both counsel for the appellant and counsel for the Crown referred to the judgment of the Tasmanian Court of Appeal in McCullough, where the court said at pp 285-286:-

“The proper role of prosecuting counsel was described by the editor of the 19th edition of Kenny's Outlines of Criminal Law at pp. 611 and 612:

‘A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private duty -- that of doing everything that he honourably can to protect the interests of his client. He is entitled to 'fight for a verdict'. But the Crown counsel is a representative of the State, 'a minister of justice', his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. 'It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts.' 'It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done.’

That passage was cited with approval by W. B. Campbell J. sitting as a member of the Court of Criminal Appeal in Hay and Lindsay [1968] Qd R 459. However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate's role. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions. As the New Zealand Court of Appeal said in Roulston [1976] 2 NZLR 644 at 654:

" ... it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury's Laws of England (3rd edition) para 761 that prosecuting counsel 'should regard themselves as ministers of justice assisting in its administration' ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin's remarks in Trial by Jury (1966), pp. 122-123:

' ... in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution's case is not adequately presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge'.

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial."

117 In McCullough the Tasmanian Court of Criminal Appeal held that the Crown prosecutor at the trial had gone beyond what was reasonably necessary for the proper conduct of the case for the Crown. The court said at p 286:-

“His emphasis upon the sanctity of life and the horrible nature of the crime of murder, together with his characterisation of the applicant as a "despicable" and "disgusting" man who felt no remorse and who was prepared to kill someone as another person might "swat a fly" or "flick out a match" were calculated to prejudice the jury against the accused by arousing feelings of disgust and revulsion towards him. Those feelings were likely to have been reinforced by the feelings of sympathy towards the deceased and his widow which counsel sought to evoke”.

118 In his address in McCullough the Crown prosecutor likened the accused to a notorious English criminal Peter Sutcliffe, “the Yorkshire ripper,” whose arrest, trial and conviction for murder had received much publicity in the months preceding McCullough’s trial.

119 In my opinion, it is clear that some things said by the Crown prosecutor in his address should not have been said. For example, the Crown prosecutor should not have said to the jury that it would be a terrible thing to fear that a member of one’s own family might fall into drugs and, even worse, fall into the clutches of men such as the accused. Such a remark invited the jury to act, not dispassionately and impartially, but on a supposition that members of their own families might have become subject to the control of the accused. Another remark which should not have been made was to say that the jury might think that taking advantage of the addiction of the prostitutes was an act “which diminishes the quality of all of us”, which apart from its possibly inflammatory effect, was an expression of a personal opinion of the Crown prosecutor.

120 Apart from these remarks, other remarks made by the Crown prosecutor in his address, such as remarks about the accused engaging in “exploitation” and in the “trade in human misery” and regarding the prostitutes as “commodities”, raise for serious consideration the question of whether the Crown prosecutor in his address went beyond the boundaries of a proper discharge of his functions.

121 I have, however, come to the conclusion that, notwithstanding criticisms that can be properly be made of the Crown prosecutor’s address, this ground of appeal should be rejected.

122 It was submitted by counsel for the appellant that the parts of the Crown prosecutor’s address in which the Crown prosecutor had attributed to the accused, wrongly it was submitted, a hope that the jury would make moral judgments about the Crown witnesses and reject the witnesses’ evidence because of the jury’s moral disapproval of the witnesses, were unwarranted and improper.

123 As regards this submission by counsel for the appellant, there were clearly grounds for the Crown prosecutor, who had to make the first address, anticipating that a strong attack would be made on the credibility of the Crown witnesses. I also consider, on the basis of some of the cross-examination of the Crown witnesses and some of the evidence given by the appellant, that there were grounds for the Crown prosecutor anticipating that an attack would be made on the Crown witnesses on the grounds that they had been prostitutes and drug addicts and had participated in drug dealing.

124 At the beginning of the cross-examination of the principal Crown witness Jackie Walsh evidence was elicited from her that she had started using heroin at the age of fourteen and had started engaging in prostitution at the age of twenty or twenty-one. It was put to her by counsel for the appellant that her drug addiction over what was described as “a quarter of a century” had impacted, not only on her capacity to perceive what was true and what was not true, but also on her perception of morality. Jackie Walsh was cross-examined by counsel for the appellant about her “dream” or “ambition” to set up a brothel and about her involvement in the supply of prohibited drugs. It was put to her in cross-examination that she and “Old Joe” had been “leeching off each other”. It was also put to her in cross-examination a number of times that she had a talent for being “shrewd with the truth” or, more simply, that she was lying.

125 The other Crown witnesses who were or had been prostitutes were cross-examined about their drug addictions, their history as prostitutes and any involvement by them in the supply of prohibited drugs.

126 The appellant in his own evidence made a number of remarks denigrating the Crown witnesses. For example, he said that monies which had been received by him from the prostitutes had been received, not for the purchase of drugs, but for safekeeping, because the prostitutes stole money from each other, while the victim was asleep. The appellant asserted in his evidence that there had been a sexual relationship between the witness Rebecca and “Old Joe” and he made frequent references to the prostitutes using drugs, while denying that the drugs had been supplied by him.

127 In these circumstances I consider it was not impermissible for the Crown prosecutor to suggest to the jury that they might think that they were being invited by the defence, even if only implicitly, to pass moral judgments on the Crown witnesses as prostitutes and drug users and to reject the evidence of the witnesses because of moral disapproval of persons who were or had been prostitutes and drug addicts. That counsel for the appellant in his closing address disavowed making any submissions that the evidence of the Crown witnesses should not be accepted because of any immorality of the witnesses, does not show that there were not reasonable grounds for the Crown prosecutor supposing, at the time he made his address, that such a submission might be made, at least by implication.

128 It is noteworthy that the Crown prosecutor did not advocate to the jury that they should make moral judgments. On the contrary, he said that the court was not a court of morals and urged the jury to bring a dispassionate, clear, almost scientific mind to a consideration of the evidence.

129 The trial judge, who had had the advantage of hearing the Crown prosecutor make his address, formed the view that the Crown prosecutor was urging the jury not to be distracted from their proper task by submissions which the Crown prosecutor anticipated defence counsel might make, that the evidence of the Crown witnesses should not be accepted because of their involvement in prostitution.

130 The duty of the jury to act dispassionately, avoiding prejudice and emotion, was reinforced by the directions given by the trial judge in her summing-up.

131 An address to a jury is an endeavour by counsel to communicate orally with a group of lay persons. There is no general prohibition on the use in an address of colloquial expressions such as might be out of place in a formal judgment or a law review article, subject to the overriding obligation of the Crown prosecutor to act temperately and with restraint. In the present case, I would see no objection to the Crown prosecutor having said that the jury would be taken on a tour through the “seedier” side of life or even to the accused being referred to as “big fish”.

132 As was said by the New Zealand Court of Appeal in Roulston [1976] 2 NZLR 644 “the feel and atmosphere” of a particular trial may justify the use by the prosecutor of tactics which would be inappropriate in another trial. In the present case evidence had been adduced before the jury of the setting up and carrying on of a brothel, of the supply and use of large quantities of prohibited drugs and of various events occurring at the brothel, including a shooting murder. The cross-examination of the Crown witnesses had, quite properly, been vigorously conducted by defence counsel and the trial generally had been hard fought. In my opinion, the feel and atmosphere of the trial, so far as can be gathered from reading the transcript of the trial, was such as would have warranted “robust” advocacy from the Crown and the use in the Crown prosecutor’s address of language which might have been inappropriately crude or blunt in some other trials.

133 I would reject this ground of appeal. Having said that, some of the things said by the Crown prosecutor in his address were singularly inappropriate and some of the expressions used by the Crown prosecutor are open to legitimate criticism. However, a miscarriage of justice had not been established.

4. The directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate.

134 The offences with which the appellant was charged were offences of supplying not less than a large commercial quantity, that is one kilogram, of each of the drugs heroin and cocaine. That the quantity of any heroin or cocaine supplied by the appellant was not less than a large commercial quantity was clearly an element of each offence, which the Crown was required to prove beyond reasonable doubt.

135 At an early stage in the summing-up (pp 15-17) the trial judge gave the jury directions about the elements of each offence charged, that “the substance was the drug charged”, that “the accused supplied that substance” and that “the accused knew or believed that what was being (supplied) was the drug charged or was aware that there was a significant or real chance that it was”. However, at this stage of the summing-up the trial judge did not give the jury any direction about the element of the offences charged that the quantity supplied by the accused should have been not less than a large commercial quantity.

136 Much later, during a break in the summing-up, the Crown prosecutor reminded the trial judge that it was an element of each of the offences charged that the quantity of the prohibited drug supplied was not less than a large commercial quantity and that the onus was on the Crown to prove this element, like the other elements, beyond reasonable doubt. The trial judge replied to the Crown prosecutor that she had not overlooked this element but had deliberately delayed dealing with it, because she proposed to deal with the subject of the quantity of the drug supplied in a “segregated” part of the summing-up.

137 During this break in the summing-up counsel for the appellant said that it was an element of the offences charged that the quantity of any drugs supplied was not less than a large commercial quantity, that the Crown had the onus of proving that element beyond reasonable doubt, that that element was contested by the appellant and that counsel for the appellant had during the trial challenged some of the evidence of the prostitutes and some of the evidence of Detective Griffin on which the Crown’s case on the element of a large commercial quantity depended.

138 It was accepted by both defence counsel at the trial that, consistently with the defence case of each of the accused that he had not supplied drugs and did not know that drugs had been supplied, neither accused had sought to make any affirmative case about what had been the quantity of any drugs supplied.

139 The Crown prosecutor prepared and handed up to the trial judge draft written directions on the subject of the quantity of the drugs supplied. Copies of these draft directions had been given to both defence counsel, neither of whom made any submissions about the Crown prosecutor’s draft. It would appear that the directions later given by the trial judge in her summing-up incorporated the Crown prosecutor’s draft directions.

140 At pp 233-234 of the summing-up the trial judge said:-

“The next direction that I give you, members of the jury, is in relation to the supply not less than the large commercial quantity of the substance in each of the counts in the indictment. It is appropriate that at this point I remind you of the elements of the offence as charged in the indictment. Each of the charges is in the same terms but different drugs, but the elements are the substance, you’ve got to be satisfied, and these are the essential ingredients of the offences, and you must be satisfied beyond reasonable doubt that the substance was the drugs charged, that the accused supplied the substance and that the accused knew or believed at the time they supplied the substance that it was a prohibited drug and that the accused knew, believed or were aware of the likelihood that the amount of the drugs supplied was not less than the large commercial quantity of that substance.

My direction to you now relates to the fourth element, namely that the quantity of the drugs was not less than the large commercial quantity of that substance. You have before you the exhibit AAAAA and that contains a table from the Drugs Misuse and Trafficking Act 1995. The amount of the prohibited substances here, heroin and cocaine, that amount to at least a large commercial quantity at law of each of those substances is one kilogram. On the basis of the calculations performed by Detective Griffin and exhibit AAAAA there is evidence that the quantities of heroin and cocaine supplied by Mr Attallah and Mr Sabbagh during the material periods on the indictment applying to each of the accused are at least that amount. That is at least one kilogram, a large commercial quantity of each of those substances. If you accept the evidence of Detective Griffin, then you may be satisfied that each accused supplied not less than the commercial quantity of each of those substances”.

141 The trial judge then gave directions which related to the Crown case against the co-accused Sabbagh on this fourth element of the offences charged.

142 At p236 of the summing-up the trial judge said:-

“The quantities calculated in exhibit AAAAA are based only on known quantities given in evidence during the trial. They do not include unquantifiable sales including drugs given on credit, drug sales to street workers and other customers who attended the agency to purchase drugs.

The defence of Mr Attallah and Mr Sabbagh is that, if there was a drug distribution operation at Total Eternity Escorts, then it operated without their knowledge, authority or participation. They therefore cannot dispute this element of the offences that involve the quantities of the substances supplied, however, the Crown must still prove to your satisfaction, beyond reasonable doubt, that the quantities involved are not less than the large commercial quantity for those substances, namely one kilogram.

Members of the jury, you will recall that in performing his calculations Detective Griffin relied on the time sheets and the evidence of witnesses and this body of evidence was not contested. Although you may use the calculations performed by Detective Griffin as a timesaving device in determination of quantum, you must first be satisfied as to the factual foundation of those calculations where you rely on the evidence of the witnesses Jackie Walsh, Rebecca, Jade and Vanessa”.

143 At the next break in the summing-up counsel for the appellant at the trial raised two matters about the directions the trial judge had given on the subject of the quantity of the drugs supplied. Counsel, while acknowledging that “this”, that is the directions the trial judge had given, “was something that we all agreed was acceptable,” queried the part of the directions in which her Honour had said “if you accept the evidence of Detective Griffin, then you may be satisfied that each accused supplied not less than a (large) commercial quantity of each of those substances”, because, counsel submitted, the evidence of Detective Griffin was “contingent” on the primary evidence of the other Crown witnesses. Counsel for the appellant conceded that the trial judge had gone on to say that the jury would first have to accept the evidence of the primary witnesses. At p 242 of the transcript of the summing-up counsel for the appellant said:-

“It’s not a difficult concept. I think it’s important but if – your Honour has stated it but, your Honour, I just want to ensure that it’s absolutely clear in the minds of the jury”.

144 The other matter raised by counsel was the part of the directions given by the trial judge in which her Honour had said that the body of evidence consisting of the timesheets and the evidence of the witnesses Jackie Walsh, Rebecca, Jade and Vanessa on the subject of the quantity of the drugs was “not contested”. The trial judge replied that this body of evidence was not contested, in the sense that the accused were not in any position to “defend” it. Counsel for the appellant then said “your Honour, on balance I concede that the point has been made. I just thought I would ventilate it”.

145 At p 255 of the transcript of the summing-up, when the summing-up had almost been completed, the Crown prosecutor raised the matter of leaving to the jury, as a possible alternative verdict on each charge, if the jury were not satisfied beyond reasonable doubt that the quantity supplied had been not less than a large commercial quantity, a verdict of guilty of supplying not less than a commercial quantity of the drug. Her Honour then directed the jury as follows at pp 255-256 of the transcript of the summing-up:-

“You do have that direction from me this morning about the quantity, specifically that in that connection you have what has been referred to as Detective Griffin’s package. Now the indictment is in terms that the – the indictment in respect of each of the counts says supplied not less than a large commercial quantity of the particular drug. Members of the jury, if you are not satisfied that the amount was not less than the large commercial quantity, the large commercial quantity being one kilo, if you were not satisfied that the amount of the drug, in one instance it is the heroin and in the other instance it is cocaine, if you were not satisfied that the amount alleged to be supplied was a kilo or over, but you were satisfied that the amount involved was 250 grams which is a quarter of a kilo, then you can return an alternative verdict, namely that it was not less than the commercial amount. So that, as the Crown just said to you, is directed purely to the issue of the amount. The Act makes a different provision in respect to the commercial amount and the large commercial amount. You will see that in that document which is the Griffin package, it has got that – you will see it is a table there I think under tab three, the last page under tab three you will see that it refers to the quantities, what is called a commercial quantity and what is called a large commercial quantity. So if you are not satisfied that it was more than a kilo, and that applies to both the heroin and the cocaine, if you are not satisfied it was a large commercial quantity but you were satisfied or if you are satisfied that it was not less than the commercial quantity, you can bring in an alternative verdict of supply prohibited drugs in an amount not less than the commercial quantity. Have I made it clear”.

146 After giving these directions the trial judge asked counsel for the appellant at the trial whether there were any matters and counsel said “no matters arising”.

147 After the jury had retired to consider their verdicts the jury sent a note to the trial judge asking to be provided with “the written definition of joint enterprise” and “the written definition of supply” and asking the trial judge to “please explain lesser charge scenario”.

148 After discussion between the trial judge and counsel about how the jury’s note should be responded to, written directions were given to the jury on the subjects of “joint enterprise” and “supply” and the trial judge gave the following directions to the jury with regard to the alternative charges:-

“I propose to give you a further direction in relation to your question 3: ‘please explain the lesser charge scenario’ which was on your message to me yesterday.

The question of the quantity of heroin and cocaine, is the fourth element of the offence. The evidence relating to quantity is contained in exhibit AAAAA and the Crown invites you to infer from the evidence that the quantities of heroin and cocaine involved exceeded those known quantities as calculated by Detective Griffin.

You will arrive at the question of quantity in relation to each accused only if you are satisfied beyond reasonable doubt of the first three elements of the offence.”

149 Her Honour then repeated some directions she had previously given about the earlier elements of the offences.

150 Her Honour continued:-

“The indictment alleges that the quantity of heroin and cocaine, supplied by the joint enterprise, what the Crown has termed ‘the business’ between the dates on the indictment, is not less than the large commercial quantities of those substances, namely one kilogram.

So if you are satisfied that during the period of Mr Attallah’s involvement in the joint enterprise, the business supplied not less than one kilogram of both heroin and cocaine, then it follows that you will be satisfied of the fourth element in relation to Mr Attallah.

Likewise if you are satisfied that during the period of Mr Sabbagh’s involvement in the joint enterprise, the business supplied not less than one kilogram of both heroin and cocaine, then it follows that you would be satisfied of the fourth element in relation to Mr Sabbagh.

There is an alternative verdict available to you in relation to this fourth element of, not guilty of supplying not less than the large commercial quantity, that is the one kilogram, but guilty of supplying not less than the commercial quantity, 250 grams of either or both of those substances.

The alternative verdict may arise in the following circumstances. One. If you are satisfied that Mr Attallah and Mr Sabbagh were both party to the joint enterprise in the supply of heroin and cocaine, but you are not satisfied that the quantity of heroin and cocaine supplied by the joint enterprise, was at least one kilogram of both those substances during the relevant periods, then there is an alternative verdict open to you as against both accused of guilty of supplying both those substances in a quantity not less than a commercial quantity namely 250 grams, if you are satisfied that the quantity was not less than that quantity.

Or, two, if you are satisfied on the evidence that both Mr Attallah and Mr Sabbagh were party to the joint enterprise in the supply of heroin and cocaine during the relevant periods, but the quantity of one substance was at least one kilogram and the other was not, then you may return verdicts of guilty of supplying not less than the large commercial quantity of one substance and guilty of supplying not less than the commercial quantity of the other against each accused or either of them, if you are so satisfied.

Or, thirdly, if you are satisfied that both Mr Attallah and Mr Sabbagh were party to the joint enterprise in the supply of heroin and cocaine, but that during the period of Mr Sabbagh’s involvement in the joint enterprise at Total Eternity Escorts, the enterprise supplied less than the large commercial quantity but not less than the commercial quantity of either or both those substances, then in relation to Mr Sabbagh you may return a verdict of guilty of not less than the commercial quantity of either or both of those substances.

Four, if you are satisfied that Mr Attallah was party to a joint enterprise with others to supply heroin and cocaine, you must decide whether the enterprise involving Mr Attallah and others, supplied not less than the large commercial quantity or not less than the commercial quantity of either or both of those substances in relation to Mr Attallah”.

151 The directions by the trial judge which I have just quoted or referred to were given to the jury both orally and in writing.

152 On this appeal it was submitted by counsel for the appellant that the trial judge’s directions about the element of the offences charged that the quantity of the drugs supplied was not less than a large commercial quantity had been erroneous and insufficient in a number of respects. Counsel pointed out or submitted that:-

(i) This element of the offences charged had not been referred to at all in the early part of the summing-up where the trial judge gave the jury directions about the other elements of the offences.

(ii) The trial judge had not sufficiently directed the jury that, not only did the Crown have to prove that the quantity of the drugs supplied was not less than a large commercial quantity, but that the Crown also had to prove that the accused knew that the quantity of the drugs supplied was not less than a large commercial quantity.

(iii) The trial judge had not sufficiently directed the jury that the onus was on the Crown to prove this fourth element of the offences charged beyond reasonable doubt. In the directions given by the trial judge in the summing-up about the possible alternative verdicts her Honour had repeatedly said that the jury would have to be “satisfied,” without on any occasion saying that the jury would have to be satisfied “beyond reasonable doubt”.

(iv) The trial judge had directed the jury that, if they accepted the evidence of Detective Griffin, they would be satisfied that this element of the offences charged had been established, without sufficiently directing the jury that they would first have to accept the evidence of the primary witnesses on which Detective Griffin’s calculations were based.

(v) The trial judge had erroneously told the jury that the body of evidence consisting of the brothel’s timesheets and the evidence of the prostitutes relevant to the quantity of drugs supplied was not contested by the defence.

153 I accept that some criticisms can validly be made about the way in which her Honour dealt with this element of the offences charged in her summing-up. It would have been preferable for her Honour to have at least mentioned this element, when she first stated the other elements of the offences to the jury at an early stage of the summing-up. It would have been prudent for her Honour to have told the jury that they would have to be satisfied of this fourth element “beyond reasonable doubt”, when she was giving the jury directions about the possible alternative verdicts. Her Honour’s remarks that “if you accept the evidence of Detective Griffin, then you may be satisfied that each accused supplied not less than a (large) commercial quantity of each of those substances” and that the body of evidence consisting of the brothel timesheets and the evidence of the prostitutes “was not contested” would, if nothing else had been said by her Honour, have been capable of being misleading to the jury.

154 I have, however, come to the conclusion that this ground of appeal should be rejected. I will address separately each of the submissions made by counsel for the appellant which I have identified.

(i) Although this fourth element was not mentioned when her Honour first dealt with the elements of the offences, it was clearly identified as being an element of the offences in the directions given by her Honour at pp 233-236 of the summing-up and in the further directions given to the jury in response to the jury’s note.

(ii) In the directions given at p 233 of the summing-up the trial judge told the jury that they would have to be satisfied beyond reasonable doubt that inter alia “the accused knew, believed or were aware of the likelihood that the amount of the drugs supplied was not less than the large commercial quantity of that substance”.

(iii) In the directions given by the trial judge at p 236 of the summing-up her Honour directed the jury that the Crown had to prove “beyond reasonable doubt” that the quantity supplied were not less than a large commercial quantity. Early in the summing-up the trial judge had given the jury general directions of the usual sort to the effect that the onus was on the Crown to prove beyond reasonable doubt every element of a charge which it brought against an accused person.

(iv) In giving directions at pp 233-236 of the summing-up the trial judge, as counsel for the appellant at the trial conceded, told the jury that, while they might use Detective Griffin’s calculations “as a time saving device”, “you must first be satisfied as to the factual foundation of those calculations, where you rely on the evidence of the witnesses Jackie Walsh, Rebecca, Jade and Vanessa”. When Detective Griffin was giving his evidence of his calculations the trial judge had directed the jury that, before they could act on Detective Griffin’s calculations, they would need to be satisfied “as to the factual basis”.

(v) Her Honour’s remark that the body of evidence containing the evidence of the prostitutes was “not contested” must be read in the context of what her Honour had said immediately previously that, consistently with their defence that any drug distribution operation at the brothel had occurred without their knowledge, authority or participation, the accused were not in a position to dispute what quantities had been supplied in any such drug distribution operation. Her Honour immediately added that “the Crown must still prove to your satisfaction beyond reasonable doubt that the quantities involved are not less than a large commercial quantity for those substances, namely one kilogram”.

5. The directions given by the trial judge as to the potential unreliability of certain witnesses called in the case for the Crown were generally inadequate to meet the circumstances of the case: s 165 Evidence Act 1995.

155 As I have already indicated, the principal Crown witness at the trial was Jackie Walsh and other witnesses for the Crown at the trial were the prostitutes or former prostitutes Rebecca, Vanessa and Jade.

156 The evidence of each of these witnesses fell within par (d) of subs (1) of s 165 of the Evidence Act as being evidence given by a witness in a criminal proceeding who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. For example, on Jackie Walsh’s own evidence heroin and cocaine had sometimes been left with her by the appellant for supply to the prostitutes at the brothel, she had recorded “subs” for drugs while acting as a receptionist at the brothel and she had devised a method of record keeping in which records of the supply of drugs were not permanently retained in the records of the brothel.

157 It was submitted by defence counsel at the trial that the evidence of each of these witnesses also fell within par (c) of s 165(1) of the Evidence Act as being evidence of a witness the reliability of whose evidence might have been affected by “ill health”, in that the events of which each witness gave evidence had occurred when she was a drug addict and suffering from the ill-effects of her drug addiction.

158 At the trial the Crown prosecutor prepared written submissions in which he conceded that the evidence of the witnesses fell within s 165(1)(d) but submitted that, having regard to the way in which these witnesses had been cross-examined, the only direction required about matters that might cause the evidence of these witnesses to be unreliable was a direction that “these witnesses may try to exculpate themselves or minimise their part by fabricating or exaggerating the role of the accused”.

159 Copies of the Crown prosecutor’s written submissions were furnished to defence counsel. At p 2119 of the transcript the following exchange occurred between the trial judge and counsel for the appellant at the trial with respect to the Crown prosecutor’s written submissions:-

“HER HONOUR... What about ...where the Crown says the only direction open on the evidence is as follows. ‘These witnesses may try to exculpate themselves and minimise their part by fabricating or exaggerating the role of the accused’. That’s really what I should have gone to first. So if you wish further time to consider it but that’s the gravamen of your--

STEWART: Yes”.

160 At the beginning of the following day the Crown prosecutor, without any complaint by either defence counsel, informed the trial judge that counsel had “agreed” a good number of issues and that the only issues outstanding were whether a warning should be given under s 165(1)(c) of the Evidence Act and another, quite unrelated, issue. The Crown prosecutor told the trial judge “as to the accomplice warning, we’re all agreed about that, so we don’t need your Honour to rule on that issue”.

161 Counsel for the appellant pressed an application that a warning be given to the jury under s 165(1)(c) of the Evidence Act about the evidence of the witnesses Jackie Walsh, Vanessa, Rebecca and Jade. This application was refused by the trial judge.

162 Her Honour did not give any judgment setting out her reasons for rejecting the application for a warning under s 165(1)(c). However, I consider that it can be inferred that her Honour accepted submissions made by the Crown prosecutor during the argument on the application, that the witnesses had been cross-examined by defence counsel, not on the basis that their perception or recollection of events had been adversely affected by their use of drugs at the time of the events of which they gave evidence but on the basis that, in giving evidence incriminating either of the accused, they had been consciously lying, so that any direction based on par (c) of s 165(1) would not be germane to any issue which had actually been raised by the cross-examination in the trial (the Crown prosecutor cited R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506) and that, if, as was submitted by counsel for the accused, it was in accordance with common sense that the witnesses’ perception and recollection of events would have been adversely affected by their use of drugs, there was no need for a direction to be given, because a direction need not be given about a matter which would readily be understood and appreciated by a jury as falling within their general experience and understanding and where the court has no special knowledge or experience about the matter and no reason to doubt that the jury would properly assess its weight (The Crown prosecutor cited R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 especially per Howie J at 321 (98)).

163 In her summing-up the trial judge directed the jury at pp 9 and 10:-

“You should examine and scrutinise their evidence (the evidence of the prostitutes) with great care before you decide whether you accept the evidence of those witnesses”.

164 At p 226 of the summing-up the trial judge said to the jury:-

“The next matter that I give you a direction about, members of the jury, is a direction about the evidence that was given by Jackie Walsh, Rebecca, and Vanessa. I warn you that the evidence of those three witnesses, that is Jackie Walsh, Rebecca, and Vanessa, may be unreliable. The reason for this is that they themselves committed offences during this episode, that is during the events that you have heard about in this trial, and the court granted each of them a certificate which, in effect, protects them against prosecution. However, proceedings may be brought against them if the evidence which they gave is false.

Members of the jury, experience has shown that where witnesses have that protection they may try to exculpate themselves or minimise their part by fabricating or exaggerating the role of the accused. I warn you of the need for caution in determining whether to accept the evidence given by them and the weight to be given to it.

Members of the jury, I wish you to understand that I am not expressing a personal opinion about the evidence, but rather that is a warning – that the warning is given because of the nature of the evidence which is before the trial”.

165 These directions given by the trial judge as a warning pursuant to s 165(1)(d) of the Evidence Act were brief. However, the jury were warned that the evidence of the witnesses might be unreliable and of the need for caution in determining whether to accept the evidence and the weight to be given to it. The jury were informed of the principal matter which might render unreliable evidence of the kind of the evidence of the witnesses, namely that the witnesses might try to exculpate themselves or minimise their part by fabricating or exaggerating the role of the accused. Counsel for the appellant at the trial had had the opportunity of considering the Crown prosecutor’s written submission in which the directions given by her Honour had been propounded and had not asked the trial judge to give any further direction pursuant to s 165(1)(d).

166 At the hearing of this appeal no submission was made by counsel for the appellant that the trial judge had made any error in deciding not to give a warning pursuant to s 165(1)(c) of the Evidence Act.

167 I would reject this ground of appeal.

168 Having rejected all of the grounds of appeal against conviction, I consider that the appeal against conviction should be dismissed.

Appeal against Sentence

169 In the event of his appeal against conviction being dismissed, the appellant applied for leave to appeal against the sentences of life imprisonment imposed on him for each of the two offences.

170 Earlier in this judgment I noted that by virtue of s 33(3)(a) of the Drug Misuse and Trafficking Act the maximum penalty for supplying not less than a large commercial quantity of heroin or cocaine is imprisonment for life (and a fine of 5,000 penalty units).

171 Section 61 of the Crimes (Sentencing Procedure) Act provides for mandatory life sentences for certain offences. Section 61(2) provides:-

“A court is to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that:
(a) the offence involved:
(i) a high degree of planning and organisation, and

(ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and

(b) the person was solely or principally responsible for planning, organising and financing the offence, and
(c) the heroin or cocaine was of a high degree of purity, and
(d) the person committed the offence solely for financial reward”.

172 Section 61(5) of the Act is in the following terms:-

“Nothing in subsection (2) limits or derogates from the discretion of a court to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence”.

173 The offences for which the appellant was sentenced were within the definition of “serious heroin or cocaine trafficking offence” in subs (7) of s 61 of the Act.

174 The effect of the statutory provisions I have referred to is that a sentencing judge is obliged to impose a sentence of imprisonment for life on a person who has been convicted of a serious heroin or cocaine trafficking offence, if all the conditions in s 61(2) are satisfied but, even if all of those conditions are not satisfied, a judge in the exercise of his or her sentencing discretion may still impose a life sentence. A judge would be justified in imposing a life sentence, notwithstanding that all of the conditions in s 61(2) were not satisfied, only if the judge found that the offence for which the offender was being sentenced fell within the worst category of cases of that offence.

175 Her Honour Judge Backhouse imposed a life sentence for each offence as a result of finding that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied and, consequently, she was required to impose a life sentence for each offence and also, it would appear from her Honour’s remarks on sentence, as a result of finding that the offences committed by the appellant fell within the worst class of cases and that, accordingly, she should, independently of s 61(2), impose a life sentence for each offence.

176 Her Honour delivered lengthy remarks on sentence and I will summarise those remarks.

177 At pp 1-2 of the remarks on sentence her Honour stated the offences of which the appellant and Sabbagh had been convicted. At pp 2-6 of her remarks her Honour summarised the Crown case against the appellant and at pp 5-9 she summarised the Crown case against Sabbagh.

178 At pp 9-10 of her remarks her Honour referred to sentences which had already been imposed on a man named Malek who had worked in the brothel and who had pleaded guilty to a charge of knowingly taking part in the supply of not less than a commercial quantity of heroin and a charge of knowingly taking part in the supply of an indictable quantity of cocaine, and to the sentences already imposed on Joseph Elkhoury (“Old Joe”), who had pleaded guilty to charges of supplying not less than a commercial quantity of heroin and not less than a commercial quantity of cocaine.

179 At pages 10-12 of her remarks her Honour found that the quantities of drugs which had been supplied had been greater than the quantities calculated by Detective Griffin. Her Honour referred to the calculations by Detective Griffin, based on the evidence given by the witness Rebecca that the total sales of heroin during the period covered in the indictment had been 3.086 kilograms and that the total sales of cocaine during the period covered in the indictment had been 8.6408 kilograms.

180 At pages 12-13 of her remarks her Honour referred to the appellant’s previous criminal history. The appellant had previous convictions for an offence of possession of heroin in 1983, for which he had been fined; offences of supplying heroin in 1985 for which in 1986 he had been imprisoned for eight years with a non-parole period of five years; and offences of supplying heroin in 1990, for which he was sentenced to terms of imprisonment totalling five years four months with a minimum term of four years.

181 At pp 13-22 of her remarks her Honour summarised the submissions made by the Crown in the proceedings on sentence. The Crown submitted that a life sentence should be imposed for each offence as falling within the worst class of cases and also as falling within s 61(2) of the Crimes (Sentencing Procedure) Act.

182 The Crown referred to the decision of the Court of Criminal Appeal in R v Chung [1999] NSWCCA 330, in which the Court of Criminal Appeal dismissed an appeal against the sentence of life imprisonment for an offence of supplying not less than a large commercial quantity of heroin. The Crown referred particularly to some remarks made by Sully J in his Honour’s judgment in Chung. The Crown also referred to Veen v The Queen (No 2) [1988] HCA 14; (1998) 164 CLR 465 at 477 about the significance of an offender’s previous criminal history.

183 The Crown submitted that the appellant’s offences exhibited objective criminality of the highest order. The appellant had been motivated solely by the desire for profit. He had preyed on the addictions of the prostitutes, who had formed a captive market. He had “pushed” sales of cocaine to the prostitutes, who, although they had previously used heroin, had had little or no previous experience of using cocaine, because the appellant’s profit margin was higher for cocaine than heroin. The organisation which the appellant had conducted had been well organised. The appellant had supplied drugs not only to the prostitutes working at the brothel but to other purchasers as well. The drugs had been supplied over a lengthy period.

184 The Crown prosecutor then proceeded to submit that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied.

185 At pp 22-31 of the remarks on sentence her Honour summarised the submissions which had been made on behalf of the appellant in the proceedings on sentence.

186 Counsel for the appellant submitted that the court would not be satisfied that it was appropriate to impose a sentence of imprisonment for life.

187 Counsel for the appellant referred to the well known passage in the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624 (45), where their Honours said that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It was submitted that her Honour should fix an appropriate sentence for each offence, before considering the totality of the criminality.

188 Counsel for the appellant submitted that there were a number of grounds of distinction between Chung and the present case, including the quantity of the drug supplied by Chung (63 kilograms), that Chung had occupied a senior position in an international network of organised criminals, that Chung and his associates were wholesalers at the top end of the distribution of drugs, that the potential street value of the drugs supplied by Chung would have been approximately $150m and that the drugs would be used by a large number of users.

189 Counsel for the appellant also submitted that the present case was unusual in that the drugs had been supplied, in the main, to a small, closed group of individuals, several of whom had given evidence at the trial, and because of the graphic nature of this evidence from users of the drugs there was a danger of over-estimating the culpability of the appellant, in comparison with the culpability of drug dealers higher in the distribution system, who will be distant from the human misery caused by the supply of drugs and against whom the evidence may be “relatively impersonal and forensically sanitised”.

190 Counsel for the appellant disputed that there had been a “high” degree of planning and organisation (s 61(2)(a)(i)) and that the heroin and cocaine had been of a “high” degree of purity (s 61(2)(c)).

191 Counsel for the appellant submitted that the drugs which had been supplied by the appellant had been supplied in a local, retail operation with relatively unsophisticated planning and organisation.

192 At pp 31-36 of her remarks her Honour considered what sentences should be imposed on the appellant. Her Honour accepted that the quantity of drugs supplied by the appellant was small compared with the quantity of drugs which had been supplied by Chung but said that “the human misery cannot be measured by reference to the sheer bulk of the drug which may have been involved”.

193 Her Honour said that she accepted the Crown submission that the appellant’s conduct in the commission of the offences involved wickedness of the highest order. Her Honour said that she was not persuaded that “one can make a true comparison (semble distinction) between a wholesaler and a retailer. Her Honour referred to the comments made by Sully J in Chung to which she had been directed by the Crown prosecutor. Her Honour proceeded to find that all of the conditions set out in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied.

194 Her Honour took into account that there were two offences for which the appellant was being sentenced and took into account, in accordance with Veen (No 2), the appellant’s previous criminal history of convictions for drug offences.

195 There was little evidence before her Honour about the appellant’s subjective circumstances, except that at the time of sentencing he was fifty years old and was married with several children and that for a time in the year 2000 he had himself been addicted to cocaine.

196 Her Honour concluded that she should impose a sentence of imprisonment for life for each offence.

197 On this appeal the principal submissions made by counsel for the appellant can be summarised as follows. It was submitted that the sentences were manifestly excessive, that the facts of the offences did not require the imposition of a life sentence for either offence and that a substantial determinate sentence of imprisonment would have been sufficient punishment for each offence. It was submitted that Chung’s case was distinguishable from the present case on a number of grounds. It was contended that the sentencing judge should not have been satisfied that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act, and particularly the conditions in s 61(2)(a)(i) and s 61(2)(c), had been satisfied.

198 Counsel referred to a passage in the judgment of Hunt CJ at CL in R v Hamzy (1994) 74 A Crim R 341 at 351–352 where his Honour said:-

“The maximum sentence of imprisonment for life for the supply of a large commercial quantity was introduced by the insertion of the new s 33 of the Drug Misuse and Trafficking Act in 1988. The intention of the legislature was obviously to provide a savage punishment for the large-scale supplier. Nevertheless, I think that the fact that the large commercial quantity has in the particular case been reached only by accumulating the amounts individually supplied on different occasions to different persons is a matter which may when appropriate be taken into account when imposing sentence for the single offence charged”.

199 Counsel for the appellant attempted to construct a parity or proportionality argument based on the sentences which had been imposed on the co-offenders Sabbagh, Malek and Elkhoury.

200 On this appeal the Crown referred to and defended passages in her Honour’s remarks on sentence. It was submitted that her Honour had been entitled to take into account the appellant’s previous criminal history. It was submitted that in considering the sentence which should be imposed for each offence the sentencing judge had been entitled to take into account that there had been two offences. The Crown referred to R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409.

201 Certain issues which arose in the application for leave to appeal against sentence can, in my opinion, be disposed of fairly succinctly.

202 The sentencing judge was entitled, in accordance with the well known passage in the joint judgment in Veen (No 2) at p 477, to take into account the appellant’s previous criminal history of drug offences as showing that the present offences were not an uncharacteristic aberration and that the appellant in his commission of the present offences had manifested a continuing attitude of disobedience to the law, so that the purposes of sentencing of retribution, deterrence and the protection of society indicated that more severe penalties were warranted.

203 In my opinion, the differences between the objective criminality and the subjective features of the appellant, on the one hand, and the co-offenders Sabbagh, Malek and Elkhoury on the other hand, were of such a magnitude as to exclude, or at least to render tenuous, any attempted argument based on parity or proportionality in sentencing. Although the Crown case against Sabbagh, which the jury must have accepted, was that he had been a party to a joint venture with the appellant, he had clearly had a much lesser role than the appellant, he had been involved in the criminal venture for a shorter period, he had been found guilty of supplying only a commercial quantity of each of the drugs and not a large commercial quantity and he had no previous criminal history. Malek and Elkhoury had been merely employees of the appellant and each had pleaded guilty at an early stage to less serious charges than those for which the appellant was sentenced.

204 I would reject the submission made on behalf of the appellant, at least in the proceedings on sentence, that the statement of sentencing principle in the joint judgment in Pearce at 624 (45) required the sentencing judge to fix an appropriate sentence for each offence, before considering the question of totality. In my opinion, the principle applied in R v Harris in the case of multiple murders, that a sentencing judge is entitled to take into account the fact that multiple murders were committed in considering the penalty for any one of the offences, should be applied in a case such as the present, where the offender committed closely connected offences of supplying a large commercial quantity of more than one drug.

205 A matter which requires fuller consideration is the decision of this Court in Chung, which was frequently referred to by both parties in both the proceedings on sentence and in the appeal to this Court.

206 I accept that this Court has said on a number of occasions that on an appeal against sentence there is no, or only limited, utility in seeking to compare the case under appeal with some other individual case. See for example R v Morgan (1993) 70 A Crim R 368. I also accept that a maximum sentence can be a proper sentence for an offence, even though it is possible to envisage a worse case or even though it can be demonstrated that the only other case or cases in which a maximum sentence has been imposed for the same kind of offence were worse cases than the instant case.

207 However, in the present appeal, I consider that there is utility in seeking to compare the present case with Chung. According to the researches of counsel, Chung is the only other case in which a sentence of life imprisonment has been imposed for an offence under s 25(2) and s 33(3)(a) of the Drug Misuse and Trafficking Act of supplying not less than a large commercial quantity of a prohibited drug. Both in the proceedings on sentence and before this Court many submissions were made about what were contended to be points of similarity or points of dissimilarity between the present case and Chung. Furthermore, in reaching her conclusion that life sentences should be imposed, her Honour placed reliance on statements made by Sully J in his judgment in Chung.

208 In Chung the sentencing judge had imposed a sentence of imprisonment for life on Chung after he had been found guilty of an offence of supplying not less than a large commercial quantity of heroin. The Court of Criminal Appeal constituted by Sully J, Ireland J and Hidden J unanimously dismissed an appeal against the sentence.

209 The principal judgment in the Court of Criminal Appeal was given by Hidden J. At pars 12, 13 and 14 of his judgment Hidden J sketched the objective facts of the offence as found by the sentencing judge. His Honour said:-

“12 His Honour concluded that the applicant’s place “in the hierarchy of drug distribution” was “very much at the upper end of the scale”. He occupied a position of seniority in a network which was engaged in the sale of heroin at what might be termed the wholesale level. Heroin was received from overseas, sometimes brought here by members of the crew of international aircraft. It was stored at various locations in Sydney and sold at others. The distribution was on a large scale and was well organised. A system of coding was in place for communication with purchasers.....

13 The enterprise in Sydney was associated with an international criminal organisation known as Ah Kong, which had its headquarters in Thailand. It appears that the applicant was prepared to further his ends by the use of violence, if necessary. At an early stage of their association in Australia, the applicant ensured Huang’s co-operation by threatening to kill or harm members of his family. On another occasion, he sought to protect his income from the sale of heroin by telling another dealer that he would kill him if he reduced his prices. Later in 1993 the applicant left Australia, but he continued to give Huang directions and advice about the enterprise by telephone from Singapore.

14 There was evidence before his Honour about the average purity and price of heroin sold on the street in 1993. His Honour concluded that the heroin the subject of the charge, which was of a high grade of purity, had a potential street value of roughly $150 million. From time to time, the applicant or his associates transported very large amounts of money out of Australia in a clandestine manner....”

210 Later in his judgment Hidden J said that Chung “was a ruthless profiteer from the widespread distribution of high grade heroin, occupying a position towards the pinnacle of a well organised criminal network”.

211 In his judgment Hidden J observed that little was known of the subjective features of Chung, who had not given evidence either in the trial or in the proceedings on sentence.

212 In pars 25, 26 and 27 of his judgment Hidden J made some observations about the gravity of a life sentence in New South Wales, the prisoner being condemned to die in goal, without any prospect of release on parole, the possibility of an exercise of the royal prerogative of mercy being so remote that it should be discounted. Despite some subsequent legislative changes, Hidden J’s observations about the gravity of a life sentence in New South Wales continue to be applicable.

213 The conclusion Hidden J reached was that, applying the principles governing appellate review of the exercise of a judicial discretion, he could not say that it was not open to the sentencing judge to conclude that Chung’s culpability was such as to call for the imposition of the maximum sentence.

214 Sully J gave a judgment in which he agreed with the judgment of Hidden J. In his judgment Sully J referred to and repeated what he had said as a sentencing judge in R v Cheung Wai Man (unreported 22 March 1991), namely:-

“1. the importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well being of the Australian community. The same is to be said of any form of trafficking in heroin within this country.

2. the importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.

3. in the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat the challenge of which I have been speaking. What the Courts can do is to punish drug related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug related crime when they are themselves not drug dependent”.

215 Ireland J, the third member of the Court, gave a short judgment in which he said that he agreed with Hidden J and with the additional comments of Sully J.

216 The sentence of life imprisonment which had been imposed on Chung did not in fact remain in effect. A later appeal by Chung against his conviction on the ground that the trial judge had given the jury directions about Chung’s failure to give evidence at his trial which contravened what had been said in the decisions of the High Court in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 and Azzopardi v The Queen (2001) 205 CLR 50 was allowed by the Court of Criminal Appeal (R v Chung [2001] NSWCCA 484). Subsequently Chung pleaded guilty to two charges of supplying not less than a large commercial quantity of heroin. However, the quantities of heroin he admitted supplying were 10.125 kilograms and 3.5 kilograms. A District Court judge imposed determinate sentences, to be served concurrently, of twenty years eight months with a non-parole period of fifteen years two months.

217 In my opinion, as was submitted by counsel for the appellant both in the proceedings on sentence and on this appeal, there are very considerable differences between the objective criminality of Chung, as found by the original sentencing judge, and the objective criminality of the appellant, such that Chung’s objective criminality was much greater. These differences include:-

1. Chung occupied a senior position in a large international criminal organization, whereas the appellant carried on a business of supplying drugs at or just outside premises in a Sydney suburb, with the assistance of Jackie Walsh, Elkhoury and one or two others.

2. The quantity of heroin supplied by Chung was 63 kilograms, whereas the quantities supplied by the appellant, adopting the higher estimates of Rebecca in preference to the estimates of Jackie Walsh, were 3.086 kilograms of heroin and 8.6408 kilograms of cocaine. Even if these amounts were still under-estimates, the extent to which the true quantities supplied exceeded these estimates could not be quantified.

3. The heroin supplied by Chung had a potential street value of about $150m. Her Honour found that the total sales of heroin by the appellant amounted to $925,800 and that the total sales of cocaine amounted to $2,160,200.

4. In furtherance of the criminal enterprise Chung had made threats of violence, including threats to kill. Notwithstanding Jackie Walsh’s fear of the appellant, there was no evidence of actual violence or threats of violence by the appellant.

218 In sentencing the appellant the sentencing judge placed reliance on Sully J’s remarks in his judgment in Chung, which were a repetition of remarks his Honour had made as a judge of first instance in an earlier case (R v Cheung Wai Man (unreported 22 March 1991).

219 I consider that Sully J’s remarks have to be read in the context of the facts in Chung (and in Cheung Wai Man, where the offenders had imported more than 50 kilograms of heroin with a pure heroin content of about 38 kilograms) and subject to the qualifications which his Honour stated. What his Honour considered amounted to a “declaration of war on the Australian community” was “the importation or attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question”. In the present case, the appellant had not participated in any importation or attempted importation of a prohibited drug and the amount in question was very much less than the amount in question in Chung (or Cheung). In my opinion, her Honour in sentencing the appellant placed undue reliance on the remarks Sully J made in his judgment in Chung.

220 Her Honour found that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied. In my opinion, it is very doubtful whether her Honour was entitled to find that the appellant’s offences involved a “high” degree of planning and organization (s 61(2)(a)(i)), as distinct from a merely moderate degree of planning and organization.

221 I do not consider that it was open to her Honour to find that the heroin or cocaine supplied was “of a high degree of purity” (s 61(2)(c). The only evidence about the degree of purity of the drugs supplied referred to by her Honour in her remarks on sentence was evidence about the purity of deals of cocaine found on the appellant on 9 November 2000 (degree of purity 38 per cent), of cocaine found in the kitchen of the brothel on 9 November 2000 (39 per cent) and deals of cocaine found on Elkhoury on 9 November 2000 (50 per cent). There was no evidence which would have permitted a determination of whether these degrees of purity should be regarded as “high” degrees of purity. Her Honour did not refer to any evidence at all about the degree of purity of the heroin the appellant had supplied. It is to be borne in mind that the appellant was conducting a retail operation supplying to ultimate users and that the degree of purity of the drugs supplied by him was likely to be much less than the degree of purity of drugs supplied at higher levels in the distribution system.

222 More fundamentally, I have formed the conclusion that, even taking into account that her Honour was sentencing the appellant for two offences and that the appellant had previous convictions for drug offences, it was not open to her Honour to be satisfied, within the opening words of s 61(2), that the level of the appellant’s culpability in the commission of either offence was so extreme that the community interest in retribution, punishment, community protection and deterrence could “only” be met through the imposition of a life sentence. The appellant’s objective criminality was, undoubtedly, very serious. However, what he had done was to conduct a small retail drug dealing enterprise in a Sydney suburb, with the assistance of three or four other persons, supplying drugs to, for the most part, a small group of users, many of whom were already addicted to heroin. A conclusion that the appellant had supplied not less than a large commercial quantity of each drug could only be arrived at by the aggregation of a large number of individual sales of small amounts.

223 I am also of the opinion, for similar reasons, that it was not open to the sentencing judge to find that the present case fell within the worst class of cases of the offence of supplying not less than a large commercial quantity of heroin or cocaine.

224 I would, accordingly, grant the appellant leave to appeal against the sentences imposed on him and allow his appeal against the sentences.

225 Having allowed the appellant’s appeal against the sentences imposed on him, it is necessary for this Court to re-sentence the appellant. I have already in this judgment set out the objective facts of the offences and the subjective features of the appellant, so far as they are known. In re-sentencing the appellant I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act including s 3A and s 21A.

226 Although I have decided that it was not open to the sentencing judge to impose a life sentence on the appellant, the crimes committed by the appellant were very grave and condign sentences must be imposed. In my opinion, the appellant should be sentenced for each offence to imprisonment for a term of twenty-four years with a non-parole period of eighteen years. The sentences should commence from 11 April 2001, which is the date from which the appellant has been in custody. Although the appellant was convicted of two separate offences, it is appropriate that the sentences should run concurrently with one another because the relevant conduct which gave rise to each of the offences continued over the same period of time and involved a considerable degree of overlapping.

227 I consider that the following orders should be made:-

Appeal against conviction dismissed.

Leave to appeal against the sentences imposed by Judge Backhouse on 6 August 2003 granted.

Appeal against those sentences allowed.

In lieu thereof for each offence the appellant be sentenced to a term of imprisonment of twenty-four years with a non-parole period of eighteen years commencing on 11 April 2001 and expiring on 10 April 2019, the sentences to be served concurrently.

The earliest date on which the appellant will be eligible for release on parole will be 10 April 2019.

228 BUDDIN J: I agree with James J.

229 ROTHMAN J: I agree with James J.

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LAST UPDATED: 26/08/2005

Subsequent Judicial Consideration13

Treatment Over Time

Referred to (13)