Chen v The Queen [2017] VSCA 335

(6) Thereafter, the applicant sought transcript of the closing addresses. As we have said earlier, those addresses were eventually provided, in audio form, on 29 June 2016. We add that the judge had provided the applicant with a copy of his charge under cover of a letter dated 9 June 2016.

27 In all, the applicant's requirement that he be provided with transcript expanded over time. It began in October 2014, with a request for a particular ruling by the trial judge. By mid-2015, it had become a request for all the transcript. When all the transcript, but not including counsels' closing addresses, had been provided to the applicant - this occurring in September 2015 - the applicant then pressed for transcript of the closing addresses. The applicant's letter dated 8 September 2015 stated that the basis of his appeal against conviction was fresh evidence. It is difficult to see how these expanding requests for transcript could relate to that. In any event, this was an exercise that could have been instituted very much earlier had an application for leave to appeal against conviction been filed within time. Had such an application been filed, then in the ordinary course the Registry would have obtained necessary trial transcript together with the judge's charge.

28 Notwithstanding the applicant's asserted difficulty in understanding the English language and in communicating instructions at the time of his conviction and in the immediate aftermath, we do not regard his explanation for the delay in making application for leave to appeal against conviction as persuasive. To the contrary, if it was the fact that, through his daughter, he gave instructions to the firm of solicitors first engaged to file an application for leave to appeal against conviction, then his failure, through his daughter, to pursue the matter and ensure that such an application was lodged was far from satisfactory. The same observation may be made with respect to the solicitors who were second retained. Further, the applicant has not explained the statement by Mr Vassis in June 2015 that an application to appeal against conviction was not to be pursued.

29 As we have earlier noted, the applicant's application for leave to appeal against conviction specifies 17 proposed grounds. The written case which he filed outlined the way in which he sought to support each of those grounds. The respondent's written outline also addressed each of those grounds.

30 It is impossible, in the absence of full argument, to be definitive as to the merits of the proposed appeal; but it is possible to reach a reasonably firm opinion as to the likely merits of the matter. In our opinion, so considered, the grounds of appeal range from hopeless to speculative. The case is not one in which, in our opinion, the likely strength of an appeal requires, notwithstanding substantial delay, that time be extended in the interests of justice.

32 Ground 1 contends that the finding of guilt on charge 2 was unsafe and unsatisfactory. The gist of the applicant's argument is that the blister pack sachets found in the recycling bin at the rear of the Captain Chook premises could have been placed there by anyone. The Crown's response is that the bin holding the sachets was at the rear of the applicant's shop; that the bag containing the sachets was next to utensils recently collected by the applicant, some of which contained traces of pseudoephedrine and some of which had contained pseudoephedrine; that other utensils, some of which had contained pseudoephedrine or contained traces thereof, those utensils having also been collected by the applicant, were found at his shop and home; that identical capsules of ContacNT were found at his home; that similar granules containing pseudoephedrine were found in the lining of a motor vehicle registered to the applicant and driven by him; and that there were electronic scales at his shop, capable of weighing small quantities. The Crown contends that this was not a situation in which a jury must, as contrasted with might, have entertained a doubt as to the applicant's guilt. That seems to us to be a very cogent submission.

33 Grounds 2, 3, 4 and 5 relate to two phone calls made between a mobile phone belonging to the applicant and a mobile phone belonging to Tang Tao on the evening of 16 May 2011. They were made shortly before the applicant in fact picked up the DHL and FedEx parcels from Tang Tao. There was evidence at the trial suggestive that although the calls were made from the applicant's phone, they were not made by him. The matter was thoroughly agitated at trial. As the Crown observes in its submissions, even if the calls were not made by the applicant, they were made from his phone, and that was capable of bearing upon the case against him.

34 Ground 6 complains about the judge's refusal to sever charges 1 and 2. This was the ruling apparently sought by the Balot Reilly Solicitors. The ruling was provided. It did not lead to those solicitors initiating any application for leave to appeal against conviction, albeit out of time.

35 Grounds 7 and 8 complain of failure by the prosecution to provide the applicant with a full transcript of a record of interview between Customs officers and Tang Tao, and to provide a full transcript of a chat group involving Tang Tao and a person named Chao Sun. The Crown's response is that there was no failure to provide full transcripts. The applicant's complaint incorporates an allegation that what was provided was provided in English, which he did not understand. According to the Crown's response, the chat group log was provided both in Chinese and with an English translation.

36 Grounds 9, 10, 11 and 12 complain that the applicant's solicitors and counsel at trial were negligent in various ways. The grounds embrace the lawyers' asserted failure to obtain full transcripts of the Tang Tao record of interview and the chat group transcript. There is also a complaint that the lawyers failed to engage a sufficiently skilled interpreter and, by ground 12, that there was a failure to call relevant witnesses. The witnesses are identified as the applicant's wife, son, daughter, an unidentified customs officer, an unidentified local council officer, a Bendigo Bank officer, a neighbour, the purchaser of a business conducted by the applicant in Flemington, and Tang Tao.

37 This list of witnesses negligently not called interrelates with an assertion by ground 16 that the applicant is seized of new and fresh evidence which will establish his innocence. Read together, it is crystal clear, in our opinion, that what is asserted by ground 16 to be fresh evidence is not fresh evidence at all. It is the evidence that the witnesses not called, due to the asserted negligence of the legal advisors,[19] would have given. This is made clear when the submissions in support of grounds 12 and 16 are read together. This evidence was known to the applicant at the time of the trial. The complaint in ground 12 is that the lawyers were negligent by failing to call that evidence. It cannot be fresh evidence.

38 As to ground 12 itself, concerning the failure of counsel to call the identified witnesses, such grounds are difficult to make good. In TKWJ v The Queen, Gleeson CJ said:

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice.[20]

39 The Crown submission on this proposed ground points out that no affidavit material supporting the assertion of negligence has been filed. That is correct. The Crown submits that, in any event, the evidence proposed to be relied upon was of marginal relevance, or not such as to lead to a conclusion that there had been a miscarriage of justice. While it is not possible to fully assess the potential relevance of evidence not called in the context of an application of this kind, that submission seems to have substance.

40 There is no basis for a conclusion that there is potential merit in this proposed ground.

41 Ground 13 is a complaint that the prosecutor misled the jury in his final address by 'advising' it that the applicant had two mobile phones in his possession in the early evening of 16 May 2011. There seems to be nothing to the point. The applicant was apparently observed making phone calls at the relevant time, but not from, it seems, the phone referred to in grounds 2, 3, 4 and 5. It was in those circumstances, so the Crown submits, that the prosecutor postulated the possibility that the applicant was in possession of two phones at the time.

42 Ground 14 complains that the applicant was prejudiced because custom officers failed to conduct a fingerprinting analysis of various incriminating items, and of the recycling bin in which the blister pack sachets of capsules were found. The Crown's response is twofold: the reason for failure to conduct fingerprinting was explained at trial; and applicant's counsel used this circumstance to his intended advantage at the trial.

43 Ground 15 complains that the applicant was denied natural justice because Tang Tao was not prohibited from leaving Australia before the trial. The Crown's response is that he left Australia in June 2011, there being no demonstrated basis to keeping him in the country. Unless he had been charged in relation to the particular drugs offending, and he was not, that seems to be correct.

44 Finally, by ground 17, the applicant complains that the judge erred in his charge by directing the jury that the applicant owned two vehicles. The true position was apparently that the two vehicles were registered in his name, which might not amount to the same thing. It would be, with respect, a trifling error, if error it was.

45 It will be remembered that on 8 September 2015 the applicant wrote to the Registry and the Commonwealth Director of Public Prosecutions stating that the basis of his proposed appeal against conviction was that he had fresh evidence to present to the Court that he considered would establish his innocence. As proposed by ground 16, read together with ground 12, that assertion would be doomed to failure. Other than that, it is evident that a meticulous examination of the transcript of the trial, including counsels' final addresses and the judge's charge, has enabled the applicant to assemble a long list of alleged errors and deficiencies, none of which, on such examination as is possible, seems to be of much substance.

46 In our opinion, in the circumstances which we have described at some length, the interests of justice would not be served by extending the time within which the applicant might apply for leave to appeal against conviction. The application to extend time should be refused.

[2] Obviously, the contents of the DHL parcel were relied upon to establish the commercial quantity of the attempted trafficking.

[3] [2017] VSCA 302.

[4] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA) ('Jopar').

[6] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[8] Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).

[9] Jopar [2013] VSCA 83; (2013) 44 VR 695, 707 [60].

[12] Madafferi v The Queen [2017] VSCA 302 [11].

[13] [2014] HCA 37; (2014) 252 CLR 601.

[14] Ibid 614 [32] (French CJ, Hayne, Bell and Keane JJ).

[15] Affidavit of Benjamin James Kerlin sworn 22 December 2016 [20]. In fact, the judge gave two rulings that day, and both were attached to the Registry's covering email.

[19] The lawyers could hardly be blamed for not calling Tang Tao, who had been out of the country for three years at time of trial.

[20] [2002] HCA 46; (2002) 212 CLR 124, 130-131.