Cranney v R; Huynh v R - [2017] NSWCCA 234 - NSWCCA 2017 case summary — Zoe

NSWNSWCCA

Cranney v R; Huynh v R

[2017] NSWCCA 234

Court of Criminal Appeal (NSW)|2017-02-22|Before: Hoeben CJ, Latham J, Price J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2017-02-22

Before

Hoeben CJ, Latham J, Price J

Catchwords

[2010] HCA 19 ARS v R [2011] NSWCCA 266 Crofts v The Queen (1996) 186 CLR 427
[1996] HCA 22 Darwiche v R (2011) 209 A Crim R 424
[2011] NSWCCA 62 Dhanhoa v The Queen (2003) 217 CLR 1
[2003] HCA 40 Director of Public Prosecutions v Doot [1973] AC 807 Edwards v The Queen (1993) 178 CLR 193

Source

Original judgment source is linked above.

Catchwords

[2010] HCA 19 ARS v R [2011] NSWCCA 266 Crofts v The Queen (1996) 186 CLR 427[1996] HCA 22 Darwiche v R (2011) 209 A Crim R 424[2011] NSWCCA 62 Dhanhoa v The Queen (2003) 217 CLR 1[2003] HCA 40 Director of Public Prosecutions v Doot [1973] AC 807 Edwards v The Queen (1993) 178 CLR 193[1993] HCA 63 FP v R [2012] NSWCCA 182 G, F, S and W [1974] 1 NSWLR 31 George v Rockett (1990) 170 CLR 104[1990] HCA 26 Gerakiteys v The Queen (1984) 153 CLR 317[1984] HCA 8 Germakian v R (2007) 70 NSWLR 467[2007] NSWCCA 373 Harriman v The Queen (1989) 167 CLR 590[2006] NSWCCA 213 Krakouer v The Queen (1998) 194 CLR 202[1998] HCA 43 Libke v The Queen (2007) 230 CLR 559[2007] HCA 30 M v The Queen (1994) 181 CLR 487[1994] HCA 63 Palmer v The Queen (1998) 193 CLR 1[1998] HCA 2 Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37 Picken v R [2007] NSWCCA 319 Popovic v RHristovski v R

Judgment (18 paragraphs)

[1]

Background

Towards the conclusion of his closing address, the Crown Prosecutor, relevantly, said the following to the jury (Tcpt, 28 May 2015, pp 2693-2695): "…[Y]ou may be asked to consider that firstly Mr Cranney is a person of prior good character. He's a customs officer of some years standing. He had been promoted to a fairly senior level at the time of these offences…there is nothing known of him by way of any prior criminal behaviour. It might be said to you that he is someone whom you would find to be of good character. If you do find that he was, prior to these matters, a person of good character it would be relevant for you to take into account when you are considering the evidence against him. In two ways it is able to be taken into account; firstly it would be suggested that someone who is of good character, someone who hasn't been involved in criminal conduct, is unlikely to become engaged in criminal conduct let alone criminal conduct of this nature. And secondly it can be taken into account because a person of good character is not someone who would tell lies. Now if that is what is to happen you will be given a direction about it... [b]ut whatever the situation, whether or not it is sought to be relied upon, prior good character is not an iron clad defence to a criminal charge. If it was no-one would be convicted ever. It is something to take into account. But regardless of what you might find as his prior good character I would submit to you that the evidence that you have heard from Valsamakis and Lamella, and more particularly from the mouth of Mr Cranney himself or from the finger in the typing on the phone, is overwhelming evidence of his involvement in these five offences. The same might be said of Mr Huynh…[a]gain there's no evidence of prior criminal conduct but on his own admission Mr Huynh is someone who knows that Napoli and others are running around involved in dealing in cold and flu tablets for money. And he was asked about it, '[i]f you know these things why are you still hanging around?' '[w]ell he's my mate'…[h]e hangs around someone that he knows is involved in criminal conduct. The same too of Lamella. … The point is that Mr Huynh on his own admissions is running around with people that he knows to be involved in criminal conduct and in such circumstances you might find it very difficult to come to a conclusion that he was a person of prior good character. So even if the application is made for such a direction, you wouldn't find favour with it so far as Mr Huynh is concerned. He wasn't able to give any explanation as to why it was he held on to winning tickets. He wasn't able to tell us where he was hiding the cash. He wasn't able to tell us the name of the person who was depositing money into his bank account whilst he was overseas. In my submission to you, it could be extremely difficult for you to come to a conclusion that he was someone of prior good character."
Following these remarks, the Crown Prosecutor indicated that he might be finished with his address and the judge allowed the jury to briefly adjourn. In the absence of the jury, the applicants' trial counsel complained to the judge about what had been said by the Crown Prosecutor about character. Mr Stanton (Cranney's trial counsel) submitted that he had at no stage sought a character direction for his client, that such a direction would not have been open to him and that it would have been "suicidal" to make such a request. This culminated, he argued, in character being raised "in a most stark and…prejudicial fashion" (Tcpt, 28 May 2015, p 2696). Mr Stanton sought access to the transcript following the Crown Prosecutor's closing so that he could make an application for the discharge of the jury. Mr Djemal (Huynh's trial counsel) put to the judge that evidence had been called for Huynh and he "never went anywhere near character for very good reason" and what the Crown Prosecutor said about Huynh "was even more amplified when [the Crown] tried to suggest that [Huynh had] been laundering money through the TAB by way of buying tickets which were never put to him…" (Tcpt, 28 May 2015, p 2699). Mr Djemal told the judge that he would make an application to discharge the jury.
The trial adjourned over the weekend. Upon the resumption of the trial on 1 June 2015, applications to discharge the jury were made on behalf of the applicants in the absence of the jury.
Mr Stanton submitted that the Crown Prosecutor's remarks misstated what character is by arguing that it is "not an ironclad defence", as good character is never a defence, and further, that good character could not apply in this case because Cranney did not give evidence or make an out of court statement to police (Tcpt, 1 June 2015, pp 2706, 2709).
In discussions with the judge about a good character direction, Mr Stanton argued that his cross-examination of Valsamakis and Lamella was such that the jury would be prejudiced against any good character direction given in respect of Cranney, as that cross-examination revealed aspects of his character that didn't go to good character, i.e. that Cranney had accepted money from those witnesses so that he would "keep quiet" about what he learnt had occurred (Tcpt, 1 June 2015, pp 2708, 2710). It was submitted that a forensic decision had been made not to ask for a good character direction, and that the limited good character direction to which Cranney would be entitled would make the defence case regarding Cranney's conduct "a farce" (Tcpt, 1 June 2015, p 2712).
Mr Djemal submitted that Huynh would not be entitled to a good character direction due to his custodial history and his record as both a juvenile and adult. He said that these issues were deliberately not raised and evidence was not called relating to character for this reason. Mr Djemal argued that the comments regarding Huynh's TAB tickets and the suggestion that money could be laundered through them reversed the onus of proof, and that such an assertion had never been put to Huynh in cross-examination. Further, it was submitted that in the context of all the relationship evidence adduced in the case against Huynh, that the Crown Prosecutor's comments concerning character could not be cured by direction and that these comments were "fatal" to Huynh having a fair trial (Tcpt, 1 June 2015, p 2716).
The Crown Prosecutor contended that good character had been raised indirectly by Huynh and by Cranney. The Crown Prosecutor said that Cranney's case was that he was a customs officer of long-standing. As to Huynh, the Crown Prosecutor argued that Huynh's evidence suggested that he had "a tendency on his part to participate in offences of this kind, and that's what he says, and I had nothing to do [with] pseudoephedrine in 2011, but, more importantly, that was the same in 2012. So to suggest that Mr Huynh didn't go anywhere nearing raising character, he is completely wrong…" (Tcpt, 1 June 2015, p 2718).
The Crown Prosecutor informed the judge that the Crown was prepared to accept for the purposes of the trial that each of the applicants was entitled to a good character direction.
Following further argument, the judge delivered a short judgment during which his Honour said (Judgment , 1 June 2015, p 1-2): "To say that what has occurred is regrettable is an understatement, to say that it has given rise to circumstances which necessarily amount to a miscarriage of justice and compel the conclusion that the jury should be discharged at this point, after seven weeks of evidence, is a question on which minds might reasonably differ. Having given the matter careful consideration I form the view that on balance any damage which may have been done by the Crown address is adequately met by appropriately framed directions in respect of which the accused will have the opportunity of input. In those circumstances it seems to me that in the interests of justice, bearing in mind all the various interests which that expression comprehends in the circumstances favour the continuation of the trial".

[2]

The judge's directions to the jury

During his summing-up, the judge gave the following direction concerning character (SU 20-21): "You might recall that in the course of his address Mr Crown indicated to you that there is no evidence that either of the accused has ever previously been in trouble with the law. You should therefore accept that at the time of the relevant events the accused were in that sense both of good character. The law provides that a jury is entitled if it so chooses to take an accused's good character into account in his favour on the question of whether the Crown has proved guilt beyond reasonable doubt. The fact that an accused is a person of good character may be relevant to the likelihood of him having committed the offence or offences alleged. It is a matter entirely for your determination but if you consider it appropriate you may take into account the good character of each of the accused by reasoning that such a person is unlikely to have committed the offence in Mr Huynh's case or offences in Mr Cranney's case, charged by the Crown. Whether you do reason in that way is entirely a matter for you. In the case of Mr Huynh it goes a little further because in circumstances where he chose to give evidence, a jury if it so chooses can also use the fact that he is a person of good character to support his credibility. You might reason that a person of good character is less likely to lie or give a false account in giving evidence before you. Again whether you reason in that way is entirely a matter for you. None of what I have just said means that good character provides the accused with some kind of defence. It is only one of the many factors which you are entitled to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused on each charge relevant to them. As you separately consider each count for each accused, what weight you give to the fact that he is a person of good character is completely a matter for you but you may take that fact into account in the ways I have indicated to you. You should disregard Mr Crown's submission that simply because Mr Huynh is running around with people that he knows to have been involved in criminal activity that you would on that account not accept that he was a person of good character. You must not reason that simply on account of the fact that he associated with people he knew to be involved in criminal activity that he must have been the sort of person who would himself commit crime. It would be wrong to reason in that way. You must determine the question whether he is guilty or not guilty of the offence charged against him solely on the evidence before you."

[3]

Argument

Ms Bashir argued that the consequential effect of the Crown Prosecutor's address to the jury was that if Huynh was a person of bad character because he associates with criminals then that must have been the same for Cranney as he associated with Valsamakis, Lamella and the others. Ms Bashir said that the jury might of its own volition come to that factual finding regardless of whatever the Crown Prosecutor said in his closing address.
Ms Bashir submitted that the effect of the judge's directions to the jury was that the Crown Prosecutor's address was left standing even though Cranney had not called evidence of prior good character. Moreover, Huynh, who was of prior bad character, was afforded a good character direction on both limbs, whereas Cranney was not, even though the Crown Prosecutor had raised the prospect that character might be taken into account in both respects for Cranney in his closing address. It was pointed out that Huynh was also the beneficiary of a direction that the jury should disregard the Crown Prosecutor's submission in relation to Huynh running around with people he knew to have been involved in criminal activity, that he was not a person of good character whereas Cranney did not have such a direction. Ms Bashir contended the end result was that Cranney was left in a worse position than his co-accused.
Mr Dhanji contended that the judge's good character direction was problematic for the following reasons: 1. Apart from his Honour's direction to the jury that it should "accept" that Huynh was a person of good character, there was no evidence of good character. 2. The direction was misleading. To suggest that Huynh was a person of good character was a fiction. 3. The jury were directed that good character "may be relevant to the likelihood of [Huynh] having committed the offence." Mr Dhanji submitted that this required the jury to determine if good character was relevant which was an impossible task. As there was no evidence of good character, there was nothing that the jury could use to decide whether it was appropriate to take Huynh's "good character" into account in the manner suggested by the judge. 4. The directions reminded the jury that Huynh was associated with people he knew to be involved in criminal activity.
Another complaint was that his Honour's direction was not given until 4 June 2015, a week later than the Crown's address.

[4]

Consideration

I accept Ms Bashir's submission that r 4 does not apply as the applicants' trial counsel applied for a discharge of the jury. Furthermore, the Crown accepts that the Crown Prosecutor's submission should not have been made.
The judge had the discretion whether to discharge the jury. The judge acknowledged that it was regrettable for the Crown Prosecutor to have raised character. His Honour considered that any potential prejudice to the applicants could be met by appropriately framed directions to which the applicants would have "the opportunity of input".
Although the trial judge will usually have a better appreciation of the significance of the matters complained of in the context of the trial, the question for this Court is: "whether…the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice": Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at p 441.
It is the case that the Crown Prosecutor's remarks were made on 28 May 2015 and the judge commenced his summing-up on 4 June 2015 at the conclusion of Mr Stanton's closing address. The applications for discharge were not made until 1 June 2015 and the trial was delayed for two days as it appears a juror was unwell. Notwithstanding the delay, the judicial directions given by his Honour dealt with the matters of potential prejudice plainly and with firmness.
The Crown Prosecutor's address was neither left standing nor were the directions misleading nor meaningless. In my view, the members of the jury could not have been left in any doubt that they were to accept that each of the applicants were of good character, which they were entitled to take into account in the applicants' favour in determining whether the Crown had proved the offences beyond reasonable doubt. Both of the applicants received the benefit of a good character direction to which they were not otherwise entitled.
There is no substance in Cranney's complaint that he was disadvantaged by his Honour's directions. The simple answer to his complaint of disadvantage is that Huynh gave evidence whereas he neither entered into a record of interview nor testified during the trial. Furthermore, the Crown Prosecutor's remarks about Huynh running around with people that he knew to have been involved in criminal activity were confined to Huynh which the judge directly addressed in his instructions to the jury. His Honour's directions were not required to be identical for Cranney and Huynh.

[5]

Ground 8 (Cranney): The verdicts on the bribery offences the subject of Counts 4 and 5 were unreasonable, or alternatively the trials on the bribery offences miscarried

As Ms Bashir's submission is founded upon the success of either Grounds 3 or 4, the disposition of this Ground may be briefly stated.
It was the Crown case that if the jury was satisfied of Cranney's guilt in respect of the conspiracy offences, it would automatically follow that the jury would be satisfied beyond reasonable doubt that Cranney had dishonestly agreed to receive a benefit with the intention that his duties as a customs officer would be influenced. His Honour confirmed the Crown's position in his written instructions and summing-up to the jury. Cranney was acquitted on counts 1 and 3, but found guilty on counts 4 and 5.
Ms Bashir's submission that it was not open to the jury to find Cranney guilty of count 5 on the basis of questions put to Lamella in cross-examination which Lamella did not accept, is undoubtedly correct. However, the Crown case was not premised on these answers. Having made my own independent assessment of the whole of the evidence against Cranney, it was open to the jury to be satisfied beyond reasonable doubt that Cranney had committed the bribery offences being counts 4 and 5.
Although Ms Bashir appeared to place some reliance on the success of Ground 4, the principal contention in that ground is not relevant to the present argument. In any event, Grounds 3 and 4 have not been upheld.
Accordingly, Ground 8 has not been established.

[6]

Ground 6 (Huynh): His Honour erred in admitting evidence of the appellant's involvement in the failed importation in December 2011 as 'relationship evidence'

Before the jury was empanelled, Huynh applied for a separate trial and objected to certain evidence which the judge placed into two categories. The first category was evidence of Huynh's participation in activities during September to December 2011, which the judge described as being "directed to the attempted fulfilment of a conspiracy the subject of count 1, with which he has not been charged" (Judgment, 26 March 2015, p 1).
His Honour described the second category as being evidence concerning "Huynh's involvement in connection with a failed importation of pseudoephedrine from China in early to mid-2011" (Judgment, 26 March 2015, p 1).
The judge decided to deal with the objections to the evidence before determining Huynh's application for a separate trial.
Cranney was charged with count 1 but Huynh was not. Count 1 was a charge of conspiracy to import a commercial quantity of pseudoephedrine between about 1 September 2011 and about 21 December 2011. Cranney, Lamella, Valsamakis, Napoli, D Harb and others were alleged to be members of this conspiracy.
A convenient summary of the evidence that was said by the Crown to be relevant to the first category is found in paragraphs 23 to 57 of a document entitled, Summary of the Crown case ("the Crown case statement"). Upon the Crown case, the evidence of Huynh's participation in activities that were directed to the attempted fulfilment of the conspiracy, the subject of count 1 included: 1. intercepted telephone calls and text messages between Lamella and Napoli during September to November 2011, in which they arranged to meet with Huynh, discussed Huynh's attempts to source "gear" overseas and later their increasing frustration with him; and 2. several meetings between Lamella and Huynh, either on his own or with Napoli, during September to November 2011 and Lamella's evidence as to what occurred at those meetings; and 3. meetings between Lamella and Napoli; and 4. intercepted calls and text messages between Huynh and Lamella during the period of 11 October 2011 to 19 November 2011 arranging or attempting to arrange to meet up.
The principal objection raised by Huynh to the first category of evidence was that it gave rise to a danger of unfair prejudice to him which outweighed any probative value that it might have. Huynh submitted that it should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) ("Evidence Act"). The Crown submitted that the evidence was relevant in the case against Huynh, to show precisely how it was that he became involved in the 2012 conspiracy (count 2). It was the Crown case that the evidence gave appropriate context to the genesis of count 2 and as background to the relevant relationships. The Crown contended that the evidence related to events that occurred prior to the critical text message sent by Huynh to Lamella on 27 December 2011 in which Huynh told Lamella that he has got "good news". His Honour described that text message "to arguably be, the catalyst for the formation of the count 2 conspiracy" (Tcpt, 26 March 2015, p 2).

[7]

The judgment on voir dire

After hearing argument on the voir dire, the judge delivered judgment.
In respect of the first category of evidence, his Honour said (Judgment, 26 March 2015, p 4-5): "The extent of its probative value may be assessed by analysing the extent of its capacity, either in its own right or in addition to other evidence that will be adduced by the tendering party, to rationally affect the assessment of the probability of the existence of facts in issue. Either way, it seems to me that evidence which demonstrates the nature and extent of the relationships between the relevant individuals, which demonstrates the genesis of the object of the conspiracy and which demonstrates what each of the individuals is equipped or prepared to do towards fulfilment of those objects, is probative in support of the Crown case on the count 2, conspiracy, and has the capacity to be substantially so regarded by a jury. This is precisely what the first category of evidence illustrates. It goes much further than whatever might be achieved in proof of the Crown case by simply having Lamella give his understanding of the meaning of the December 27 communication. It also goes, in anticipation, to serve as a corroborative foundation to the evidence otherwise expected to be given by Lamella. As Brennan J said in Harriman at paragraph 6: 'If as a matter of human experience the evidence tends to establish the events charged, or a fact in issue, otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible.' In my view the first category of evidence is admissible as being relevant in the way I have outlined. It seems to me that this is precisely the sort of evidence with which the line of cases, commencing with Harriman v The Queen (1989) 167 CLR 590 especially at 594 per Brennan J and applied in The Queen v Quach (2002) NSWCCA 519 is concerned. Each of those cases provides an example of a case where conversations or conduct relating to uncharged matters were received into evidence in order to establish the true nature either of the charged transaction or of the relationships between those involved. That is essentially what is sought to be done by this evidence in the present case. The evidence does not merely show a propensity to engage in criminal conduct. Indeed, on one view, given the way it is put by the Crown, it does not necessarily suggest prior criminal conduct or propensity at all. It is evidence which has a high probative value going directly to demonstrating, by way of appropriate contextual underpinning, the genesis and the existence of the count 2 conspiracy and the nature and scope of the agreement and the roles it was intended or anticipated that each of its participants might contribute towards its effectuation."

[8]

The directions to the jury

Relevantly, the judge instructed the jury to approach the evidence as follows (SU 21-22): "In relation to the evidence that has been led against Mr Huynh there is an additional matter I should mention and that concerns what you have heard described as the relationship evidence. You will be well aware that the only offence charged against Mr Huynh is that he participated in the conspiracy in 2012 that is the conspiracy involving the March and June importations. The evidence led by the Crown in relation to Mr Huynh include some evidence which predates the charged dates of that conspiracy. In particular, as I have already mentioned, you will recall there is the evidence of the meeting in Strathfield at the restaurant, the disputed evidence concerning what was discussed and who was present at that meeting. There is also evidence, again disputed, concerning his presence at the meeting or meetings, depending on whose version you accept, at the Pine Inn in relation to proposed importations in 2011. There is also evidence of communications, variously between Mr Lamella, Mr Napoli and Mr Huynh in late 2011 in the lead up to the failed importation involving Joseph Harb, and you will no doubt recall those communications. All that evidence the Crown has led concerning activities and communications involving Mr Huynh was placed before you as evidence of what might be best described as background to the 2012 conspiracy charge. Mr Huynh is not charged with any offence other than the 2012 conspiracy. He is not charged with any offence concerning any of his conduct prior to 2012, and the evidence involving Mr Huynh prior to 2012 is led to demonstrate essentially the nature of the relationships between Mr Huynh and Mr Napoli on the one hand, and Mr Huynh and Mr Lamella on the other. That is why this evidence was placed before you and how the Crown relied upon it in proof of the 2012 conspiracy charge, and that is the only reason that the evidence is before you and you cannot use it for any other purpose. Whether you give it the significance that the Crown asks you to place on the evidence is a matter for you, but that is the only relevance it has to your deliberations."

[9]

Argument on appeal

Huynh submitted that the judge did not explain how the admitted evidence affected the likelihood of the existence of the conspiracy in 2012. As to his Honour's determination that the evidence was relevant in the manner contemplated in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 ("Harriman"), Huynh argued that there was nothing particular about the character of his relationships with his alleged co-offenders or his actions in 2011 that gave the evidence the same probative value as contemplated in Harriman. Reference was made to R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 where Harriman was applied. In that case, as in Harriman, the relationship evidence was led to exclude the possibility that the offender's visit to a house where a drug supply occurred was not capable of innocent explanation.
The argument was that if the evidence was used in the manner contemplated by his Honour's direction, it would only further the Crown case if the jury reasoned that because Huynh had behaved in a particular manner in his relationships with his alleged co-offenders in the past, he was likely to behave in the same way in 2012. Huynh said that this amounted to tendency reasoning about which the judge did not direct the jury. Further, the judge was unable to articulate how the evidence may be used as tendency evidence and was not in a position to properly assess its capacity to rationally affect the assessment of the probability of the existence of a fact in issue, such that it could be said that the tests provided by ss 97 and 101 of the Evidence Act were properly applied.
The Crown submitted that his Honour's reasons demonstrated that the evidence was highly probative of whether Huynh was a party together with Lamella, Napoli and others to the conspiracy in count 2. This was the central issue in the trial.
The Crown argued that the circumstances in Harriman could be directly related to the circumstances of the case. Further, the probative nature of the evidence in Harriman did not depend solely on the nature of the relationship between the offender and the co-offender outside the commission of the offence.
In a further submission, the Crown contended that his Honour's direction to the jury did not invite tendency reasoning.

[10]

Consideration

As emphasis was placed in submissions on the decision of the High Court in Harriman, it is worthwhile re-visiting the principles established in that case. In Harriman, the accused and another co-offender (the chief prosecution witness) had travelled to Thailand together. The co-offender then travelled to London and posted heroin to addresses in Australia. Harriman was charged with five counts of being knowingly concerned in the importation of heroin contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The High Court unanimously admitted evidence of Harriman's prior involvement with the co-offender in the sale of heroin.
In identifying the principles that he would apply in admitting the evidence, Brennan J said at 594: "However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence , the evidence is admissible. I would therefore respectfully agree with McHugh J that evidence of events which are part of the res gestae is admissible - and will usually be admitted - even if that evidence reveals the commission of an offence other than the offence charged.".
This is the passage of Brennan J's judgment that his Honour referred to in his judgment on the voir dire.
Both categories of the evidence revealed the true nature of the relationship between Huynh, Napoli and Lamella. As his Honour explained when referring to the second category (see [312] above): "...[the evidence] informs an appreciation of their particular roles in their dealings with one another. In particular in that respect it exposes [Huynh] as the person apparently primarily responsible for sourcing the pseudoephedrine in Asia and identifying and recruiting couriers"
Both categories of evidence pointed to a substantial involvement by Huynh in the planning of importations of pseudoephedrine into Australia in 2011. All of this evidence could support an inference of his participation in the conspiracy to import pseudoephedrine in 2012. Furthermore, the evidence supported the Crown case on the significance of the text messages between Huynh, Lamella and Napoli; the various meetings that they attended; the intercepted telephone call between Huynh and an unknown Vietnamese male on 19 January 2012; Huynh's trips to Vietnam; and the large payments into Huynh's bank account.

[11]

Ground 8 (Huynh): A miscarriage of justice occurred as a result of impermissible questions asked by the prosecutor

[12]

Argument

Huynh directed this Court's attention to the following questions that had been put to him by the Crown Prosecutor asking if Lamella was lying (Tcpt, 25 May 2015, p 2443; Tcpt, 25 May 2015, p 2446): "Q. He has made it up, has he? A. I didn't say he made it up. Q. Did he make that up? A. Well, I didn't tell him to. Q. So he has made it up? A. You have to ask Freddy that. Q. So he made it up? A. Of course. Q. So if Lamella said that, he is lying is he? A. Well, he must be."
Huynh submitted that those questions were impermissible and breached the principles in Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [8]-[11] ("Palmer") and R v Rich (1998) 102 A Crim R 165 ("Rich").
Reference was also made to the rhetorical question asked in the Crown Prosecutor's closing address (Tcpt, 27 May 2015, p 2610): "Is he telling the truth when he says I don't recall, what I thought when I received the message? It was a prime opportunity, you might think if Lamella was some malicious person trying to incriminate Huynh, a person who was not involved in any importation. It was a perfect opportunity to say, oh yeah".
Huynh contended that the Crown Prosecutor was bolstering Lamella's testimony with his own personal opinion.
Another complaint was that the Crown Prosecutor asked him the following in cross-examination (Tcpt, 25 May 2015, p 2416): "Q. Where did you work at the time? A. I didn't work. Q. You didn't work, is that right? A. Yeah."
Huynh argued that these questions were highly prejudicial and irrelevant. Huynh's contention was that they could only go to character and no leave had been sought which was a breach of s 112 of the Evidence Act.
It was submitted that as Huynh's credibility was central to the jury's deliberations, any undermining of it by impermissible questions would have impacted adversely on his credibility. R v Soto-Sanchez (2002) 129 A Crim R 279; [2002] NSWCCA 160 at [29], [33] and [44] ("Soto-Sanchez") was cited as was Stanoevski v The Queen (2001) 202 CLR 115; A Crim R 247 at [58] ("Stanoevski").
Huynh accepted that r 4 applied, but submitted that leave should be granted.
The Crown said that he would not endorse the type of questions reflected in the passage of the Crown Prosecutor's cross-examination at [332] above. Nevertheless, the Crown's submission was that these questions by the Crown Prosecutor did not occasion a miscarriage of justice. The Crown argued that the impugned portion of Huynh's cross-examination did not tend to deflect the jury from a proper assessment of the Crown witnesses and of Huynh. Furthermore, the questioning was said by the Crown not to give rise to an explicit or implicit reversal of the onus of proof.

[13]

Consideration

There is no substance in Huynh's complaint concerning the rhetorical question asked by the Crown Prosecutor that is quoted at [334] above. It is not impermissible for a Crown Prosecutor to place before the jury for their consideration matters that are relevant to the assessment of the honesty and reliability of a Crown witness. After all, they are the judges of the facts. The Crown Prosecutor was not placing before the jury his own personal opinion. If he had done so, such an opinion would have been irrelevant - see Hughes v R [2015] NSWCCA 330 at [273]; KNP v R (2006) 67 NSWLR 277; [2006] NSWCCA 213 at [53] - but that is not what occurred here.
As to the Crown Prosecutor's cross-examination quoted at [336] above, Huynh's evidence-in-chief included his TAB and casino winnings. The cross-examination was not about character but directed to the veracity of Huynh's testimony. Leave of the Court was not required pursuant to s 112 of the Evidence Act. The questions were neither irrelevant nor impermissible. The principles considered in Soto-Sanchez and Stanoevski do not apply in these circumstances.
There is merit in Huynh's complaint about the questions he was asked by the Crown Prosecutor in the passage quoted at [332] above. Huynh should not have been invited to express an opinion as to whether Lamella was lying. As has often been stated, the witness' opinion is irrelevant. Whether or not Lamella was lying was a matter for the jury: R v Leak [1969] SASR 172 at pp 173-174; Rich at p 169.
However, the impact of the Crown Prosecutor's questions is to be considered in the context of how the trial was conducted prior to Huynh's evidence, which was given on the 30th day of the trial. Lamella and Valsamakis had been vigorously cross-examined by counsel for both applicants. It would have come as no surprise to the members of the jury that both Huynh and Cranney asserted that Lamella and Valsamakis were lying. This was not a case where there was no direct evidence of an actual motive to lie, or no evidence from which a specific motive to lie could reasonably be inferred: see R v E (1996) 39 NSWLR 450 at [26]; Palmer at [7]-[9]. Both Lamella and Valsamakis had benefited from discounts in their sentences on the condition that they gave evidence. Other than this motive to lie, further reasons for lying were raised. During his directions to the jury, the judge said (SU 24-25): "There may be all sorts of reasons why false evidence has been given by such a witness and it is not for the accused to establish the reason or reasons why a witness may have been lying. Experience has also shown that once such a witness has given a version to the police implicating an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue. Again you heard Mr Lamella and Mr Valsamakis cross-examined and it was suggested to them that they were in precisely that position. Finally in relation to the evidence of these witnesses, Mr Lamella and Mr Valsamakis in particular, a number of motives for lying or possibly lying were explored in their cross-examinations and in particular it was suggested they bore some malice or ill feeling towards Mr Cranney. You should bear in mind that there may be unknown motives or motives which cannot be explored in cross-examination which a witness may have for lying."

[14]

Ground 9 (Huynh): A miscarriage of justice occurred as a result of His Honour, the trial judge's failure to ascertain precisely what use was to be made of the asserted lies

[15]

Argument

Huynh submitted that the judge did not ascertain from the Crown Prosecutor the use to be made of what was said to be a deliberate lie in his closing address. The contention was that his Honour should have ascertained from the Crown if the asserted lie was going to a consciousness of guilt or to credibility. Huynh referred to authorities which state that the topic of lies must be approached with care. Amongst the authorities cited was Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 ("Edwards"); Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 ("Zoneff") and R v Healy [2008] NSWCCA 229.
Huynh argued that the need for an Edwards or Zoneff direction was of fundamental importance to Huynh receiving a fair trial. Huynh accepted that r 4 applied but submitted that leave should be granted.
The Crown submitted that the Crown Prosecutor did not make any express submission that the identified lies should be treated as consciousness of guilt. Rather, it was a general submission that clearly went to Huynh's credibility. The Crown argued that there was no danger that the jury would use the evidence inappropriately as an admission of guilt nor was there a risk of misunderstanding about how the suggested lies could be used. The Crown contended that no miscarriage of justice occurred.

[16]

Consideration

The focus of Huynh's complaint is the following passage in the Crown Prosecutor's address to the jury (Tcpt, 28 May 2015, p 2690): "In 2011 to 2012 he said to you he had nothing to do with pseudoephedrine. I'd submit to you that that was a deliberate lie. The 9 March visit by the Lebanese men in the early hours of the morning was again a deliberate lie to cover what was plainly evidence in the Crown case which associated him directly with the pseudoephedrine imported…"
What was said by the Crown Prosecutor was made in the course of raising issues as to the credibility of Huynh's evidence. At no time did the Crown rely on what was said to be a deliberate lie as indicating a consciousness of guilt. No direction in relation to lies was sought by Mr Djemal. This provides a strong indication that there was no risk of misunderstanding on the part of the jury about the significance of the possible lie: FP v R [2012] NSWCCA 182 at [148]; Ahmed v R [2012] NSWCCA 260 at [45].
The judge was not required to ascertain from the Crown Prosecutor the use to be made of the asserted lie as it was plain that it was relevant to Huynh's credibility. Furthermore, his Honour was not obliged to give a direction to the jury concerning the asserted lie. As was said in Dhanhoa v R (2003) 217 CLR 1; [2003] HCA 40 by Gleeson CJ and Hayne J at [34]: "[34] It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction (27). Zoneff was said to be an unusual case (28), and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."
No miscarriage of justice has been demonstrated.
Accordingly, I would refuse leave to argue this ground.

[17]

Orders

The orders that I propose are: 1. Christopher Phillip Cranney's appeal against conviction is dismissed. 2. Huy Bao Van Huynh's appeal against conviction is dismissed.

[18]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2017

Legislation Cited (6)

Poisons Act 1966(NSW)

Acts Interpretation Act 1901(Cth)

Criminal Appeal Act 1912(NSW)

Criminal Code Regulations 2002(Cth)

Customs Act 1901(Cth)

Evidence Act 1995(NSW)

Cases Cited (70)

KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Picken v R [2007] NSWCCA 319 Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 Prior v Mole [2017] HCA 10 R (Cth) v Standen [2011] NSWSC 1046 R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v E (1996) 39 NSWLR 450 R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 R v Healy [2008] NSWCCA 229 R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 R v Leak [1969] SASR 172 R v LK; R v RK (2010) 241 CLR 177; [2010] HCA 17 R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 R v Rich (1998) 102 A Crim R 165 R v RK; R v LK (2008) 73 NSWLR 80; [2008] NSWCCA 38 R v Soto-Sanchez (2002) 129 A Crim R 279; [2002] NSWCCA 160 R v Trudgeon (1988) 39 A Crim R 252 Raumakita v R (2011) 210 A Crim R 326; [2011] NSWCCA 126 Sanchez v R (2009) 196 A Crim R 472; [2009] NSWCCA 171 Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 Sio v R (2015) 249 A Crim R 533; [2015] NSWCCA 42 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Standen v DPP (Cth) (2011) 218 A Crim R 28; [2011] NSWCCA 187 Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211 Stanoevski v The Queen (2001) 202 CLR 115; A Crim R 247 Tekely v R; Nagle v R [2007] NSWCCA 75 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Christopher Phillip Cranney (Applicant) Huy Bao Van Huynh (Applicant) Regina (Respondent) Representation: Counsel: Ms G Bashir SC, Mr C McGorey (Applicant Cranney) Mr Huynh (Self-Represented) Mr Crowley, Ms P McEniery (Respondent)

Solicitors: Bilias and Associates (Applicant Cranney) Blair Criminal Lawyers (Applicant Huynh) Solicitor for Commonwealth Public Prosecutions (Respondent) File Number(s): 2013/043707 (Christopher Phillip Cranney) 2013/310184 (Huy Bao Van Huynh) Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2015] NSWDC 276 Date of Decision: 20 November 2015 Before: Whitford SC DCJ File Number(s): 2013/043707 (Christopher Phillip Cranney) 2013/310184 (Huy Bao Van Huynh)

Submissions

It is convenient to deal with these grounds together as they relate to the same issue. The applicants' complaint is that the judge erred in directing the jury in relation to the proof necessary to find a conspiracy to commit an offence under s 307.11 of the Criminal Code.
The applicants referred to s 307.11(b)(ii) of the Criminal Code which required proof that an accused believed that another person intended to use the imported pseudoephedrine to manufacture methylamphetamine, whereas the jury were directed by the judge that what was required was a belief that the pseudoephedrine would be used by someone to manufacture that controlled drug. As the misdirection concerned an essential element that the Crown was required to prove in order to establish count 2, the applicants submitted that there had been a miscarriage of justice.
Ms Bashir, on behalf of Cranney, observed that, as to the offence of conspiracy found in s 11.5 of the Criminal Code, the participation in, or being a party to a conspiratorial agreement constitutes the physical element of the offence. As to the mental element, there needs to be proved a common intention that the unlawful offence that is the subject of the conspiracy occurs, and it is insufficient to prove an expectation that the offence will occur. On the offence of conspiracy, it was necessary for the Crown to show an intentional agreement to commit an offence contrary to s 307.11. It was argued that the section was directed to the importer's belief of another person's intention (at the time of the importation).
Ms Bashir submitted that the "principal issue" was left to the jury by the judge in terms of whether the jury was satisfied that Cranney did or did not participate in the undisputed agreement involving Lamella, Valsamakis and others. Ms Bashir contended that the agreement that Lamella, Valsamakis and others were said to have participated in, on the basis that each of the participants believed "…that the substance would be used by someone in the manufacture…" of a controlled drug, did not establish the offence of conspiracy to commit the relevant s 307.11 offence.
The applicants accepted that no objection was taken at trial regarding the judge's directions and that leave was required to argue this ground pursuant to r 4 of the Criminal Appeal Rules.
Ms Bashir submitted that the Crown bore the onus of proving the elements of the offence alleged against Cranney and that the misdirection concerned a central matter of proof which resulted in a miscarriage of justice. Accordingly, Ms Bashir submitted that leave should be granted under r 4 as there was a fundamental misunderstanding of the critical elements necessary in proof of the conspiracy offence by all trial counsel and the judge. Ms Bashir cited Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 at [69]-[69], [73]-[75] (McHugh J) ("Krakouer").

Consideration

In considering these grounds, regard must be had to the provisions of ss 11.5 and 307.11(1) of the Criminal Code as they were in 2011-2012.
Section 11.5, relevantly, was as follows: "11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. Note: Penalty units are defined in section 4AA of the Crimes Act 1914. (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (2A) Subsection (2) has effect subject to subsection (7A). (3) A person may be found guilty of conspiracy to commit an offence even if: (a) committing the offence is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is at least one of the following: (i) a person who is not criminally responsible; (ii) a person for whose benefit or protection the offence exists; or (d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy. (4) A person cannot be found guilty of conspiracy to commit an offence if: (a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) he or she is a person for whose benefit or protection the offence exists. (5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence. …."
Section 307.11 provided: "307.11 Importing and exporting commercial quantities of border controlled precursors (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) either or both of the following apply: (i) the person intends to use any of the substance to manufacture a controlled drug; (ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and (c) the substance is a border controlled precursor; and (d) the quantity imported or exported is a commercial quantity. (2) The fault element for paragraph (1)(c) is recklessness. (3) Absolute liability applies to paragraph (1)(d)."

Consideration

In Sio v R (2015) 249 A Crim R 533; [2015] NSWCCA 42, Leeming JA summarised the legal principles applicable to an unreasonable verdict ground of appeal. His Honour said at [40]: "[40] This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether 'upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen [1994] HCA 63; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13]."
In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the applicant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
Where the sole ground of appeal is that the verdict is unreasonable or cannot be supported, and directions given by the trial judge are unchallenged, the weight given to the jury's advantage of seeing and hearing the witnesses called at trial may be considerable: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]. The position may be otherwise where the jury has been misdirected: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 at [278]. However, as the judge's misdirection in the present appeal did not disadvantage the applicants, the weight to be attributed to the jury's verdicts has not been lessened.
Ms Bashir placed reliance on the decisions of the Court of Criminal Appeal in Trudgeon and Thangavelautham. Neither of these cases concerned the provisions ss 11.5 and 307.11(1) of the Criminal Code. Trudgeon involved a charge of conspiring to supply a prohibited drug under ss 4, 32(4) of the Poisons Act 1966 (NSW). Thangavelautham was charged with an offence of conspiracy to defraud. The accused in each case was alleged to have been a party to the particular conspiracy. The principle that arises from these cases is that for an offence of conspiracy to be made out, it is necessary for the conspirators to have the intention to commit the offence in question. In Trudgeon, Gleeson CJ said at p 256: "…One thing that is clear, however, is that to be liable as a conspirator an accused person must have an intention that (so far as is presently relevant) an unlawful act occur. The agreement consists in the manifestation of a common intention that an unlawful act occur. It does not suffice that there is an expectation that such an act will occur."

Consideration

The terms of count 2 (see [7] above) and the Crown's opening address to the jury made it clear that the Crown case was that there was a single conspiracy between 1 January 2012 to 30 June 2012 which encompassed the March and June importations.
The Crown told the jury (Tcpt, 13 April 2015, pp 15-16, 18): "The second conspiracy, which is the second count in the indictment, relates to both of the accused. It covers the period 1 January 2012 through to 30 June 2012. There are a number of different people named as being parties to this agreement, and I will come back to them after lunch. In short, as a result of this particular agreement, this conspiracy to commit an offence, four separate importations of pseudoephedrine took place in 2012. On 9 March, 4 June, 5 June and 6 June 2012, four importations of pseudoephedrine, this time in powder form, a much higher purity which you will hear evidence about, and substantially greater quantities. … The 2012 conspiracy, count 2 in the indictment, also alleges the same agreement but there are different parties to it and I'll come to that in a moment. In relation to this particular conspiracy, the 2012 conspiracy, there were four separate importations of the pseudoephedrine."
Neither of the applicants complained to the judge that more than one conspiracy was charged or that the evidence gave rise to latent duplicity in respect of count 2. Nor was anything said about his Honour's failure to direct the jury that it had to be satisfied that the Crown had proved the single conspiracy alleged and not two separate conspiracies relating to the March and June importations. Accordingly, r 4 applies.
The conspiracy alleged by the Crown extended over a period of six months. It is the Crown case that during that time each of the applicants was a party to the conspiracy which had the common design of importing pseudoephedrine into Australia and the four importations were carried out in accordance with that common design. On the other hand, the applicants contend that if the Crown case was to be accepted, it could not establish the single conspiracy charged but two distinct conspiracies. The applicants placed emphasis on Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 ("Gerakiteys").
In Gerakiteys, the applicant was convicted on a charge that he conspired with Harrison and divers others to cheat and defraud divers insurance companies. The particulars furnished by the Crown alleged that nine persons other than the applicant and Harrison were parties to the conspiracy. On appeal to this Court, Street CJ, with whom Nagle CJ at CL agreed, said that there was no evidence sufficient to indicate that all of the nine persons other than the applicant and Harrison had been jointly involved with each other, as well as with the applicant and Harrison, in the conspiracy. Rather, the evidence indicated that, besides an arrangement between the applicant and Harrison, there were four similar arrangements involving various persons who were intending to make fraudulent claims, each on a particular insurance company, but no arrangement to which all nine claimants were parties to defraud all those companies. This Court allowed the appeal by the applicant on the ground, amongst others, that there was no evidence of a conspiracy between eleven persons to defraud a number of insurance companies.

[2003] HCA 40

[2016] HCA 35

(2010) 241 CLR 299

(1996) 186 CLR 427

(2003) 217 CLR 1

(1993) 178 CLR 193

(1990) 170 CLR 104

(1984) 153 CLR 317

(2007) 70 NSWLR 467

(1989) 167 CLR 590

(2006) 67 NSWLR 227

(1998) 194 CLR 202

(2007) 230 CLR 559

(1994) 181 CLR 487

(1998) 193 CLR 1

(1999) 196 CLR 297

(2008) 76 NSWLR 533

(2016) 258 CLR 308

(1996) 39 NSWLR 450

(2010) 241 CLR 177

(2008) 73 NSWLR 80

(1995) 183 CLR 1

(2011) 243 CLR 400

(2001) 202 CLR 115

(1996) 188 CLR 77

(2000) 200 CLR 234

(2006) 67 NSWLR 277

Cited By (8)

Agius v R; Abibadra v R; Jandagi v R; Zerafa v R

CRIMINAL LAW - application under s 78 of the Crimes (Appeal and Review) Act 2001 - general principles - jurisdiction - power to consider application for inquiry - where offender was convicted and sentenced for only offences against a law of the Commonwealth - Huynh v Attorney General

Huynh v Attorney General

Huynh v Director of Public Prosecutions

Huynh v R

McGlone v R

The judge went on to consider the admissibility of the second category of evidence. His Honour noted that second category of evidence was a "little more remote in time" from the charged conspiracy but only by a few months. His Honour observed that the contemplated methodology of the importation was slightly different to that ultimately employed. The judge said (Judgment, 26 March 2015, p 7-8): "The evidence also gives further depth to an understanding of the nature and scope of the relationships between Messrs Huynh, Napoli and Lamella, in particular, and informs an appreciation of their particular roles in their dealings with one another. In particular in that respect it exposes the accused as the person apparently primarily responsible for sourcing the pseudoephedrine in Asia and identifying and recruiting couriers. It seems to me that the differences I have identified between this evidence and the evidence of activity in late 2011, the subject of the first category, are not so great that it can be said that the evidence is not relevant. It is evidence which is capable of rationally affecting the assessment of the probability of the existence of facts in issue in respect of the count 2 conspiracy. That is, it goes to the motives, the relationships, the individual roles and capacities of the various alleged participants in the conspiracy. It goes to the likelihood of the accused being a participant in the count 2 conspiracy. It goes to his state of mind as of January 2012 and beyond. It also goes potentially to support the credit of Lamella who, in respect of the role and conduct of the accused in 2012, indicates that Huynh's contribution to the pursuit of the objects of the conspiracy was to source pseudoephedrine in Asia and to identify and recruit couriers to effect the transportation of the substance. Notwithstanding the differences I have outlined, temporally and methodologically, I do not think it can be fairly said that this evidence does not have the capacity to have substantial probative value."

Turning to his Honour's directions, his Honour provided to the members of the jury in the course of summing-up written directions that relevantly provided with respect to counts 1 and 2: "Conspiracy The offence of conspiracy, which is the offence charged in each of counts 1 and 2 on the indictment, has several elements. In general terms, a verdict of guilty cannot be returned unless the Crown satisfies you beyond reasonable doubt (BRD) of all of the following elements: 1. That within the dates charged, the accused entered into an agreement with at least one other of the persons named in the charge on the indictment. 2. That the object of the agreement was the commission of the offence of importing a border controlled precursor in an amount exceeding a commercial quantity. Put another way, that by their agreement, the accused and at least one other party to it, intended: a) to import pseudoephedrine; b) in an amount exceeding 1.2kg. 3. That the accused and at least one other person to the agreement believed that the pseudoephedrine would be used by someone to manufacture a controlled drug, in this case methylamphetamine. … In the context of these three cases (the trial of Mr Cranney on counts 1 and 2 and the trial of Mr Huynh on count 2) a number of significant matters are not in dispute. … Likewise, it is not disputed that there was, in the period of 1 January 2012 to 30 June 2012, an agreement between Lamella, Valsamakis, David Harb and others including Garcia to import more than a commercial quantity of pseudoephedrine, each of those believing that the substance would be used by someone in the manufacture of methylamphetamine or ice. Again, it is not disputed that overt acts in pursuit of the agreement were committed by at least some of those admitted participants. Assuming you are satisfied BRD as to those matters not in dispute, the principal issue for your determination in the context of these three cases is whether the accused were participants in the agreements charged against them. If you are not satisfied BRD in relation to that question for either accused for any count then the only available verdict is not guilty. If you are satisfied BRD on the principal issue, there is a subsidiary issue about which you must also be satisfied BRD on any count before you could return a verdict of guilty on that count. The additional question is whether the accused believed the pseudoephedrine would be used by someone to manufacture methylamphetamine. … Count 2 - Mr Cranney In respect of count 2, you must return a verdict of not guilty against Mr Cranney unless the Crown satisfies you BRD that he: 1. Intentionally participated with any one or more of the admitted participants in the agreement in the first half of 2012 to import more than a commercial quantity of pseudoephedrine; AND 2. Did so, believing the pseudoephedrine would be used by someone to manufacture methylampetamine. If you are not satisfied BRD as to either or both of those matters the appropriate verdict is not guilty. If you are satisfied BRD as to both matters, the appropriate verdict is guilty. Count 2 - Mr Huynh In respect of count 2, you must return a verdict of not guilty against Mr Huynh unless the Crown satisfies you BRD that he: 1. Intentionally participated with any one or more of the admitted participants in the agreement in the first half of 2012 to import more than a commercial quantity of pseudoephedrine; AND 2. Did so, believing that the pseudoephedrine would be used by someone to manufacture methylamphetamine. If you are not satisfied BRD as to either or both of those matters the appropriate verdict is not guilty. If you are satisfied BRD as to both matters, the appropriate verdict is guilty." [Emphasis added.]

The relevant authorities concerning r 4 were helpfully summarised by Bathurst CJ in ARS v R [2011] NSWCCA 266 at [147]-[148]: "[147] The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]): 'There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted...' [148] Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."

In the case of each applicant, the Crown pointed to the following evidence in support of the Crown's submission that it was open to the jury to be satisfied beyond reasonable doubt of the applicants' guilt: "1) The evidence given by AFP forensics team member Nathan Green that pseudoephedrine, either in the form of powder or from cold and flu tablets, could be used as a precursor chemical in the production of methamphetamine/methylamphetamine (commonly known as "ice"); 2) The evidence given by AFP Detective Sergeant Eduards Stipnieks that the potential yield of methylamphetamine that could be produced from pseudoephedrine seized from the suitcases of the couriers Musa and Garcia (i.e. the 6 June 2012 importations) could be sold at a wholesale price of $250,000 per kilogram and that pseudoephedrine in powder form was valued at approximately $50,000 per kilogram on the black market; 3) The evidence of Customs Officer, Jan Wilson, that: a. as part of their training, Customs Officers are made aware that pseudoephedrine is a precursor to make other narcotic substances; b. the [Applicants] had received training in relation to the presumptive testing, different types of narcotic drugs as well as precursors; 4) Huynh's evidence that he knew that pseudoephedrine was a product that could be manufactured into a controlled drug, made into methylamphetamine and sold at very, very high profits; 5) The evidence given by Lamella that: a. as a customs officer he had received training in relation to prohibited items including drugs and border controlled precursors and through that training he knew pseudoephedrine could be manufactured into methylamphetamine ('ice'); b. he had pleaded guilty to an offence of conspiracy to import pseudoephedrine in 2009 and 2010, in respect of which he knew that the pseudoephedrine imported would be manufactured into methylamphetamine and he had intended or believed that the pseudoephedrine involved in those importations would be manufactured into methylamphetamine; c. in relation to both the attempted pseudoephedrine importations in December 2011 (i.e. count 1) and the importations in 2012 (i.e. count 2) he held the same intention or belief that the pseudoephedrine involved in those importations would be manufactured into methylamphetamine; d. in relation to the December 2011 attempted importation, [the applicants] had spoken to Valsamakis… and David Harb about the monies they wanted to make and that they all wanted to make at least $100,000 from the import; e. before the 9 March 2012 importations he had conversations with Napoli and Huynh around January and February 2012, in which: i. he was told that 'Pete (i.e. Huynh) had sourced pseudoephedrine and that's what would be coming back with the couriers'; ii. Napoli was going to organise the couriers; iii. they each agreed that it would be 10 kilos per bag; f. before 9 March 2012 importations he had spoken to Napoli about the money they could expect to receive from the importations, during which: i. he told Napoli that he, 'Chris, Valsa and David Harb' (i.e. … Chris Cranney, Paul Valsamakis and David Harb) all wanted '$100,000 each'; ii. Napoli told him he couldn't afford to pay that much but could afford to pay $240,000 for the four of us; g. later, but before the 9 March 2012 importations, he had also spoken to Napoli and Huynh together and they had each told him they could only afford to pay him $240,000; h. he had subsequently told each of Valsamakis, Cranney and David Harb that 'Pete and Bruno' were only capable of paying $50,000 each to each of them; i. following the 9 March 2012 importations he received cash from Napoli on two occasions and on 26 March 2012 he gave each of Cranney and Valsamakis $55,000 of the cash and he also gave David Hard $45,000 and he kept about $75,000 for himself; j. between 7 and 26 June 2012 he and Cranney met and exchanged text messages to discuss the outstanding payment for the June importations. This included Lamella and Cranney meeting at the food court at the airport; k. he then contacted Napoli and went to his house and said to him 'my guys wanted their money now'. Napoli told him he had been 'stood over', could only afford to pay Lamella $380,000 and that he and "Pete" were only making $20,000 each; l. he, Cranney and Valsamakis later met at the food court at the airport to discuss that they would only be getting $380,000; m. on 27 June 2012, he received approximately $380,000 in cash from Napoli; n. after receiving the cash from Napoli he gave $100,000 to Valsamakis and $95,000 to David Harb and $85,000 to Cranney; 6) The evidence of Valsamakis that: a. he expected to receive $100,000 for his involvement in the 9 March 2012 importation because of an agreement with Lamella and Cranney; b. the money he, Cranney and Lamella expected to receive for the 9 March 2012 importation was to be paid out of the moneys realised as a result of the sale of the imported pseudoephedrine; c. Lamella had told him and Cranney that they would be paid once the pseudoephedrine had been sold; d. as a Customs officer he: i. was aware of the substance pseudoephedrine and knew that it was an ingredient in making drugs, including 'ice', as he had learned this in his training; ii. understood that pseudoephedrine could make a lot of drugs and make a lot of money and his rough estimate was around the $200,000 mark per kilogram of raw (unmanufactured into a drug) pseudoephedrine; e. Cranney had also told Valsamakis and Lamella that he had done a bit of 'background hunting down of prices' and found out that once the drug was manufactured it could be worth millions; f. he received approximately $55,000 from Lamella after the 9 March 2012 importation; g. in relation to the June importations, he discussed with Lamella and Cranney that they would each get $100,000 for each day per importation and that Lamella had said they would also get paid the $50,000 owing from the 9 March 2012 importation; h. between the March and June importations, Cranney had told him that he had been sourcing prices for pseudoephedrine and that the possible amounts to be imported were worth far more than $100,000 each and they should be paid more; 7) The evidence of telephone contact between Huynh and Napoli on the day of the 9 March 2012 importation, in which they made arrangements for the transportation and delivery of the bags containing the imported pseudoephedrine to others, which included: a. at 7.20am Napoli sending a SMS text to Huynh telling him that he would see him shortly; b. at 7.55am Huynh calling Napoli on his mobile and telling him to 'put one in the back seat' as it would not fit in the back; c. at 8.02am Huynh sending a SMS text to Napoli telling him to ring Huynh as soon as he was finished. This was before Napoli drove into the multistorey carpark at Sydney Airport to meet with David Harb and collect the two couriers bags; d. at 8.30am Huynh calling Napoli and asking him if he was on his way back. Napoli told Huynh that he would ring him; e. at 9.22am Napoli calling Huynh and asking him if he wanted to go for breakfast; 8) The evidence of David Harb that: a. on 9 March 2012 he removed two suitcases from the Thai Airways flight that arrived early in the morning and drove the suitcases to a staff carpark at the airport where he met with Napoli and handed the suitcases over to Napoli who then put them into his vehicle; b. before 4 June 2012, Lamella had told him that he would not be dropping the bags off in the carpark and that it was now happening completely outside the airport. Lamella drove him to a dead-end street in the back of Tempe and told him 'Someone will be waiting for you there and just drive there, drop the bags off and come back'; c. on 4 June 2012 he removed suitcases from the Thai Airways flight and drove the suitcases out of the airport to a pre-arranged location at Tempe where he met Napoli, who took the two bags out of his vehicle and put them into his van; d. on 5 June 2012 he removed a suitcase from the Thai Airways flight and drove the suitcase out of the airport to the pre-arranged location at Tempe where he met Napoli, who took the bag from his vehicle; 9) The evidence of deposits of large amounts of cash into Huynh's bank accounts during the period 3 July 2012 up to and including 28 August 2012, at a time when [Huynh] was overseas. Huynh had departed Australia on 2 July 2012 and did not return until 28 August 2012; 10) The use by Huynh, while giving evidence, of the term 'pseudo', from which the jury were entitled to infer a level of familiarity with the substance; 11) The evidence of Domenico Rositano, forensic accountant with the AFP, regarding the spending patterns of Cranney and his access to cash amounts from unknown sources during the periods 1 January 2012 to 30 March 2012 and 1 June 2012 to 30 December 2012. In particular, that for the month of June 2012 Cranney had access to unknown source funds of $8,820.50, for July 2012 $6,300.00 and for August 2012 $2,882.25." [Footnotes omitted.]

The Crown's summary is to be approached with caution. Although most of the evidence had been admitted against both of the applicants, some of the evidence had been admitted only against Cranney and some only against Huynh. The judge carefully directed the jury that they were obliged to exclude from their deliberations, concerning a particular accused, the evidence that had been admitted only against the other accused. His Honour went on to say (SU 8-9): "To a large extent I think it is self-evident which evidence relates solely to one or other of the accused. Straight forward examples of that include for example the bank statements seized from Mr Huynh's house after he was arrested, they are admitted solely in the case against him not against Mr Cranney. Similarly evidence concerning payments made by Mr Cranney in the period following the distribution of money in late June are admitted as evidence against him but are not evidence in the case against Mr Huynh. Generally I think as I said where there is a distinction it is obvious enough. … There are two substantial exceptions to that which I should identify. The first is what you have heard described as the relationship evidence about which I will tell you more later but that is the evidence that you heard about of Mr Huynh's involvement with Lamella and Napoli in 2011 possibly commencing as early as late 2010 you will recall there is evidence of the meeting with Lamella for the first time at the Korean barbeque restaurant in Strathfield. There is evidence of the meeting or meetings depending on whose evidence you accept at the Pine Inn and you will recall there is evidence of communications and meetings among variously Mr Napoli and Mr Huynh and Mr Lamella in late 2011. That evidence is not admitted against Mr Cranney, it is only admitted against Mr Huynh and it is only admitted for specific purposes about which I will tell you shortly and so naturally enough it being admitted only against Mr Huynh. It is evidence that you will only take into account when considering his involvement in the count 2 conspiracy and you will disregard it entirely when you are considering the cases against Mr Cranney. The second body of evidence that I should mention in this context is Mr Huynh's evidence, he chose as he is perfectly entitled to do, but not obliged to do, to give evidence and that is evidence only in his case it is not evidence to which you will have any regard in considering the charges against Mr Cranney."