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Court of Criminal Appeal 22 April 2005

Regina v Kardoulias

[2005] NSWCCA 150

Drugs

Citation: Regina v Kardoulias [2005] NSWCCA 150
Court: New South Wales Court of Criminal Appeal
Date: 22 April 2005
Judge(s): Wood CJ at CL, Adams J, Smart AJ

Background

The appellant was convicted in the District Court of conspiring to import heroin into Australia contrary to s 233B of the Customs Act 1901. The conspiracy, as charged, ran from approximately 5 August 2001 to 4 April 2002 and involved a network of co-conspirators, including two FedEx employees who were positioned to facilitate and conceal the importation.

The scheme involved shipping heroin concealed in packages through the international FedEx freight system from Hong Kong to Sydney. A dummy run on 7 March 2002 tested the method before a second package, intercepted by Australian Customs and the AFP, was found to contain approximately 1,395 grams of heroin with a wholesale value estimated between $308,000 and $520,000.

The appellant was sentenced to 13 years 6 months imprisonment with a non-parole period of 8 years 6 months. A co-accused, who the jury found to have been acting essentially as the appellant's errand boy, was acquitted. The conviction appeal and both sentence appeals were heard separately, with the conviction appeal determined in this judgment.

  • Whether the jury's verdict was unreasonable or could not be supported by the evidence, specifically whether a reasonable jury could have been satisfied beyond reasonable doubt of the appellant's guilt
  • Whether the evidence was capable of establishing that the conspiracy was formed and that the appellant became a party to it before 15 December 2001, the date on which the relevant provision of the Customs Act was repealed and replaced by the Commonwealth Criminal Code
  • Whether, given those legislative changes, the Crown had proven continuity of the same criminal agreement across both legislative regimes

Decision

The court undertook a detailed review of the whole of the evidence, as required when a verdict is challenged as unreasonable. The evidence included extensive surveillance records, telephone intercepts, meetings between the appellant and co-conspirators, and the movements of key participants across many months.

Smart AJ concluded that the evidence firmly established the appellant's participation in the drug conspiracy. The appellant had initiated contact with the FedEx Customs Manager, Andres, on 5 August 2001 and maintained frequent contact throughout the conspiracy. He used an intermediary, his co-accused, to relay messages, and he was present at a meeting with Andres on the night of the dummy run. The intended recipients of the heroin could be traced through associations that predated December 2001.

On the legislative issue, the court found it was reasonably open to the jury to conclude that the appellant became a party to a concluded agreement to import heroin before 15 December 2001, and that the same agreement continued thereafter. No other rational hypothesis remained open on the evidence.

The court held that the verdict was reasonable and amply supported by the evidence, and that a jury acting reasonably could be satisfied beyond reasonable doubt of the appellant's guilt. The appeal against conviction was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Sentence appeals stood over for determination at a later date

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction for conspiracy to import a prohibited drug will be upheld where the cumulative weight of surveillance, telephone intercept, and meeting evidence is sufficient to exclude any other rational hypothesis.
  • The applicable test for an unreasonable verdict challenge requires the appellate court to examine the whole of the evidence and ask whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt, following M v The Queen (1994) 181 CLR 489 and MFA v The Queen (2002) 213 CLR 606.
  • Where a conspiracy straddles a change in the governing legislation, the prosecution must establish that the agreement was formed and the accused became a party to it under the earlier law, and that the same agreement continued under the replacement law.
  • An accused's acquittal does not automatically assist a co-accused on appeal where each person's role and degree of participation is assessed individually against the evidence.
  • Sufficient evidence existed to connect the appellant to the conspiracy from its formation, notwithstanding that he operated at some remove from the direct handling of the drugs.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(cb)
- Commonwealth Criminal Code, s 11.5

Cases:
- M v The Queen (1994) 181 CLR 489
- MFA v The Queen (2002) 213 CLR 606
- R v Scienczuk (1981) 5 A Crim R 243
- R v Greenfield (1973) 3 All ER 1050