Chen v R

PARTIES: Zhen Chi Chen (appellant) The Crown

COUNSEL: T Game SC/K H Averre (appellant) G P Long SC (Crown)

SOLICITORS: Mai Lawyers (appellant) Commonwealth Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/16290

BASTEN JA RS HULME J SCHMIDT J

FRIDAY 8 OCTOBER 2010 Zhen Chi CHEN v R Judgment 1 BASTEN JA: I agree with the orders proposed by R S Hulme J, for the reasons he gives. 2 RS HULME J: On 20 September 2007 the abovenamed Appellant was arraigned on a charge that, "between about 14 January and 4 November 2003 ... (he) did deal with money intending that the money become an instrument of crime namely an offence against Section 31(1) of the Financial Transaction Reports Act 1988 (Cth) and at the time of the dealing the value of the money was $1 million or more, namely $3,088,311. The charge alleged an offence against s400.3(1) of the Criminal Code Act 1995 (Cth). 3 On 22 October 2007 a jury found the Appellant guilty and on 27 March 2008 Nield DCJ sentenced the Appellant to imprisonment for 15 years, 6 months and 10 days including a non-parole period of 9 years, 6 months and 10 days, both such periods to commence on 22 October 2007. In arriving at those period his Honour took into account a period of pre-sentence custody, having previously expressed the view that the appropriate penalty otherwise was imprisonment for 16 years and 6 months including a non-parole period of 10 years and 6 months. 4 Mr Chen has appealed against the conviction and seeks leave to appeal against the sentence imposed. The Notice of Intention to Appeal was filed on 2 April 2008. Rule 3A of the Criminal Appeal Rules (NSW) provides that such a notice has effect for a period of 6 months although the Court can extend that time. Rule 3B provides that a Notice of Appeal can be lodged during the time a Notice of Intention to Appeal has effect. 5 Three applications for extensions of time were granted, the last expiring on 24 July 2009. When notifying the solicitor for the Appellant of that last mentioned extension, the Registrar advised that there would be no further extensions. A further Application for an extension of time was lodged on 6 August 2008 but it was not dealt with, no doubt, because of the stance adopted in the last communication from the Registrar. 6 On 19 October 2009 a Notice of Appeal was lodged. It bears a stamped notation, "Listed for CCA call-over 5 Nov 2009". An accompanying document entitled "Grounds of Appeal" contained three grounds of appeal against conviction and one ground of appeal against sentence. Received by the Court on the same date was an affidavit from the Appellant's solicitor. It said that an extension of time for the submission of a Notice of Appeal was required and that Counsel required an extension of time to complete the grounds of appeal and submissions. It provided no reasons or explanation for the 12 months delay to that time. 7 These documents were followed a few days later by the documents required by rule 23C. A Record of Proceedings before the Registrar on 5 November 2009 contains notations to the effect that the "CDPP", presumably the Commonwealth Director of Public Prosecutions, had not been served and an affidavit re the delay was required. The matter was stood over to 19 November to fix a date. On 11 November 2009, a further affidavit by the solicitor for the Appellant was filed. This affidavit provided no explanation for the delay prior to 9 October 2008 when a Legal Aid application was apparently filed. The affidavit asserted that Legal Aid was granted on 14 October 2008 and at an unspecified time later for Senior and Junior Counsel to advise. The affidavit went on to say that Counsel were briefed in April 2009 but it was not until October 2009 that submissions and grounds of appeal had been settled. 8 On 19 November the Registrar listed the matter for hearing on 8 March 2010 and gave directions for the filing of documents. 9 When the hearing before this Court commenced, Senior Counsel for the Appellant was blissfully unaware of any difficulties arising from the above but sought an extension of time to add a parity ground in support of the application for leave to appeal against sentence. The Crown indicated it had no objection to an extension of time or to an amendment to add the additional grounds and counsel for the Appellant was told by the Court that he might take it he had leave to file the amended grounds of appeal with a new ground 4 dealing with sentence. 10 Although not sought, leave was required with respect to the challenge to the conviction, the grounds of appeal not being limited to a question of law alone: Criminal Appeal Act 1912 (NSW), s5(1)(a). The issues raised were arguable and the conviction resulted in a long sentence. Accordingly, a grant of leave is appropriate and Mr Chen is referred to in these reasons as the "Appellant". 11 In outline, the Crown case was that at various times the Appellant had provided bundles of cash to a Mr Huang on the basis that Mr Huang would act under the Appellant's instruction to transfer the money to various bank accounts in Hong Kong and that during the 10 month period the subject of the charge, Mr Huang conducted 333 international money transfers for the Appellant, each transfer being in an amount of less than $10,000 but amounting in total to the $3,088,311 referred to in the indictment. In his opening the solicitor who appeared for the Appellant said that there was no challenge or issue that Mr Huang did the banking which the Crown Prosecutor had referred to in his opening but "the real matter that you're deciding beyond reasonable doubt is whether or not… the Accused had anything to do with what Mr Huang did." 12 Mr Huang gave evidence and the Crown Prosecutor was permitted to cross-examine him on certain aspects of his testimony. The Appellant did not give evidence but two other witnesses were called on his behalf. The first, a Mr Yin, gave evidence that he was a director of a company BNY Trading Pty Limited, a company that processed, tinned and exported abalone. Mr Yin gave evidence of an agreement with the Appellant to share the profits of BNT from 3 March 2003 and also some evidence indicating that trading in abalone involved substantial amounts of money. In chief, Mr Yin said that purchase of abalone involved prior cash payments although in cross-examination he agreed that at least in some cases what he meant by prior payment in cash was prior payment into a supplier's bank account. Mr Yin and a second witness Mr Dan gave evidence of an agreement between BNY and a Chinese company entered into some time prior to January 2004 and negotiated by the Appellant. 13 The grounds of appeal are:- 1. The learned trial Judge erred in his warning and failed to direct adequately the jury with respect to the evidence of Huang. 2. The trial Judge erred in his directions to the jury concerning the evidence of Huang in that he impermissibly removed from consideration any and all legitimate hypotheses consistent with innocence. 3. The trial miscarried by reason of the following:- (a) The trial Judge's statement that he had formed an opinion about the case combined with; (b) A lack of balance in the trial Judge's directions to the jury. 4. The sentence imposed was manifestly excessive.

Ground 1 The learned trial Judge erred in his warning and failed to direct adequately the jury with respect to the evidence of Huang. 14 As Mr Huang was criminally concerned in the events giving rise to the proceedings against the Appellant, and the latter's solicitor requested a warning, then pursuant to Section 165(2) of the Evidence Act 1995 (NSW), Neild J was obliged to:- (a) Warn the jury that the evidence may be unreliable; (b) Inform the jury of matters that may cause it to be unreliable; and (c) Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. 15 In the circumstances of the case, there were no good reasons for not providing a warning, though it was unnecessary that a particular form of words be used in doing so. The passages relevant to this ground upon which reliance is placed on behalf of the Appellant or the Crown, and others to which is appropriate to refer, are as follows:- (For convenience of later reference I have broken up what is transcribed into shorter paragraphs than appear in the transcript and numbered them.)

1.1 Now, members of the jury, both the learned Crown Prosecutor and learned solicitor for the Accused told you that I would give you a direction concerning the reliability of the evidence of Mr Huang. I will give you this direction not because I have formed any particular view myself and, as you know, any particular view that I may have formed does not matter one jot. I give you this direction because it is given in every criminal trial in which the Crown relies upon the evidence of a person criminally concerned in the events giving rise to the charge against the Accused person. In other words, when the Crown relies upon a person criminally concerned him or herself in the charge brought against the Accused person, the presiding Judge will direct the jury as to the reliability of that person's evidence.

1.2 The need to give this direction arises because the criminal courts have accumulated, over many years, a deal of experience concerning the reliability of a person criminally concerned him or herself in the events giving rise to the charge against the Accused person, and because that experience may not be known readily by members of the community. That experience has shown that the evidence of a person, criminally concerned him or herself in the events giving rise to the charge against the Accused person is often unreliable.

1.3 I do not suggest, members of the jury, and I do not want you to understand that I am suggesting, that the evidence of a person criminally concerned him or herself in the events giving rise to the charge against the Accused person is always unreliable. I do not suggest, and I do not want you to understand that I am suggesting, that the evidence of Mr Huang is necessarily unreliable because he is a person who, on his own admission, is a person criminally concerned in the events giving rise to the charge against the Accused.

1.4 I give you this direction, members of the jury, because I need to warn you that the evidence of a person, criminally concerned himself or herself in the events giving rise to the charge against the Accused may, and I emphasise the word may, be unreliable, and to tell you that, for that reason, that the evidence may be unreliable, you must consider the evidence of Mr Huang with great care and caution. You must consider that evidence with great care and caution when deciding whether to accept it, whether in whole or in part, and, if you decide to accept it, in determining the weight, that is the value, that you give to it.

1.5 There may be many reasons why a person him or herself criminally concerned in the events giving rise to a charge against the Accused person may be unreliable. You may think that that evidence may be unreliable because of the desire of the person to shift the blame, in whole or in part, to someone else, or to blame somebody for doing what the person has done, or to justify what the person has done, or to make up an untruthful story to implicate somebody else or to play down one's own part in what was done, or, indeed, to falsely implicate somebody in what was done. Also, members of the jury, in this regard, the experience of the criminal courts is that once a person has, as it were, commenced on the journey of implicating someone else in what was done, the person feels locked into the version and feels unable to extricate him or herself from that version and so is bound to repeat that version.

1.6 So, it is for those reasons, members of the jury, that I warn you that the evidence of Mr Huang may be unreliable. I do not tell you that his evidence is unreliable. I warn you that his evidence may be unreliable. I tell you to scrutinise his evidence with great care and caution. Of course, members of the jury, if, after taking into account the warning that I have given you about the possible unreliability of the evidence of Mr Huang and if, after scrutinising the evidence of Mr Huang with great care and caution, you decide to accept it, then you are entitled to make that decision. You are the judges of the facts of this trail. It is for you and for no one else to decide whether to accept Mr Huang in whole or in part, or to reject him in whole or in part.

1.7 So, members of the jury, to repeat what I have said, I warn you that the evidence of Mr Huang, a person himself criminally concerned in the events giving rise to the charge against the Accused, may I emphasise the word "may", be unreliable and I tell you to scrutinise his evidence with great care and caution before deciding whether to accept it in whole or in part and, if deciding to accept it, whether in whole or in part, in deciding the weight or value that you give to it.

1.8 As you know, Mr Huang was arrested, charged, pleaded guilty, sentenced, imprisoned, had his sentence reviewed by the Court of Criminal Appeal, had his sentence increased and remains in prison. He, as I will tell you later, was arrested in about October 2005. He was interviewed firstly in December 2005. He was subsequently interviewed four times during early 2006. He admitted his involvement in what he said he had done. He pleaded guilty to the charge that the Commonwealth Director of Public prosecutions brought against him. He appeared in a Court. He was sentenced by a judge. He received a discount in that sentence because he had agreed to co-operate with the prosecution, and "the prosecution" includes the New South Wales Police, the Australian Crime Commission, the Australia Federal Police and the Office of the Commonwealth Director of Public Prosecutions. For co-operating with the authorities, to include all of them in that word, he received, as he agreed, and as I commented to learned solicitor for the Accused, a substantial discount in his sentence.

1.9 Our law, members of the jury, encourages people who commit offences to plead guilty to having done so. Our law provides a discount in sentence to people who plead guilty to having committed offences. There is a guideline judgment of the Court of Criminal Appeal of this State, which outlines, in broad terms, the discount to be given to an offender who pleads guilty to having committed an offence. The value of the guilty plea, as it is called, depends upon the time at which the guilty plea is entered by the Accused person. The earlier the point in time, the greater the discount in sentence. The later the point of time, the lesser the discount in sentence. And you would appreciate why that is the case. It is the case because the less amount of work done in the investigation and prosecution, the investigation of an offence and the prosecution of the offender, the greater the saving in time and cost and therefore the greater the discount in the sentence. The greater the account of work done in the investigation of the offence and the prosecution of the offender, the lesser the saving in time and costs, therefore the lesser in discount in the sentence.

1.10 The law encourages offenders to inform, that is to implicate, co-offenders in the commission of the offence committed by the offender, or to implicate offenders in the commission of other offences. You would expect that the law would so encourage offenders. It is better for the community that offenders be brought to book for offending. If a person commits an offence jointly with another person or other people, it is better for the community that all offenders be brought to book and therefore, the law encourages an offender to implicate a co-offender or co-offenders.

1.11 Also, it is better for the community that an offender, who commits an offence to implicate offenders who commit other offences. So the law encourages offenders to implicate people who have committed offences. And the law requires that sentencing judges take into account, when determining a sentence to impose upon an offender, the fact that an offender has implicated a co-offender or co-offenders in the same offence or has implicated other offenders in other offences and the offender receives a discount in sentence, and, depending upon an assessment of the value of the evidence given by the offender, will receive a substantial discount in sentence. So there is nothing new or odd or unsavoury about an offender of a particular offence co-operating with the authorities in implicating a co-offender or co-offenders of the same offence, or in implicating other people in other offences. The community benefits from it. Parliament, representing the will of the community has enshrined it in legislation.

1.12 In this case, Mr Huang when interviewed, and whether or not he was told, as it were, "You scratch the Australian Crime Commission's back and they will scratch yours", the fact is Mr Huang had committed a serious criminal offence, and there cannot be any doubt that the offence committed by Mr Huang is a serious criminal offence. He was told, and probably by Mr Martin of the New South Wales Police, who was seconded to the Australian Crime Commission, who was one of the two police officers who went to Queensland for Mr Huang's extradition into New South Wales, that if he cooperated he would get a benefit, and, in this day and age, if a police officer does not tell that to an offender, then that police officer should be, to use a well known word, counselled, because it is important that the community receives the benefit of all offenders being brought to book. He was asked to cooperate.

1.13 He was invited to cooperate. He was told that he would get a discount in this sentence. He was probably told that it would be a substantial discount in his sentence. He agreed to cooperate. He entered into an undertaking pursuant to s21E of the Commonwealth Crimes Act to cooperate. He knew that, if he failed to cooperate fully and frankly, there was a risk that the Commonwealth Director of Public Prosecutions would appeal his sentence to the Court of Criminal Appeal to have any discount that he had received removed, and that is the law. There is not any hiding it. There is not any need to worry about it. That is the law.

1.14 In this case, as you heard, the Commonwealth Director of Public Prosecutions thought that the sentence imposed upon Mr Huang by a Judge of the District Court of New South Wales was inadequate and the Commonwealth Director of Public Prosecutions appealed from that decision to the Court of Criminal Appeal and the Court of Criminal Appeal agreed with the Commonwealth Director of Public Prosecutions that the sentence was inadequate and the Court of Criminal Appeal increased the sentence imposed upon Mr Huang by a Judge of the District Court. That is what happens in cases when a Judge imposes a sentence considered by the Director of Public Prosecutions, whether of the Commonwealth or the State, and confirmed by the Court of Criminal Appeal, to be inadequate. The sentence is increased. That is what happened to Mr Huang.

1.15 He still remains subject to the possibility that, if he did not cooperate fully and frankly with the Commonwealth Director of Public Prosecutions in the prosecution of the Accused, the Director would appeal again to the Court of Criminal Appeal. And that is why Mr Huang said in his evidence that he was concerned about what the Commonwealth Director of Public prosecutions might do if he were not to cooperate fully and frankly.

1.16 Members of the jury, in assessing Mr Huang's reliability, you are entitled, as the judges of the facts, to take into account, not only that he is a person himself criminally concerned in the events giving rise to the charge against the Accused, but also to the fact that he has entered into an agreement with the Commonwealth to cooperate in the prosecution of the Accused and that, for that cooperation, he has received a discount in sentence. In assessing his reliability as a witness, you will take that into account. You will take that into account as part of your cautious and careful consideration of the evidence that he has given.

1.17 But it, like the fact that he is a person himself criminally concerned in the events giving rise to the charge against the Accused, does not mean that you will necessarily reject his evidence. It means that it is a reason to consider his evidence with great care and caution. And, as I have said already, if, after taking into account the warning that I have given about his reliability and if, after considering his evidence of great care and caution, you decide to accept it, then you are entitled to make that decision and to act upon his evidence. 16 His Honour then adjourned so much of the trial as concerned the jury for the weekend. This was followed on the Friday afternoon and then on Monday morning by applications on behalf of the Appellant that the jury be discharged. These were refused and when the jury returned his Honour commenced the balance of his summing up by directing the jury as to the onus and burden of proof and to the need for the Crown to prove the essential elements of the charge. His Honour then made reference to a number of other matters and some time later observed:- 1.18 The learned Solicitor for the Accused has put to you that on the very same evidence, you will be left with a doubt about whether or not Mr Huang was conducting the banking transactions for and on behalf of the Accused. The learned Solicitor for the Accused has taken you to various pieces of the evidentiary material which, he has submitted to you, casts doubt upon Mr Huang's reliability, and, as I told you, reliability depends upon honesty as a person and accuracy of memory. In Mr Huang's case his agreement with Commonwealth Director of Public Prosecutions to cooperate with the Crown in the prosecution of the Accused is relevant to his reliability. 17 After his Honour had completed the principal part of the summing-up, he invited the lawyers to the parties to identify any re-directions they sought. The Solicitor for the Appellant sought that his Honour tell the jury:- "(a) That Huang's expectation to receive a discount in sentence was something which might render his evidence unreliable and that Huang was in danger of losing that discount if he didn't give evidence before the jury in accordance with his undertaking. (b) That experience of Courts has shown that in those circumstances evidence may well be unreliable." 18 His Honour refused to give the direction referred to in (b) but did add the following:- 1.19 Members of the jury, there are some things that I wish to add to what I have said and correct some mistakes that I have made and to withdraw a comment that I have made. 1.20 The first thing I wish to add is what I have said is to tell you that in your assessment of the reliability of Mr Huang, and you will remember that I told you to assess him and his evidence with great care and caution because he is a person himself criminally concerned with the events giving rise to the charge against the Accused, lest I have not made it clear in your assessment of his reliability, you are entitled to take into account that he expected to receive a discount in his sentence for his past and future cooperation with the authorities and he knew that he would be required to give evidence on the trial of the Accused and that, if he did not give full and frank evidence on the trial of the Accused, there was the possibility that the Commonwealth Director of Public Prosecutions would seek leave to appeal against his sentence to the Court of Criminal Appeal. I thought I told you all those things last Friday. Lest I did not make myself clear, I have done so now. 19 Referring to Kannan v R [2006] NSWCCA 109 at [217-218], it was submitted in this Court that the purpose of the requirement in s165 of the Evidence Act was that the warning inform the jury of matters which may cause the evidence to be unreliable and provide the jury with knowledge of matters not within their general experience and understanding. It was submitted:- "That the effect of the direction was to elevate the evidence of Huang rather than bring home to the jury the warning requested and required. What can be seen, and what is complained of, was a disproportionate amount of attention paid to the benefit of the criminal justice system of people such as Huang giving evidence. In the present case the trial judge failed to give adequate warning to the jury in relation to the benefits received by Huang as a result of his testimony. The summing-up on this subject lacked fairness and balance." 20 It is clear that in the passages I have numbered 1.2 and 1.4 - 1.7 his Honour complied with the obligations imposed by s165 save and except that the reasons his Honour gave - see paragraph 1.5 - as to why Mr Huang's evidence might be unreliable were not as complete as they might have been. However, his Honour added to these Reasons in paragraphs, 1.16, 1.17 and later in paragraph 1.20. 21 If attention is confined to only those paragraphs to which I have referred in the immediately preceding paragraph, his Honour did comply with the requirements of s165. There was the warning of the possibility Mr Huang's evidence might be unreliable, of the need for "great care and caution", reference to the experience of the criminal courts in relation to evidence of persons such as Mr Huang and information as to the possible causes of unreliability. It was not suggested during the course of the appeal that there were relevant reasons to which his Honour had not referred. 22 It must be acknowledged that in referring to the discount given to Mr Huang for cooperation with the authorities and for giving full and frank evidence, his Honour did not advert to the possible inconsistency between these two conditions, an inconsistency which would arise if Mr Huang adhered to an account originally given to authorities and incriminatory of the Appellant but which was materially false. However, in that the paragraphs to which I have referred amounted to a clear and adequate warning to the jury about the potential for unreliability in Mr Huang's evidence, I do not regard the omission as presently significant. 23 The gravamen of the complaint in this Court was rather that the effect of the warning his Honour gave was overshadowed by his Honour's eulogising of the practice whereby offenders are encouraged to inform on, and give evidence against, others and, as counsel in the Court below put it, making remarks that were "almost akin to giving (Mr Huang) a medal". - AB45. 24 Certainly his Honour's statements in the paragraphs I have numbered 1.9 to 1.13 have this flavour about them. It was not inappropriate for his Honour to make some reference to the topics referred to in those paragraphs to indicate, say, that there was nothing unusual or disreputable about Mr Huang's cooperation, but as such matters were only of fringe relevance to the case, they should not have been given the time and prominence devoted to them or allowed to intrude upon the warning to the extent they did. 25 In so concluding, I do not ignore his Honour's explanation when complaint was made by Mr Jeffreys who asked that his Honour discharge the jury. His Honour observed that he had thought his remarks appropriate, "in view of the harping of Mr Jeffreys upon the possibility of the Crown appealing against the decision imposed on Mr Huang for his failure to fully and frankly cooperate". 26 Did the remarks however weaken or overshadow the warning to an unacceptable extent? In my view they did not. After the distracting paragraphs his Honour returned to Mr Huang's reliability, the need for great care and caution, Mr Huang's criminal involvement and the discount Mr Huang had received. The further remarks were not merely superficial or incidental and were calculated to bring back to the Jury's mind the earlier warning. Paragraph 1.20, which was one of the last things the jury heard before they retired, was likely to have had a similar re-enforcing effect. 27 It was submitted on behalf of the Crown that it followed from the terms of s165(4) of the Evidence Act, viz that, "it is not necessary that a particular form of words be used in giving the warning or information" and that therefore there was no requirement in law that juries be directed in terms of experience of the courts. That submission may well be literally true, but any failure to mention such experience in relation to matters about which a jury may be unaware is calculated to weaken the impact of a warning and a judge who fails to mention such experience when it exists certainly increases the risk of any warning being regarded as insufficient. It should be borne in mind that, when experience exists, there will be no obvious reason not to mention it. 28 In this case his Honour had mentioned such experience in the paragraphs I have numbered 1.2 and 1.5. It is not apparent why his Honour refused to do so again in conjunction with paragraph 1.20 but in the context of all his Honour did say by way of warning, I do not regard this omission as significant. 29 This ground of appeal fails.

Ground 2 The trial Judge erred in his directions to the jury concerning the evidence of Huang in that he impermissibly removed from consideration any and all legitimate hypotheses consistent with innocence. 30 It is apparent from the cross-examination of Mr Huang and the closing address of the solicitor appearing for the Appellant that the defence case was that whatever banking Mr Huang had done was not for the Appellant and might well have been done under instructions from the Appellant's father or brother. 31 The foundation for the possible involvement of the Appellant's father and brother lay in evidence that Mr Huang was friendly with the parents and frequently went for meals to premises occupied by the Appellant and his parents, that there were a number of faxed and other communications that went to those premises unaddressed to the Appellant and some of which the Appellant's father or brother rather than the Appellant were involved in. 32 It was submitted in this Court that this evidence left open the possibility that Mr Huang's actions were done for the Appellant's father or brother and not the Appellant and that the effect of some of his Honour's remarks, in particular some referring to "evidentiary material" and what was or was not evidence, was effectively to preclude the jury considering the possibility. It was submitted that in the course of his summing-up his Honour identified exhaustively and restrictively the material to which the jury could have regard and, upon the basis that such matters were not evidence, effectively excluded from their consideration possibilities or hypotheses consistent with innocence. Attention was directed also to statements wherein his Honour had erroneously characterised matters as not evidence and on one occasion had characterised a matter as established because Mr Huang had given evidence to that effect. 33 The Crown submitted that his Honour's remarks did not go as far as the Appellant's counsel maintained and that in any event it had been made clear to the jury that the Crown's case depended upon the jury being sufficiently satisfied by the evidence of Mr Huang. 34 The passages relevant to this ground upon which reliance is placed on behalf of the Appellant or the Crown, and others to which is appropriate to refer, are as follows:- (Again I have broken up what is transcribed into shorter paragraphs and numbered them. I have not thought it necessary to identify areas where I have omitted passages I do not regard as relevant to this ground.) 2.1 In order to make a decision about something, and it does not matter what it is, you have to know the facts upon which the decision will be based. In a criminal trial it is for the jury to decide for itself the facts within the body of evidentiary material upon which it will base its verdict. In deciding the facts within the evidentiary material it is for the jury to decide what factors or considerations it considers proper and appropriate to be taken into account in deciding the facts upon which it will base its verdict. 2.2 You are required by the oath or affirmation to determine all relevant questions of fact according to the evidentiary material that has been presented to you in the courtroom during the course of the trial. That evidentiary material comprises, as you know, what was said by the twenty-two witnesses and the way or manner in which it was said, and I will have something to say about that shortly, and that which is contained in the sixty-three exhibits. That is the material and that is the only material to which you can bring your common senses to bear, and I will say something about that in a moment, and that is the material and that is the only material, as I said to you in my opening statement now nineteen days ago, upon which you can act to reach your verdict in this trial - AB15-16. 2.3 I said a moment ago that I will tell you about your use of common sense. You are asked to use your common sense, your individual experience and wisdom, your understanding of the ways of humankind. Each of us in our walk of life meets life's experiences. Meeting life's experiences gives us that common sense, that individual experience and wisdom, that understanding of the ways of humankind. You are asked to use your common sense when you assess the witnesses and the evidence that each has given. Moreover, as the learned solicitor for the Accused said to you, not only do you use your own common sense but you use the collective common sense of twelve different people. Each of you in your own walk of life has met, as I have said, life's experiences. You have met different life's experiences from the others of you. You have formed a different understanding of the ways of humankind. So there is this pool of common sense of twelve different people. So, not only do you use your own common sense, but in your discussions that I expect that you will have in the jury room you use the common sense of your other jurors in assessing the witnesses, although really there is only one witness to assess, and in assessing the evidence presented to you in this trial. 2.4 I have said already that over the last two days you have heard from the learned Crown prosecutor and learned solicitor for the Accused would put submission to you as to how you might view the evidentiary material leading towards your verdict. I said that I expected that each of them would endeavour to assist you in your task as the judges of the facts to decide within that evidentiary material the facts upon which you would base your verdict. It would not have surprised you that the learned Crown prosecutor put to you that there were evidence and reasons which, if you accepted them, would lead you to a verdict of guilty. Equally it would not have surprised you that the learned solicitor for the Accused put to you that there were evidence and reasons which, if you accepted them, would lead you to a verdict of not guilty. Each of them was referring to the same evidentiary material, yet each of them submitted to you that examination of that evidentiary material would lead to a different result. Each was doing that which his role required of him. Each did things in a different way, albeit that both of them referred extensively to the evidentiary material, particularly the surveillance of Mr Huang, the photographs at the 141 Ninth Avenue Belfield house, the intercepted telephone conversations, and the intercepted facsimile transmission. You will be comforted, I hope, to know that I will not be referring to the extent that the learned Crown prosecutor referred or to the extent to which the learned solicitor for the Accused referred to that evidentiary material. 2.5 I want you to give to the submissions of the learned Crown prosecutor and the learned solicitor for the Accused such weight as you, as the judges of the facts, consider proper and appropriate to be given. That is your role in this trial. As I said to you at the beginning of my summing-up, it is not for the learned Crown Prosecutor or the learned solicitor for the Accused, any more than it is for me, to tell you, the judges of the facts, how it is that you decide your verdict in this trial. But give to counsel's submissions such value as you consider that each deserves, remember, as I have said already, when the lawyers have said all the words in this trial, and I am one of the three of them, it is for the twelve of you, the judges of the facts, to decide for yourselves in the privacy of the jury room the facts within the evidentiary material upon which you will base your verdict. 2.6 This brings me to the evidentiary material. I have said already that the evidentiary material is that which was said by the twenty-two witnesses and the way or manner in which they said it, and that which is contained in the sixty-three exhibits. As you know, I have prepared a list of the witnesses in the order in which each gave evidence and you have a copy of that list, and I have prepared a list of the exhibits in the order in which each was admitted into evidence and you have a copy of that list. That is the material and that is the only material to which you bring your common sense to bear. 2.7 In a criminal trial the jury is entitled as the judges of the facts to take into account the way or manner in which a witness answers questions. We lawyers call it demeanour. Psychologists call it body language. It does not matter what term you use to describe it. You are entitled to take into account, if you wish to do so, the way or manner in which each witness answered questions. However, having said that, of all of the twenty-two witnesses there is really only one witness whose evidence is under serious challenge, and that obviously is Mr Huang, whose evidence is central to the Crown's case against the Accused. 2.8 So, members of the jury, when you look at all the 22 witnesses you will find, I expect, that the witness whose evidence is seriously challenged is Mr Huang.

2.9 As well as the evidence of the 22 witnesses, you have the evidence in the 63 exhibits. ... None of that evidentiary material in the exhibits is challenged. You can accept the exhibits for what they are. It is for you as the judges of the facts to interpret the evidentiary material. So what I am about to say is primarily directed towards Mr Huang.

2.10 In determining whether to accept Mr Huang or to reject him, you look at what he said and the way or manner in which he said it. You will determine whether or not he is a reliable witness. ...

2.11 In deciding whether to accept a witness in whole or in part you are entitled as the judges of the facts to look in the evidence generally to see whether there is something which supports or undermines what the witness said.

2.12 In this criminal trial, as in any criminal trial, it is for the jury to assess the witness giving the version, to assess the version that is given and to look within the evidence generally to see if there is something which supports or undermines that version. And when that is done, a decision is made as to whether to accept the version in whole or in part. And in this trial, the person whose evidence it is for you to assess is Mr Huang.

2.13 The evidence in this trial that is the crucial evidence, the evidence upon which the Crown case rests, is the evidence of Mr Huang. The learned Crown prosecutor made that clear to you. The learned solicitor for the Accused made that equally clear to you. I make it clear to you.

2.14 Now before I refer to Mr Huang specifically, I wish to comment upon something said to you by the learned Crown Prosecutor. The learned Crown Prosecutor said to you that evidence is a particular thing. These are not his words. Evidence is something said by a witness. Evidence is something that is contained in an exhibit. But not everything said by a witness is evidence. The learned Crown Prosecutor said to you that if a witness is asked a question and the witness denies the question, then that means, generally speaking, that the answer does not become evidence. In other words, if a witness was asked, "Is today Thursday?" and the witness replied, "No", then there is evidence that today is not Thursday, but there is not evidence that today is Friday. So that if a witness is asked, as Mr Huang was asked by the learned solicitor for the Accused, whether he had received the money that he had banked from someone other than the Accused and the witness denied the proposition, then there is evidence that Mr Huang had not received the money that he had banked from somebody else.

2.15 Mr Huang's evidence is that he received the money that he banked from the Accused. Learned solicitor for the Accused put to Mr Huang that he received the money that he banked from someone other than the Accused. Mr Huang rejected that suggestion. Therefore there is not evidence that Mr Huang received the money from someone else. There is no evidence that Mr Huang received the money from someone else. So, members of the jury, when you assess the evidence, bear in mind that the answer may be the evidence. In other words, if a witness is asked, "Did you do something?" and the witness said, "Yes", then the evidence is that the witness did the something. If the witness was asked, "Did you do something?" and the witness said "No", then there is evidence that the witness did not do that something but there is not evidence that the witness did something else.

2.16 Let me give you some other examples. You will remember that in his opening to you, the learned solicitor for the Accused said that Mr Huang had rented the house at 141 Ninth Avenue Belfield. Learned solicitor for the Accused asked Mr Huang in his evidence that (sic) he had rented the house at 141 Ninth Avenue Belfield and Mr Huang replied, "Yes". So there is evidence that Mr Huang rented the house at 141 Ninth Avenue, Belfield.

2.17 In his opening, the learned solicitor for the Accused said to you that there would be evidence that Mr Huang lived in the house, at least had a bedroom in the house and slept there from time to time and kept his clothes there. Learned solicitor for the Accused asked Mr Huang had he slept in the house and he said, "No". He asked Mr Huang did he have a bedroom in the house and he said, "No". He asked Mr Huang did he keep his clothes there and Mr Huang said "No". So, therefore, members of the jury, there is evidence that Mr Huang had not slept in the house, did not have a bedroom in the house and did not keep his clothes in the house.

2.18 The learned solicitor for the Accused said to you in his opening that Mr Huang had a safe in the bedroom at 141 Ninth Avenue Belfield and that he was the only one who knew the combination to that safe. The learned solicitor for the Accused asked Mr Huang did he have a safe in the house and he said, "No". So, there is evidence that Mr Huang did not have a safe in the house, but there is no evidence that there was a safe in the house because no one said that there was. 2.19 The learned solicitor for the Accused said to you in his opening that there was a telephone line into 141 Ninth Avenue Belfield that went into Mr Huang's bedroom and there was a telephone facsimile machine on a desk in that bedroom. Mr Huang was asked by the learned solicitor for the Accused, as I have said already, did he have a bedroom in that home and he said, "No". Mr Huang was asked by the learned solicitor for the Accused did he have a telephone service into that home and a facsimile machine in that home and he said, "No". So there is evidence that Mr Huang did not have a telephone service in the Ninth Avenue Belfield address and he did not have a facsimile machine in that address. You know that there is a telephone service into that home and you know that there are facsimile transmissions to that home that have been intercepted. So you know that the telephone service is not the telephone service of Mr Huang because he has denied it and you know the facsimile machine in that home is not that of Mr Huang because he has denied it.

2.20 Now, members of the jury, in assessing Mr Huang's reliability, and I told you that reliability depends on two different albeit overlapping considerations, honesty of the witness as a person and accuracy of the witness' memory of the event or events about which the witness gives evidence, in assessing the reliability of Mr Huang you are entitled to take into account his admission of taking money, whether borrowing it, to put the best spin on it, or stealing it, to put the worst spin on it… In assessing Mr Huang's reliability, you are entitled to take into account his admission of borrowing or stealing, whichever word you wish to use to describe it, moneys from the moneys he had received in payment for abalone on behalf of the Accused. 35 His Honour followed these remarks by the warnings I have set out as paragraphs 1.11 to 1.17. These were made during the course of a Friday morning after which the jury was sent home for the weekend. On the Monday, his Honour made further observations relevant to this ground of appeal and most of which I need not quote. They included that the Crown bore the onus of proof and that what the jury were concerned with "is whether the evidence satisfies you beyond reasonable doubt of the guilt of the Accused". 36 Unusually, his Honour then went on for some 3 pages providing some eight examples of matters that did not need to be proved. He then, in the context of a number of provisions of the of the Financial Transactions Report Act, referred to three elements of the offence that the Crown did have to prove, and continued:- 2.21 The Crown's case, and it has been put to you fairly and strongly by the learned Crown Prosecutor, is that the Accused requested Mr Huang to conduct the banking transactions that Mr Huang admits having conducted; that the Accused instructed Mr Huang as to how he should conduct those banking transactions, that the Accused provided, in the sense of handing over or making available, the money that Mr Huang transferred as a consequence of those transactions.

2.22 The Crown recognises that on some occasions, not specified as to number, Mr Huang was provided with the money by the Accused's father. It is the Crown's case that, notwithstanding that the Accused's father physically provided or handed over the money, that money came to Mr Huang as a consequence of what the Accused had requested him to do and instructed him as to how he should do it. 2.23 In the course of his opening to you, the learned Solicitor for the Accused told you some things. … He told you, "the real matter that you are to decide beyond reasonable doubt is whether or not this man, this Accused, had anything to do with what Huang did".

2.24 In this trial, what the Crown must prove, and prove beyond reasonable doubt, is that the Accused dealt in money, that when dealing with that money he had the intention that it would be an instrument of crime.

2.25 … The question is whether you are satisfied that the amount of money transferred overseas by Mr Huang at the request of and upon the instruction of the Accused, if you accept that Mr Huang transferred the money overseas at the request of and on the instruction of the Accused, exceeded $1 million.

2.26 Mr Jeffreys said to you in his address that knowing somebody has committed an offence does not make the person who knows it guilty of the offence, and, subject to statutory provisions about which I will not trouble you, Mr Jeffreys is quite correct

2.27 Mr Jeffreys said to you that, if the Accused knew what his father was doing with Mr Huang, then the Accused would not be guilty merely by knowing what the father and Mr Huang were doing. Mr Jeffreys said to you that conveying a message to the Accused's father or to the Accused's brother is not dealing in the sense in which the Crown is required to prove that the Accused dealt in money. Mr Jeffreys is correct.

2.28 But, members of the jury, remember what is the Crown's case in this trial. It is the Crown's case, on the evidence of Mr Huang that the Accused requested Mr Huang to conduct the banking transactions for him. It is the Crown's case that the Accused instructed Mr Huang as to how he should conduct those transactions. It is the Crown's case that the Accused provided the money that Mr Huang was to bank, albeit that on some occasions Mr Huang actually received the money from the Accused's father. It is the Crown's case that Mr Huang reported to the Accused, albeit that on one occasion Mr Huang reported to the Accused's father, at the request of the Accused.

2.29 So, members of the jury, in this case, for you to find the Accused guilty of the offence with which he stands charged, you must be satisfied by the evidence of those three essential elements - (1) that the Accused dealt in money; (2) that, at the time, he intended that the money would be dealt with so as to avoid the Financial Transaction Reports Act; and (3) that the amount of money that he dealt with was $1 million or more. 37 After summarising more or less in chronological order various segments of evidence relied upon by the Crown and referring to some called on behalf of the Appellant his Honour went on:-

2.30 You might think that two of the intercepted telephone calls are important. You have been referred to them already. In exhibit F3 on 30 September 2003 at 17, 145 on page 4 or 5, Mr Huang was told by the Accused, have a word with the Accused's father. That part of the translation was not challenged by the Accused. Ten minutes later Mr Huang had a conversation with the Accused's father. The translation by Mr Chau has not been challenged as being inaccurate. Mr Huang was not challenged as to the code he said he used in giving details to the Accused's father at the request of the Accused.

2.31 The learned Crown Prosecutor has pointed out to you that deciphering the code allows cross-reference between what was said and the international money transfer transactions conducted by Mr Huang. The learned Crown Prosecutor relies upon that to confirm that Mr Huang was doing that which the Accused requested him to do and instructed him to do.

2.32 The Crown relies upon Mr Huang. The Crown relies upon Mr Huang's evidence supported by the surveillance of him, his comings and goings to 141 Ninth Avenue, the intercepted telephone conversations and particularly the intercepted facsimile transmissions.

2.33 The learned Solicitor for the Accused has put to you that on the very same evidence, you will be left with a doubt about whether or not Mr Huang was conducting the banking transactions for and on behalf of the Accused. The learned Solicitor for the Accused has taken you to various pieces of the evidentiary material which, he has submitted to you, cast doubt upon Mr Huang's reliability, and, as I told you, reliability depends upon honesty as a person and accuracy of memory. In Mr Huang's case his agreement with Commonwealth Director of Public Prosecutions to cooperate with the Crown in the prosecution of the Accused is relevant to his reliability.

2.34 What the Crown has got to prove is that the Accused, like Mr Huang, dealt in money; that, at the time of doing that, the Accused had the intention of avoiding the reporting requirements of the Financial Transactions Reports Act; and that the money so dealt with was $1 million or more. … On the other hand, if the Crown fails to prove any one of those three things, then the Crown has failed to prove its case.

38 I have felt it necessary to quote at length from the summing-up to demonstrate the extent of the remarks about which complaint is made and to place them in context. Having done so, it is apparent that in a number of, indeed many, respects his Honour's remarks were unfortunate. Much of what was said was unnecessary, repetitive and calculated to confuse the jury and to divert its attention from issues of significance. 39 However, that is not the ground of appeal and I am not persuaded that the summing up was so bad in those respects that this Court should take it upon itself to interfere on that basis. Returning to the ground presently under consideration, viz impermissibly removing from consideration any and all legitimate hypotheses consistent with innocence, it was clear from the time Mr Jeffreys opened to the jury that the principal, if not the only, issue in the trial was whether Mr Huang's evidence that what he had done was on the instructions of the Appellant should be accepted. In that opening Mr Jeffreys said:- "The issues. What are the issues that you'll be determining in this case? You've got to determine the elements, as the Crown has told you. But the real matter that you're deciding beyond reasonable doubt is whether or not this man, the Accused, had anything to do with what Mr Huang did. There's no challenge; there's no issue that Mr Huang did this banking. We'll hear, I expect, from Mr Huang how it was that he says he did the banking, that he went to various banks and he deposited amounts of money less than $10,000 and he'll say, 'I did it for Mr Chen'. That is the issue. That's what you've got to be satisfied beyond reasonable doubt about. It's not good enough to say, 'we think he did it for Mr Chen', 'he probably did it for Mr Chen' or 'it's likely he did it for Mr Chen'. You've got to be satisfied beyond reasonable doubt, each and every one of you as an affirmed judge of the fact, a sworn judge of the fact, that he did it for Mr Chen in the way that the Crown has indicated." 40 Mr Jeffreys' closing address included the following:- "What have we really got in this case? What we've got, ladies and gentlemen, is Mr Huang. Really we've got Mr Huang and very very little else. We have to accept this man because without him we've got nothing. That's effectively the Crown case, you don't accept Mr Huang that's it, you've got to be satisfied beyond reasonable doubt." 41 Later, after referring to evidence suggesting Mr Huang was a friend of the Appellant's father and the evidence of communications in which the Appellant was not apparently involved, Mr Jeffreys continued:- "On the evidence you've got Huang, who says it was the Accused. The Accused told me to do this, the Accused told me to do that, the Accused requested me to do this, the Accused requested me to do that. I was doing it for the Accused, that's the thrust of Mr Huang's evidence. It's possible that Mr Huang is doing whatever he's doing for the (Appellant's) father, it's possible that Mr Huang is doing whatever he was doing for the brother through the father. You've got to be satisfied that he's doing for that man there, the Accused, because that's the Crown case. Even if the Accused knew what his father was doing, or knew what his brother was doing, that isn't enough. … you're being invited by the Crown as a jury to be satisfied beyond reasonable doubt by Mr Huang that what he is telling you is the truth. That's the reality of it.

At the end of the day, ladies and gentlemen, you've got Mr Huang and his Honour will tell you the dangers." 42 Nor could the importance of Mr Huang have been forgotten during the evidence. There are 1,137 pages of transcript between the opening and closing addresses. Of these, 680 pages, including some minor interruptions, were while Mr Huang was in the witness box. 43 I have no difficulty in accepting that in some circumstances, his Honour's frequent reference to "evidentiary material" and the terms in which those references were expressed would be likely to create a risk that the jury would have felt precluded from considering possibilities or hypotheses consistent with some of that material, but not expressed in it. Furthermore, there are undoubtedly errors in what his Honour said. The statements in paragraph 2.17 that, "not everything said by a witness is evidence" and "the answer does not become evidence" were wrong, although one suspects that the reference to "answer" in that last passage was intended to be "question". The statement made in the last sentence quoted in paragraph 2.22 is also wrong.

44 However, in this case, in addition to the passages about which complaint is made, it is apparent that his Honour directed the jury:- That it was for them to make decisions about the reliability of witnesses - paragraph 2.1

That it was for them to decide what they accepted, what they rejected, and what they had a doubt about, and what weight to give to each piece of evidence - paragraph 2.3

In deciding the facts within the evidentiary material it was for the jury to decide what factors or considerations it considered proper and appropriate to be taken into account - paragraph 2.4

That they should bring their common sense to bear on the evidentiary material and in assessing the witnesses - paragraphs 2.5, 2.6, 2.9

That Mr Jeffreys had submitted there were evidence and reasons which, if accepted, would lead to a verdict of not guilty - paragraph 2.7

That the jury should give to the submissions of the Crown and Mr Jeffreys such weight as the jury considered proper - paragraph 2.8

That the jury was entitled to take into account the way and manner in which a witness gave evidence - paragraph 2.10

That it was common ground that Mr Huang's evidence was crucial - paragraph 2.16 - and was seriously challenged - paragraph 2.11

That it was for the jury to determine whether or not Huang was a reliable witness - paragraphs 2.13, 2.23

That they could accept or reject Mr Huang - paragraph 2.13

That it was for the jury to assess a witness, to assess that witness' version, and to look within the evidence generally to see if there was anything that supported or undermined that version and then to make a decision whether to accept that version in whole or in part - paragraphs 2.14, 2.15

That Mr Jeffreys had taken the jury to various pieces of evidentiary material which, he submitted cast doubt upon Mr Huang's reliability - paragraph 2.33 45 In the face of what from day 1 of a 4 week trial was stated to be the issue, Mr Jeffrey's closing submissions which I have quoted, and the statements of his Honour to which I have just referred, it is impossible to believe that the jury would have felt constrained by his Honour's remarks to accept Mr Huang's evidence implicating the Appellant and to reject other possibilities. 46 The matters to which I have referred demonstrate that the circumstances of this case are quite different from those in R v Adler [2002] NSWCCA 180 upon which much reliance was placed by Mr Jeffreys in taking objection to the terms of the summing-up in the court below. In that earlier case the trial judge had, in his summing-up, referred to a suggestion made to a witness that a particular transaction was a loan, a suggestion that the witness had rejected. His Honour then continued, "There is no other evidence throughout this trial that the moneys were a loan. That is not evidence and in consequence of which you can entirely dismiss from your mind any thoughts of the money changing hands as a result of a loan." It was said in this Court [at 128] that:- Rather than directing them to dismiss those thoughts from their minds the appropriate course to adopt was to inform the jury that although there was no positive evidence that Ms Konsuo paid the money by way of a loan they should consider all the evidence and weigh up whether, on the evidence, there was a reasonable explanation other than that the Accused committed the crime, including the consideration of whether the payments could have been a loan. 47 When account is taken of the totality of what the trial judge said in this case, his Honour did not instruct the jury to ignore possibilities inconsistent with Mr Huang's evidence. 48 This ground fails.

Ground 3 The trial miscarried by reason of the following:- (a) The trial Judge's statement that he had formed an opinion about the case combined with; and (b) A lack of balance in the trial Judge's directions to the jury. 49 The passages relevant to this ground upon which reliance is placed on behalf of the Appellant and the Crown and others to which it is appropriate to refer are as follows:- (Again the paragraph definition and numbering are mine.) 3.1 In doing what I must do, I will comment upon the evidentiary material.

3.2 Now about my comments, there are some things that I want you to understand. Firstly, I will not make a case for either the Crown or the Accused. It is not for me as the presiding judge to prefer one side to the other.

3.3 Lastly members of the jury, in what I will say about the witnesses and the evidentiary material, I will endeavour not to express an opinion about anything, and the reason for that is that any opinion that I may have formed does not matter one jot. In a criminal trial, the only opinion that matters is the opinion formed by the jury on the evidentiary material. So, members of the jury, except where something is not in dispute, I will endeavour not to express an opinion about something.

3.4 Now that does not mean that I have not formed an opinion about the things that I consider to be relevant or important or significant. I have sat in court, as you have done, for the past nineteen days. I have seen the witnesses give evidence as you saw them give evidence. I have heard the evidence given by the witnesses as you heard that evidence. I know what is contained in the sixty-three exhibits. Perhaps I understand them better than you understand them but you will have all of them in the jury room with you on Monday and you will be able to examine each of them in the detail in which they have been referred to by the learned Crown Prosecutor and learned solicitor for the Accused and in the detail in which I have seen them. I have formed an opinion. The twelve of you, as the jury, are asked to form an opinion. The opinion I have formed does not matter one jot. The only opinion that matters is one that the twelve of you, as the judges of the facts, form.

3.5 I say that, members of the jury, so that if it is that I express an opinion about something or if it is that you perceive what opinion it is that I hold about something, you must reject my expressed opinion or what you perceive to be my opinion unless it happens to coincide with the one that you have formed on the evidence, independently of what I say. 50 It was submitted that there was a risk that the jury would interpret the direction as an indication of the Judge's belief that the Appellant was guilty. It was said that the remarks, when seen in the context of the whole of the summing-up would inevitably lead the jury to infer that the Judge's belief was that the Appellant was guilty, that Huang was to be believed, and that there was no defence case worthy of serious consideration. Attention was drawn to B v The Queen (1992) 175 CLR 599 at 605-6; Bourke v The Queen (1988) 62 ALJR 425; R v Banic (2004) NSWCCA 322 and Taleb v R [2006] NSWCCA 119. 51 It is unnecessary for me to refer in any detail to those cases as it is clear law that a judge is entitled to form a view and comment strongly to a jury on factual issues - see R v Zorad (1990) 19 NSWLR 91 at 106-7; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [42]; Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 at [87]; R v Meher [2004] NSWCCA 355 at [78] et seq. 52 How strongly is demonstrated by the decision of the High Court in Tsigos v R in which judgment was delivered on 14 April 1965. The case is the subject of a note at 114 CLR 671, and another note with a little detail at (1965-66) 39 ALJR 76 but no full report is readily available. Because of that unavailability, it is convenient to refer to the decision at a little length. The High Court proceedings were an application for special leave to appeal but the Court entertained full argument as if on an appeal. The decision challenged was a decision of this Court reported at R v Tsigos (1964-5) NSWR 1607 but the issue presently relevant was not raised in this Court. Given that counsel appearing for the appellant before this Court were Goran QC and AJ Bellanto, both very experienced members of the Criminal Bar, one wonders if the failure to take the point earlier was because directions not dissimilar from that canvassed in the High Court were not uncommon. 53 The passage in the summing up of the trial judge to which exception was taken was in the following terms:- "When we resume I shall call to your mind the evidence that has been given in this case; the facts which are not contradicted or which are contradicted, and it is for you to make up your mind on the facts as they have been given in evidence here without fear of (sic) favour on your part, to say whether or not the Crown has proved the charge of murder or, if you are not satisfied of that, you then consider the question of manslaughter. I think I should tell you this, gentlemen, on the evidence before the Court it is my duty to tell you that you will be flying in the face of the oath you took, namely, to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape of the verdict of guilty of murder or manslaughter." 54 Having quoted the passage, Barwick CJ observed that the question which had exercised the court's mind was whether, taken in the context of the trial and of the summing up as a whole, the trial judge had conveyed to the jury that they could not, as distinct from should not, acquit the Appellant. Observing that the trial judge "was entitled to express to (the jury) his own view of the facts, reminding them that none the less they were the sole judge of them and at liberty to discard his views", his Honour's conclusion was that "however unnecessary … to speak as he did" the trial judge said no more than he was entitled to do. 55 Taylor and Windeyer JJ in one or two sentence judgments indicated agreement with Barwick CJ's reasons. Owen J said merely that he agreed with Barwick CJ that the application should be dismissed. 56 Kitto J dissented but the limited nature of his dissent should be noted. His Honour accepted that:- "The summing up would not, of course be necessarily vitiated by an expression, even a strong expression, of his Honour's own opinion on these questions of fact, so long as he made it clear that he was not denying to the jury the right and the duty of giving effect to their own views whether they agreed with his or not." and indicated that his dissent was because he took "a different view as to the meaning which the passage quoted by the Chief Justice would be likely to convey to the jury" and he thought "that the passage was apt to be understood by the jury to mean that because of the view the Judge took of the evidence their sworn duty obliged them to convict the applicant". 57 Perhaps because no report of the case is readily available, Tsigos v R seems not to have been frequently cited. It was however relied on by the majority of the High Court in RPS v The Queen at [42] as authority for the proposition that a judge may comment strongly on factual issues, by this Court in R v Guerin [1967] 1 NSWR 255, by Thomas J in Dee (1985) 19 A Crim R 224 at 227 (itself relied on by McHugh J in Azzopardi v R [2001] 205 CLR 50 at [87]) and by the South Australian Court of Criminal Appeal in R v D (unreported, 26 May 1997). 58 Certainly in informing a jury of his view a judge must not overawe a jury and must make it clear that the ultimate decision is theirs and they are quite free to disregard any view the judge may have. The paragraphs I have quoted in dealing with this ground and that numbered 1.6 above make it clear that these conditions were fulfilled. 59 The submission on behalf of the Appellant went further and extended to the proposition that, "it really isn't the function of the judge to be forming opinions or telling the jury anything about the subject". Remarks of Simpson J in R v Taleb [2006] NSWCCA 119 were referred to. 60 The second aspect of this last mentioned submission is adequately answered by what I have said. It is not immediately obvious that Simpson J's remarks can be reconciled with the authorities to which I have referred. So far as the first aspect of the submission is concerned, unless the judge is an abject idiot, when listening to the evidence he cannot fail in almost all cases to form at least some view as to the guilt of an accused. Furthermore, in virtually all cases there is a distinct possibility that the judge will, after the jury's verdict, have to sentence the person being tried. While the verdict itself will determine a number of issues, in many cases it can't be assumed that it will determine all, and that the judge will have no decisions to make as to the circumstances of the offence. He would be remiss in his duty if he refused to countenance forming some views while the evidence was progressing. 61 In support of the second leg of this third ground, reference was made to Healey v R [2006] NSWCCA 235 at [62] where it was said:- There is a substantial body of authority that a summing-up must put the defence case fairly and adequately to the jury. The jury must be given an adequate opportunity of understanding and giving effect to the defence and the matters relied on in support of the defence. See Stokes v The Queen (1960) 105 CLR 279 at 284; R v Sukkar (2005) NSWCCA 54 at [93] and the cases there cited. 62 It was submitted that the lengthy cross-examination of Mr Huang that had occurred was the key to the defence case but what were said to be the inconsistencies and implausibilities in that evidence were not put to the jury. The submission did not condescend to details of these inconsistencies and implausibilities.

63 There are at least 2 answers to this submission. Firstly, any such inconsistencies and implausibilities formed no significant part of Mr Jeffreys' address to the jury and his Honour had, in a number of the paragraphs I have quoted when considering Ground 2 reminded the jury that there were challenges to Mr Huang's reliability. Secondly, while he made complaint and sought redirections about other matters, Mr Jeffreys made no complaint about the suggested omissions on the part of the trial judge and asked for no further directions encompassing these matters. In these circumstances, I would refuse leave under rule 4 of the Criminal Appeal Rules for these matters to be relied upon.

64 This ground also fails and hence the appeal against conviction must be dismissed.

The Proviso 65 The Crown submitted that in the event that the Appellant succeeded on any of the grounds of appeal, the Court should nevertheless apply the proviso to s6 of the Criminal Appeal Act upon the ground that there was no substantial miscarriage of justice. Because the material supplied to the Court prior to the hearing of the appeal was insufficient to enable this issue to be determined, the Court gave the parties an opportunity to supplement that material and provide further submissions directed to the topic.

66 The stance taken on behalf of the Appellant was that, having regard to the nature of the grounds of appeal and the matters relied on in support, the case was not one for the application of the proviso.

67 In light of the conclusions at which I have arrived, it is unnecessary for me to consider in detail this further material or reach any concluded view on the submissions advanced. It is sufficient to say that the evidence which the Crown provided to the Court provides a great deal of support for the view that one or more of the occupants of the premises in which the Appellant was residing were closely involved in Mr Huang's dealings and a lesser, though still significant portion of that evidence, particularly Exhibit F3 when considered in light of other documents, provides a great deal of support for the view that between late August and early November 2003, the Appellant was providing money and giving directions to Mr Huang in respect of the banking of that money. Whether, that evidence would justify the application of the proviso might depend upon what ground(s) of appeal were made out, and the extent of any failure on the part of Nield DCJ. Certainly, it would be difficult to apply the proviso if ground 2 were established.

Ground 4 The sentence imposed was manifestly excessive.

68 As I have said, prior to making allowance for pre-sentence custody, his Honour concluded that the appropriate sentence was one of imprisonment for 16 years and 6 months including a non-parole period of 10 years and 6 months. The offence against s400.3(1) of the Criminal Code Act 1995 (Cth) carried a maximum penalty of 25 years imprisonment plus a fine.

69 His Honour was much influenced in arriving at the sentence that he did by what this Court said in the course of determining a Crown appeal from the sentence originally imposed on Mr Huang - see R v Huang [2007] NSWCCA 259; (2007) 174 A Crim R 370. In that case the Court said:- … The sentence is manifestly inadequate as a result of the notional starting sentence chosen by his Honour before applying discounts. The Judge's starting point was 6½ years. In our opinion it should have been at least 11 years although we believe that a more appropriate starting point was between 12 and 14 years. We have chosen the lowest possible figure because this is a Crown appeal. 70 The Court went on to adopt 11 years as the starting point.

71 Charteris DCJ had concluded that Huang had been used as a runner or courier but was a "very much trusted employee" of the principal who had entrusted Huang with the money, that Huang's offending involved 335 (sic) banking transactions encompassing $3,088,311 and that Huang had been paid approximately $30,000 for his efforts. This Court accepted the latter findings but said that having regard to his involvement in depositing the money in false accounts Huang should be considered to be more than a mere courier to deliver the money. The Court went on say that even if Huang's role was regarded in the more limited light Charteris DCJ had found, in light of the amount of money involved, that would not be a matter of great mitigation.

72 In sentencing the Appellant, Nield DCJ expressed agreement with a submission of the Crown Prosecutor before him that the starting point for the determination of the sentence on the Appellant should be greater than the 12 to 14 years referred to by this Court in R v Huang and adopted a figure of 16 years and 6 months.

73 Earlier, his Honour had made a number of findings concerning the objective and subjective circumstances of the offence and the Appellant. Given that, with the exception of those referred to below, there has been no challenge to these findings, it is not necessary that I recount them all though I should mention that his Honour found that the Appellant had an unblemished character and reputation, but had shown no contrition, that there was no victim of the offence and no-one had suffered any injury, loss or damage from it.

74 His Honour did however observe:- 27. The jury, by its verdict, must have accepted the evidence of Mr Huang that between 14 January 2003 and 4 November 2003 he had conducted 333 international money transfer transactions transferring money overseas amounting to $3,088,311 that had been provided to him by the offender using the method that the offender had instructed him to use, for the doing of which he was paid about $90 for each transaction that he conducted on behalf of the offender. 28. Although it is not for me to say whether or not the jury's verdict is correct, I say that its verdict of guilty did not surprise me as the Crown's case was strong to the point of overwhelming, with Mr Huang's evidence being, to some extent, corroborated and largely unexplained." 32. The evidence presented to the jury allows me to find that:- 1. Mr Huang conducted 333 international money transfer transactions transferring various amounts of money, all less than $10,000, in cash, to the accounts of 6 people, one of whom was the brother of the offender, at 4 banks in Hong Kong. 2. The transactions were conducted on various occasions over a period of about 10 months from 14 January 2003 to 4 November 2003. 3. The total amount of money transferred overseas by Mr Huang on behalf of the offender was $3,088,311.

75 The written submissions filed on behalf of the Appellant in support of this ground provided little by way of reasons as to why it should succeed beyond pointing out that the non-parole period imposed on the Appellant would not expire until he was 52, he had an unblemished past and the non-parole period was over 3 times that imposed on Huang. Even the significance of that last mentioned point was qualified by a recognition that the Appellant was, at least viz-a-viz Huang, a principal, and that Huang had pleaded guilty and received a discount for assistance. It was also pointed out that the Appellant's offence could have been worse and involved $20,000,000 or $90,000,000. Reference was also made to two cases where lesser sentences had been imposed - R v Viana [2008] NSWCCA 118 and R v Ronen [2006] NSWCCA 123.

76 In oral submissions Mr Game SC submitted that considerations of parity meant that in sentencing the Appellant, Neild DCJ should have proceeded from a commencing point of 11 years that this Court had used in sentencing Mr Huang, rather than the range of 12 to 14 years, and even if the 11 years was regarded as a reflection of the Crown appeal in Mr Huang's case, from the bottom of the 12 to 14 year range. Parity, according to the submission, demanded that one look at what a co-offender, in this case Mr Huang, received, not what he should have received: Furthermore, that although the Appellant had a greater role and accordingly one could justify a higher sentence for that reason, as Mr Huang's sentence was at, or below, the bottom of the appropriate range for him, the sentence imposed on the Appellant should be at the bottom of the range of sentences appropriate for his greater role (and other circumstances).

77 Mr Game then picked up on a point that Basten JA raised during argument, viz. that Nield DCJ had sentenced the Appellant on the basis that his offending involved an amount of $3.08M whereas there were grounds for thinking that that might not have been the appropriate amount. Mr Game said he wished to take that question, or perhaps one concerning some of the evidence bearing on the issue, on notice. - T32. Counsel appearing for the Crown in this Court pointed out that the matter had gone to the jury on the basis that there was corroboration of Mr Huang's evidence in respect of over $1,000,000 and that, if Mr Huang were accepted in that respect, he should be accepted in respect of his evidence of the 333 transactions involving over $3,000,000. Mr Jeffreys' address to the jury included no challenge to these figures except in so far as he submitted Mr Huang was generally unreliable and drew attention to evidence that Mr Huang had thought he had received $6,000 or $10,000 for his efforts. At $90 a transaction, such sums indicated far fewer than 333 transactions.

78 In light of the way in which the matter was presented, the jury's verdict thus did not necessarily involve a finding that the Appellant dealt with more than at least $1,000,000. Although further submissions and copies of some exhibits directed to the topic of the proviso were received by the Court after the hearing, neither counsel added anything to the very incomplete picture on the topic of the amount involved at the time the hearing in this Court concluded.

79 During the sentencing proceedings before Nield DCJ, the Crown had advanced written submissions in which it had contended that, "In total $3,088,311 was transferred to the Hong Kong accounts by Huang on behalf of the offender, by 333 international money transfers".

80 In response there were written submissions and supplementary submissions on sentence provided under the hand of senior and junior counsel for the Appellant and there were oral submission by counsel for both parties. There was neither challenge nor discussion concerning the proposition quoted in the immediately preceding paragraph.

81 In these circumstances, I see no reason why this Court should not proceed upon the basis of the findings of Nield DCJ that involved in the offending were 333 transfers and amount of $3,083,311. I acknowledge that, in paragraph 27 of his remarks that I have quoted Nield DCJ drew an inference from the jury's verdict that he was not entitled to draw. However, his Honour did not say that that was the foundation of his own findings and his remarks in paragraph 28 indicate that he was clearly impressed with the Crown case. In light of the fact that there was no challenge before his Honour to the Crown's contention as to the number of transfers and amount, it would be wrong for this Court to proceed on some other basis. A fortiori is this so when any challenge to the amount would require that a conclusion be formed as to the credibility of Mr Huang.

82 I turn to the issue of parity. Its rationale was stated in Postiglione v R (1996-1997) 189 CLR 295 at 301:- The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. … The parity principle … recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance'. 83 Insofar as Mr Huang's sentence was influenced by the fact it was imposed in a Crown appeal, it reflected the considerations of double jeopardy to which Mr Huang was subject but which have no application to the Appellant. The need to make "due allowance" for their different situations means that there are no grounds for regarding the 11 years starting point for the sentence imposed on Mr Huang as one to which regard should be had in the sentencing of the Appellant. Nor is there any basis for concluding that the appropriate point of comparison for the sentence imposed on the Appellant was 12 years, the bottom of the 12 to 14 years range indicated by the Court in Mr Huang's case. The principle of parity required no more than that, after making allowance for the different roles and circumstances of the 2 offenders, there be no marked disparity between the sentences imposed on them. 84 The conclusion is inescapable that the Appellant's criminality was substantially greater than that of Mr Huang whose role was largely menial. The evidence showed that, prior to the moneys being given to Mr Huang to bank, it was the Appellant who had possession of them. Part of the Appellant's case was that he was engaged in a business where substantial amounts of cash were required and apparently generated. It was the Appellant who dictated to what overseas bank accounts that cash should be directed. Nield DCJ found, and the finding was not challenged on appeal, that the Appellant did what he did to avoid the reporting conditions of the Financial Transactions Reports Act and thereby to avoid detection of the monies by the Australian Taxation Office. It is an inevitable inference that the Appellant saw benefit to himself in the course he followed with the assistance of Mr Huang even though, as Nield DCJ found, his Honour was unable to say what that benefit was. For those benefits the Appellant engaged in planned deliberate criminality virtually week after week and often more than once a week, for over 9 months. 85 To my mind the difference in roles of the two offenders means that the sentence appropriate for the Appellant has to be substantially greater than that appropriate for Mr Huang. I would not regard a difference between the 14 years suggested by this Court in Huang's case and the 16½ years imposed on the Appellant as adequately reflecting that difference. Given that the severity of imprisonment is not simply proportional to length the difference between 12 years bottom of the range suggested in Huang's case and the 16½ years imposed on the Appellant may well do so but the difference of 4½ years certainly does not create the sort of marked discrepancy that would require or justify the Court interfering on parity grounds. 86 Nor do I see any other basis on which it could be said that, compared against the 25 years maximum provided for by the statute, the sentence is manifestly excessive. 87 Because of the length of the sentence, leave to appeal against sentence should be granted but the appeal should be dismissed. 88 Accordingly the orders I propose are:- (i) Grant leave to appeal against conviction; (ii) Dismiss the appeal against conviction; (iii) Grant leave to appeal against sentence; (iv) Dismiss the appeal against sentence. 89 SCHMIDT J: I agree with R S Hulme J. **********

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