Cranney v R; Huynh v R

Background

1. 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."
2. 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.
3. 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.
4. 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).
5. 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).
6. 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).
7. 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).
8. 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.
9. 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".

The judge's directions to the jury

1. 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."

Argument

1. 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.
2. 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.
3. 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.
4. Another complaint was that his Honour's direction was not given until 4 June 2015, a week later than the Crown's address.

Consideration

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.
6. 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.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. Accordingly, Ground 8 has not been established.

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

1. 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).
2. 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).
3. The judge decided to deal with the objections to the evidence before determining Huynh's application for a separate trial.
4. 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.
5. 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.
6. 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).

The judgment on voir dire

1. After hearing argument on the voir dire, the judge delivered judgment.
2. 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."

The directions to the jury

1. 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."

Argument on appeal

1. 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.
2. 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.
3. 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.
4. 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.
5. In a further submission, the Crown contended that his Honour's direction to the jury did not invite tendency reasoning.

Consideration

1. 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.
2. 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.".
3. This is the passage of Brennan J's judgment that his Honour referred to in his judgment on the voir dire.
4. 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"
5. 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.

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

Argument

1. 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."
2. 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").
3. 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".
4. Huynh contended that the Crown Prosecutor was bolstering Lamella's testimony with his own personal opinion.
5. 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."
6. 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.
7. 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").
8. Huynh accepted that r 4 applied, but submitted that leave should be granted.
9. 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.

Consideration

1. 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.
2. 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.
3. 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.
4. 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."

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

Argument

1. 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.
2. 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.
3. 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.

Consideration

1. 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…"
2. 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].
3. 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."
4. No miscarriage of justice has been demonstrated.
5. Accordingly, I would refuse leave to argue this ground.

Orders

1. 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.

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