DPP (Cth) v Ong & Nguyen; R v Ong [2007] VSCA 206

Court of Appeal (Vic)|2007-09-28|Before: BUCHANAN and REDLICH JJA and KAYE AJA

Criminal law - Importing heroin - Aural identification - Warning to jury sufficient in circumstances of the case - Conspiracy - An overt act an element of the offence - Jury unanimously found at least one overt act - Undercover policeman party to agreement.

Criminal law - Sentence - Crown appeal - Importing heroin - Sentences of 15 years' imprisonment with a minimum term of 11 years' imprisonment imposed on a conspirator and a sentence of five years' imprisonment with a minimum term of three years and six months' imprisonment imposed on a recipient of imported heroin not manifestly inadequate.

**1 After a trial in the County Court a jury found Viet Dung Ong and Chi Nguyen guilty of offences arising out of the importation into Australia of heroin. Ong was convicted on a count of conspiring to import into Australia a commercial quantity of heroin, contrary to the provisions of s 233B(1)(b) of the Customs Act 1901. Nguyen was convicted on a count of attempting to possess a prohibited import consisting of a commercial quantity of heroin, contrary to the provisions of s 233B(1)(c) of the Act.

2 After pleas were heard, Ong was sentenced to be imprisoned for a term of 15 years. A minimum term of 11 years was fixed. Nguyen was sentenced to be imprisoned for a term of five years with a minimum term of three years and six months.

3 Ong has sought leave to appeal against his conviction while the Commonwealth Director of Public Prosecutions has appealed against the sentences of Ong and Nguyen.

4 The Crown alleged that Ong's co-conspirators were Krong Lommahadthai ('Krong'), one Tom and undercover police officers of the Royal Thai Police Force designated as Jessie and Eddy. Krong, an inmate of a Thai jail, used mobile telephones to arrange the importation by communicating with his co-conspirators. The Crown alleged that Ong and Krong planned the importation in conversations over a period of some four months. Krong engaged Eddy to collect the heroin in Bangkok and transport it to Australia.

5 Thai and Australian police co-operated to bring the heroin to Melbourne by aeroplane. In Melbourne, Australian federal police officers substituted for the heroin a harmless substance resembling heroin. The heroin was in eight blocks, weighing in all 2.67624 kilograms. On analysis, the purity of the heroin was found to be between 61 per cent and 76 per cent. The weight of pure heroin was 1.8769 kilograms.

6 Eddy and Tom arranged for the delivery of the heroin by Eddy to Tom. Nguyen lived in Sydney and knew Tom. Nguyen told the police that he agreed with Tom he would fly to Melbourne. Tom gave Nguyen money for the air fare and hotel costs. Tom met Nguyen in Melbourne and gave him $10,000 to give to a friend of Tom in exchange for a 'gift'. Tom also gave Nguyen a mobile telephone and $1,500 for himself. Undercover police rang Nguyen on the telephone and arranged to meet him in the Melbourne Zoo car park. Nguyen handed over $10,000 and received a bag containing the substance substituted for the heroin. Nguyen hid the bag in his hotel room and was then arrested.

7 Ong was arrested on the same day. A search of his home revealed a number of mobile telephones and SIM cards, which had been used to communicate with Krong, and a note bearing Tom's name and telephone number.

8 Evidence of the content of intercepted telephone conversations, some in Vietnamese, others in English, was an important part of the Crown case. One of the issues in the trial was whether Ong's was the voice of the person talking to Krong.

9 Raymond Imbriano, a constable in the Australian Federal Police, gave evidence that he listened to a total of 20 hours of tapes of the intercepted telephone conversations and listened to those tapes for some 100 hours. He said he listened to particular telephone conversations many times to understand what the call was about. Many of the conversations were in Vietnamese, and although the witness was studying Vietnamese, essentially he said he could not understand those telephone calls. Imbriano said that in the process of extraditing Ong from Sydney to Melbourne, he was in the company of Ong for about five hours and had numerous conversations with him about Ong's family. Imbriano participated in the taped record of interview with Ong. Imbriano said:**

I believe that the voice that was on the telephone intercepts was the same voice of Mr Ong. He had a very striking voice.

**10 The first ground of Ong's application for leave to appeal against conviction is that the trial judge erred in his directions to the jury concerning how they were to evaluate the evidence of aural identification and the dangers inherent in such evidence.

11 The trial judge's warning as to the dangers attending the evidence of Imbriano was as follows:**

Now, it is important that I give you some warnings about voice identification, particularly where the identifying witness, Mr Imbriano, had no prior familiarity with the accused Ong before he commenced listening to the intercepted phone calls. You should also bear in mind Mr Imbriano himself is not some sort of expert in voice identification, although it is not necessary in itself. He is also saying, you might recall, that he is identifying the voice of someone whose first language is not English, and indeed his English is described as poor. So I warn you that you cannot convict the accused Ong unless you are satisfied beyond reasonable doubt that one of the male voices on the intercepted phone calls is that of Ong.

12 Later in his charge, the trial judge reminded the jury of the criticisms of Imbriano's evidence made by counsel for the applicant. His Honour said:

[Counsel] submitted to you that Mr Imbriano in his evidence of recognition of the voice of Ong, that he had been listening to the phone intercepts and he expected to hear the voice of whom he thought was Ong when he actually met him, so he submitted to you that Imbriano had a pre-conception of what he was or who he was to meet and an identification that he expected to make and he submitted that is not a reliable way of doing it. He then spoke to you about the distortion of the voice of the second male and submitted to you that the distortion that he submits is there on the phone calls where male two is speaking makes it ridiculous for Imbriano to say that he got identified. He then invited you to compare the voices on the record of interview and male two about which you will recollect I have given you a warning.

**13 His Honour emphasised that in determining the identity of the voice, the jury were to have regard to all the evidence. There was a substantial body of evidence, apart from that of Imbriano, bearing on the issue. The contents of the calls, the mode of address and the voices all indicated that the calls were between the same two persons. Four mobile numbers were used to call Krong. Telephone records showed that the SIM card for each of the numbers had been used in a silver Panasonic telephone which the police located on the bedside table in the main bedroom of the applicant's house. Inside that telephone was the SIM card for one of the numbers, which had been used extensively on the eve of the importation to call Krong. Also on the bedside table was a blue Nokia mobile telephone which Ong admitted was his. Inside that mobile telephone was a SIM card, which was generally used by Ong to conduct his business and to call members of his family. Telephone records showed that the SIM card had also been used in the Panasonic telephone and two of the four numbers used to call Krong had been in the Nokia telephone. Stored in the Nokia telephone was Krong's number.

14 False subscriber details for one of the numbers used to call Krong and the SIM card used by Ong in his legitimate telephone calls in Australia were identical. In Ong's wallet were the SIM card and subscriber details for one of the numbers used to telephone Krong.

15 The occasional juxtaposition of innocent telephone calls from the SIM card used for legitimate telephone calls and the calls to Krong and to Nguyen indicated that the same two persons were speaking. For example, on the eve of the importation, there were telephone calls between the disputed voice and Nguyen, who was in police custody, and the disputed voice and Krong's. The calls to Nguyen were made from public telephone booths and the calls to Krong were made from two of the mobile numbers used to call Krong in Thailand. A call was made to Nguyen from a public telephone booth in Homebush West. Five minutes later Ong called his home and spoke to his wife, telling her that he would be home late because he was busy making calls 'back and forth to resolve this evening's matter', that he was in Flemington and that he had to call to a service station to buy new phone cards. The suburb Flemington was next to the phone booth. The telephone intercepts indicated that at the time this call was made, the credit had expired on both the numbers used to call Krong. The credit was recharged and further telephone conversations took place with Krong.

16 Some days before the importation Ong said to one Boateng that he was going to Melbourne that day. This followed numerous telephone conversations between the disputed voice of Krong about whether the person speaking to Krong should travel to Melbourne.

17 A person with an appearance consistent with that of Ong was depicted on a video camera in the vicinity of a public phone booth at a time when the disputed voice made a call from that phone booth to Nguyen, who was in police custody.

18 The foregoing evidence was unchallenged, save that the evidence of federal police officers was that an initial search of Ong's bedroom did not reveal a Panasonic telephone, which was found later by another policeman and the yellow post-it note containing Krong's telephone number bore a fingerprint of a person other than Ong.

19 While in some other jurisdictions evidence identifying a person by his voice is admitted only where the witness is familiar with the voice or the voice possesses a distinctive feature[1], in Victoria, 'there is no rule of law which obliges a trial judge to exclude such evidence in the absence of prior familiarity or distinctiveness, although he may, in the exercise of his discretion, exclude it on grounds of prejudice or unfairness'[2]. Nevertheless, evidence identifying a voice is regarded as carrying a risk of mistake at least as great as evidence identifying a person.[3] A judge must warn the jury as to the dangers of convicting on such evidence.[4]

20 The reliability of evidence identifying a voice depends upon the familiarity of the witness with the voice, the length and volume of the speech said to be that of the person identified and the time that has elapsed between the occasions on which the witness heard the voice to be identified and the voice of the person said to be the speaker. In the present case, the witness had listened for 100 hours to the voice to be identified, had spent five hours in Ong's company speaking to him at length and had participated in a record of interview with Ong. All the conversations which the witness heard or in which he participated took place over a period of less than two months. The witness listened many times to tapes of the telephone conversations a few days before meeting and engaging in extensive conversations with Ong. Effectively, the two voices were heard side by side.[5] The case stands in contrast to one in which a witness identifies a stranger on the basis of brief utterances or conversations.[6] This was not a case of recognition[7] nor strictly speaking was it a case of identification. Nevertheless, Imbriano had considerable advantages normally denied to witnesses who identify a voice as that of the accused.[8] In the circumstances of this case, I consider that the limited warning given to the jury was sufficient. Compact discs containing a recording of the conversations were tendered, setting in context the warnings given to the jury by the trial judge. His Honour was not obliged to put every argument which might be raised as to the dangers of the identification evidence.[9] It is not surprising that counsel at trial saw no injustice or error in the manner in which Imbriano's evidence was treated by the trial judge.

21 Counsel for the Crown relied upon the fact that the evidence of aural identification was a relatively minor part of a larger body of evidence from which it could be inferred that Ong was the person who spoke to Krong. The adequacy of the warning had to be evaluated by reference to the identification evidence and not the other evidence in the case.[10] The relevance of the existence of the other evidence was that the jury was not required to be satisfied beyond reasonable doubt that Imbriano's evidence was correct.[11]**

22 Next the applicant attacked the trial judge's directions to the jury with respect to conspiracy. The first ground relating to this aspect is as follows:

The learned trial judge erred in his directions to the jury concerning the crime of conspiracy in that His Honour did not adequately direct the jury concerning overt acts, in particular the need for the jury to be unanimous in any finding they made of the existence of an overt act including the conspiracy count.

**23 The prosecutor, in her address to the jury, referred to a large number of potential overt acts. The trial judge gave as instances of overt acts the collection of the heroin in Bangkok and its transportation to Melbourne, the telephone calls between Ong and Krong as to the collection and delivery of the heroin and Ong's arrangements to travel from Sydney to Melbourne to liaise with Tom to collect the heroin. His Honour said that there was other conduct that could constitute overt acts. He did not tell the jury that it was necessary that they be unanimous in finding the commission of a particular overt act.

24 The offence of conspiracy in this case is that is created by s 11.5 of the Schedule to the Criminal Code Act 1995 (Cth). Sub-section (2) provides:**

(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

**25 I am inclined to agree with the Queensland Court of Appeal, which said, in obiter dicta in R v Lake,[12] that the jury was required to agree on the same overt act or acts. The commission of an overt act is an element of the offence.[13] The legislature has determined that a simple agreement to commit a criminal offence is not sufficient. Identification of the further action needed to constitute the offence should require jury unanimity.

26 It is not necessary, however, to finally decide the point in order to dispose of this case. It was not in issue that the heroin was imported into Australia and that was an overt act performed pursuant to the agreement. Australian Federal Police and the Thai undercover operatives Jessie and Eddy accompanied the heroin as it was brought by aeroplane to Australia. Their activities constituted a 'controlled operation' within the meaning of s 15H of the Crimes Act 1914 (Cth). Accordingly, the undercover operatives were not liable for the offence of importing the heroin, although the heroin was taken to be goods imported into Australia in contravention of the Customs Act.[14] The question is whether a police officer who imported the heroin was 'a party to the agreement' within the meaning of s 11.5(2)(c) of the Schedule to the Criminal Code Act.

27 Counsel for Ong maintained that Jessie and Eddy were not parties to the agreement to import the heroin, for they acted in accordance with instructions from their superiors and did not act to further the purposes of the criminal enterprise. Counsel said that there was no unity of purpose, no meeting of minds, which was required to make the undercover policemen parties to the agreement.

28 The undercover policemen did intend to import the heroin into Australia, and that constituted a crime despite the fact that the policemen were not liable in respect of its commission. The policemen did not intend that upon importation the heroin would be sold or dealt with in any other unlawful fashion. In my view that did not preclude their status as parties to the agreement constituting the conspiracy. The fate of the heroin after its importation into Australia was not a necessary part of the agreement which created the offence. If a meeting of the minds as to the commission of the actus reus of the crime is a necessary element of conspiracy, the requirement was met in this case.[15]

29 The next ground of the application was that the trial judge failed to direct the jury not to rely upon the statements made by Nguyen in his record of interview.

30 In the record of interview Nguyen described the role of Tom, one of the persons alleged by the Crown to be a conspirator. The trial judge told the jury that, in order to determine whether there was a conspiracy and, if there was a conspiracy, its scope and purpose, they were 'entitled to look at the proven acts, conduct and words of all of the alleged conspirators.' Later, his Honour said that the Crown must prove the conspiracy 'on the whole of the evidence.' Counsel for the applicant submitted that the jury may have relied upon Nguyen's record of interview to determine that Tom was a conspirator and thus that the applicant was also a participant in the conspiracy.

31 In her address to the jury the prosecutor canvassed the evidence against Ong, which did not include Nguyen's record of interview. The trial judge told the jury that they were to separately consider the case against each of the accused. His Honour separately dealt with the case mounted by the Crown against each accused and summarised the addresses of counsel. Again, no reference was made to Nguyen's record of interview in the case against Ong. No exception was taken to this aspect of the charge. In any event, Nguyen did not state anything which was adverse to the case of Ong. In his address to the jury, counsel for Ong said that it was 'pretty obvious' that there was a conspiracy to import heroin between Krong, Eddy and Tom. In my opinion there was no risk that the jury may have relied upon anything in Nguyen's record of interview to determine Ong's guilt.

32 For the foregoing reasons I would refuse leave to appeal against Ong's conviction.**

**33 The grounds of the Crown's appeal against Ong's sentence are that the head sentence and minimum term were manifestly inadequate and the sentencing judge erred in failing to give sufficient weight to the nature of the offence, the need for specific and general deterrence and Ong's prior conviction. It is also alleged that the sentencing judge erred in failing to direct that the sentence be made cumulative upon the outstanding portion of a prior sentence and in failing to sentence Ong to life imprisonment.

34 Ong is now 48 years' old. He was born in Vietnam and came to Australia by boat in 1979. He married in 1982 and has three children whose ages range from 13 to 23 years. The respondent initially worked as a welder and then operated clothing factories until 1993. Ong turned to dealing in drugs. He was arrested in 1994 and sentenced in 1996 upon being convicted on a count of attempting to possess a commercial quantity of heroin. A sentence of 12 years' imprisonment was imposed and a minimum term of eight years was fixed. He had been on parole for one year and seven months when he committed the current offence.

35 The offence committed by the respondent was indeed serious. The maximum penalty was life imprisonment. The heroin imported pursuant to the conspiracy exceeded a commercial quantity by 0.3769 kilograms. Ong's prior conviction meant that his offending cannot be regarded as an aberration and calls for a sentence which would deter him from offending again. I view the head sentence and the minimum term as extremely lenient. I do not consider however, that the sentence displayed inadequacy which was 'clear and egregious'[16] or so disproportionate to the gravity of the crime as to shock the public conscience[17] or 'undermine public confidence in the**

ability of the courts to play their part in determining the commission of crimes.'[18] Accordingly, I would dismiss the Director's appeal against the sentence.

**36 The grounds of the Director's appeal against Nguyen's sentence are that the head sentence and minimum term are manifestly inadequate.

37 Nguyen is now 41 years' old. He was born in Vietnam and came to Australia at the age of 14 years in 1981. He left school in year 11 and obtained employment as a machinist and subsequently as a kitchen hand, nurseryman, a waiter and a labourer. The respondent sustained a back injury and was unemployed when he committed the offence. The sentencing judge said that was 'no doubt the reason for your participation.' According to the report of a psychologist, who tested the respondent, Nguyen had an intelligence quotient of 87, where 81 per cent of the population would do better. The psychologist also diagnosed Nguyen as suffering from anxiety and depression. Nguyen had one prior conviction for possession of a prohibited weapon without a permit, in respect of which he was placed on a good behaviour bond. The sentencing judge said that he did not regard that offence as relevant to the task of sentencing Nguyen. The respondent co-operated with the police in that he offered to help the police in their efforts to arrest Tom and he did everything which the police asked of him, although those efforts were in the end unsuccessful.

38 Having regard to the limited role of the respondent, reflected in the amount of the reward given to him, his limited intellect, his efforts to assist the police and the fact that he was to be sentenced as a first offender, I do not regard the sentence imposed upon Nguyen as one outside the range available to the sentencing judge. I would dismiss the Director's appeal.**

39 For the reasons given by Buchanan JA and Kaye AJA I would refuse leave to appeal against Ong's conviction.

40 I also agree that the appeal by the Commonwealth Director of Public Prosecutions against the sentences of Ong and Nguyen should be dismissed for the reasons given by Buchanan JA.

**41 I have had the advantage of reading in draft the reasons for judgment of Buchanan JA. For the reasons given by his Honour, I agree that the application by Ong for leave to appeal against his conviction should be dismissed. I also agree that the appeal by the Commonwealth Director of Public Prosecutions against the sentences of Ong and Nguyen should be dismissed. I wish to add the following brief observations to those made by his Honour.

42 While the adequacy of the warning given by a trial judge in respect of evidence, such as that of Imbriano, must be assessed by reference to the identification evidence itself, nevertheless that question must be considered in the light of the issues which were alive at the trial, both in relation to that evidence, and generally. The evidence of Imbriano, that he believed that it was Ong who was speaking on the intercepted phone calls with Krong, was given in short compass. Equally, that evidence was only subjected to quite brief cross-examination. Two main points were made in cross-examination. First, it was put to Imbriano that, when he met Ong, he had a pre-conception that the person whose voice he had heard on the intercepted phone calls was the voice of the person who he extradited from Sydney to Melbourne. Secondly, it was put to Imbriano that the voice, which Imbriano believed to be that of Ong, was distorted on the tapes. Both of those suggestions were resisted by Imbriano. That evidence was the subject of only brief reference in the final addresses of counsel for the Crown and counsel for Ong. Indeed, in her closing address, the prosecutor's mention of it covers less than half one page of the transcript. By comparison, the section of her address to the jury, setting out the circumstantial evidence linking Ong with the telephone calls which had been intercepted with Krong, occupied more than 30 pages of the transcript. In response, counsel for Ong also addressed quite briefly on that matter. Again he pressed the two points which he had pursued in cross-examination, namely, that when Imbriano recognised the voice of Ong as being that on the tapes, he already had a preconception that that was the case, and, secondly, that the voice which he listened to on the tapes was too distorted to make a viable comparison. The main focus of the address of defence counsel related to the evidence of the police as to the finding of the silver Panasonic telephone. Counsel described that evidence as a 'smoking gun' in the hands of the Crown. He conceded that if the jury accepted that the police found the telephone on Ong's bedside table, then it was 'very strong evidence' against Ong.

43 There is no set formula by which a judge must instruct a jury in a case involving identification. The adequacy of any direction must be considered in light of the issues in the trial. In this case, involving evidence of aural identification, the warning given to the jury by the trial judge, and quoted in the judgment of Buchanan JA, was, in my view, clearly sufficient to address the issues which were at large relating to Imbriano's evidence. Accordingly, it is hardly surprising that counsel for Ong at trial did not take exception to that part of the trial judge's charge.

44 The second matter about which I wish to make some short observations relates to the ground of appeal that the trial judge erred in failing to direct the jury that they must be unanimously satisfied as to the existence of an overt act, in order to prove the count of conspiracy pursuant to s 11.5 of the Schedule to the Criminal Code. As it is not necessary for us to determine whether the jury must unanimously agree as to the same overt act or acts, I would refrain from expressing a view on that question. It is not necessary to decide the point because there were two overt acts about which the jury must have been unanimously satisfied beyond reasonable doubt. First, it was not in issue that the heroin was imported into Australia and that that was an overt act performed pursuant to the agreement. On appeal it was submitted that neither of the Thai undercover operatives, Jessie or Eddie, were parties to the conspiracy. For the reasons given by Buchanan JA, I would reject that proposition and add the following remarks. The trial was opened by the prosecutor on the basis that both Jessie and Eddie were parties to the conspiracy. The same proposition was put by the prosecutor in her final address. No submissions were addressed to the jury to the contrary by counsel for Ong. Indeed, counsel expressly conceded that there was a conspiracy between Krong, Tom and Eddie. In his charge, the trial judge told the jury that two of the alleged conspirators, Eddie and Jessie, were undercover police. No exception was taken to that part of his Honour's charge. Clearly, then, on the issues which were before the jury, it was not in dispute that there had been at least one overt act committed pursuant to the conspiracy alleged by the Crown.

45 Secondly, the jury were instructed that, in order to convict Ong, they must be satisfied beyond reasonable doubt that the voice of one of the males in the intercepted phone calls with Krong was that of Ong. The position taken on behalf of Ong at the trial was that none of the calls were made by him. By convicting Ong, the jury must have been unanimously satisfied that one of the voices in the intercepted telephone calls was that of Ong. It was common ground at the trial, and on appeal, that the intercepted telephone calls were overt acts for the purposes of s 11.5(2)(c) of the Schedule of the Criminal Code. Accordingly, the jury must have been unanimous as to the commission of those overt acts.

[1] See, for example, R v Brownlowe (1986) 7 NSWLR 461.

[2] R v Callaghan [2001] VSCA 209; (2001) 4 VR 79 at [27] (Winneke P).

[3] See Festa v R [2001] HCA 72; (2001) 208 CLR 593 at 610 (McHugh J); R v Callaghan, above; R v Chernia (2003) 2 Cr App R 6 at [100]-[101].

[5] Cf Bulejcik v R (1996) 185 CLR 375 at 395 (Toohey and Gaudron JJ). See also R v Morgillo, unreported Supreme Court of NSW, 28 July 1992.

[6] See, for example, Festa v R, above. A witness to an armed robbery spoke briefly to one of the robbers and later saw the accused emerging from a lift and heard her speak to a man who was with her.

[7] See R v Neville (2004) 145 A Crim R 272; R v Carr [2000] TASSC 183; (2000) 117 A Crim R 272 at 289 (Blow J).

[8] And the witness's study of the tapes and his conversations with the applicant put him in a better position to make a comparison between the voice of the applicant and the taped voice than the jurors. Cf Smith v R [2001] HCA 50; (2001) 206 CLR 650.

[11] Cf R v Bennett [2004] SASC 52; (2004) 144 A Crim R 215 at [80] (Doyle CJ) and at [115] (Gray J). See also Festa v R, above, at 642 (Kirby J); R v Rich [2002] VSCA 17 at [78] (Brooking JA).

[12] [2007] QCA 209. See also R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216 at footnote 26.

[13] At common law the crime of conspiracy is complete as soon as the offenders enter into the agreement.

[14] See s 15I(1) and (3) of the Crimes Act.

[15] In Yip Chiu-Cheung v R (1994) 9 Cr App R 406 the Privy Council held that an under cover police officer who agreed to import drugs was a party to a conspiracy notwithstanding that he never expected to be prosecuted if he carried out the plan as intended. Cf Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 in which the High Court held that evidence of law enforcement officers who illegally imported drugs into Australia should have been excluded on the grounds of public policy.

[16] DPP v Oversby [2004] VSCA 208.

[17] R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522 (Charles JA).

[18] Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 306 (McHugh J).

Criminal Code Act 1995(Cth)

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