Court of Appeal (WA)|2001-12-13|Before: Mr P, Steytler J, Parker J

Foo v The Queen [2001] WASCA 406 (13 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FOO -v- THE QUEEN [2001] WASCA 406

Criminal law - Accomplice direction - Whether adequate

Criminal law - Sentence - Possession of prohibited import - Commercial quantity of heroin - Whether sentence of 21 years imprisonment excessive - Aggravating circumstance of two previous like offences - Sentence reduced to 17 years imprisonment with non-parole period of 9 years 6 months.

Customs Act 1901 (Cth), s 233B(1)(ca), s 235(2)(c)

Sentence of 17 years imprisonment with a non-parole period of 9 years 6 months substituted

Respondent : Commonwealth Director of Public Prosecutions

Asciak v The Queen [1990] WAR 120

Chew v The Queen (1991) 4 WAR 21

Foo v The Queen, unreported; CCA SCt of WA; Library No 2434; 2 October 1978

Kook v The Queen [2001] NSWCCA 122

Krakouer v The Queen (1996) 16 WAR 1

Markovina v The Queen (1996) 16 WAR 354

R v Barrientos [1999] NSWCCA 1

R v He and Bun [2001] VSCA 58

R v Storey (1998) 1 VR 359

R v Zapata [1996] VSCA 312

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Tiong v The Queen [2000] VSCA 78

1 STEYTLER J: I have had the advantage of reading, in draft, the reasons to be delivered by Parker J. I am in entire agreement with all that his Honour has said. There is nothing I wish to add.

2 PARKER J: Kok Juan Foo was convicted after trial in this Court before Wheeler J and a jury in June 2001 on an indictment which alleged that on 29 April 1999 he had in his possession in Perth prohibited imports, namely, not less than the commercial quantity of heroin, which was reasonably suspected of having been imported into Australia in contravention of the Customs Act 1901, contrary to s 233B(i)(ca) of that Act. The indictment further alleged as a circumstance of aggravation that Kok Juan Foo had been previously convicted in 1978 of two offences against the same provision of the Customs Act each involving quantities of heroin not less than the trafficable quantity. That was admitted. A sentence of imprisonment for 21 years was imposed with a non-parole period of 111/2 years. The sentence was imposed on 29 June 2001 but was backdated to 25 May 2001 in view of time which had been spent in custody.

3 Kok Juan Foo appeals against this conviction and seeks leave to appeal against the sentence which was imposed.

4 On 29 April 1999 Federal police officers had Chi Khan Voong under surveillance in the City of Perth. He had recently travelled from Melbourne to Perth by air. In the early afternoon he was walking in the street near the Ibis Hotel where he was staying. He was seen to greet and shake hands with the appellant in an apparently chance meeting. They parted after exchanging a few words. Voong returned to his hotel and collected a black backpack and walked to Wellington Street. The accused walked to his parked vehicle then drove along Wellington Street where he stopped to pick up Voong. Voong was observed to get into the appellant's vehicle carrying the black backpack. The appellant and Voong drove together for a few hundred metres during which the vehicle turned from Wellington Street into Milligan Street. It stopped a little short of Murray Street, where Voong left the vehicle but without the black backpack. The vehicle was driven off by the appellant but was intercepted a little later. The black backpack was on the front passenger seat of the appellant's vehicle. It was found to contain what proved to be 2,115.8 grams of a heroin mixture in block form. On analysis this was found to be the equivalent of 1,562.5 grams of pure heroin, ie the mixture had about

74 per cent purity. The heroin mixture, when in the black backpack, had been wrapped in silver gift paper, as though a present.

5 Having got out of the appellant's vehicle in Milligan Street near Murray Street, Voong returned to his hotel which was quite close-by, and in a telephone conversation a little later was heard to report to somebody that "I have completed it", or words to that effect. He was arrested about two and a quarter hours after he left the appellant.

6 Voong, who had been charged, pleaded guilty and sentenced in respect of this matter, gave evidence at the trial of the appellant. It was his evidence that on an earlier visit to Perth he had been introduced to the appellant whom he knew as Lo Biu. It was Voong's evidence that he had agreed with a man Lim Gim Siang, though known as Saiman, in Melbourne, to deliver what proved to be the heroin to Perth. He was to receive $7,000 for doing so and was paid a further sum for his expenses. In fact, he arranged with two young Asian men to carry the heroin, which he had wrapped in the silver paper and placed in the black backpack, from Melbourne to Perth by rail. Voong flew to Perth where he collected the backpack containing the heroin from the two men on the morning of 29 April 1999. He met them in the street a little distance from the events described earlier. He had then returned to the Ibis Hotel where he left the backpack. Police surveillance evidence confirmed this meeting between Voong and the two young Asian men and Voong's return to the hotel.

7 It was Voong's evidence that about half an hour before he met the appellant in the street he received a telephone call, which he said was from the appellant, in which he was told to the effect "Its OK to make contact now". There was evidence that this telephone call had been made from a public pay phone at the Lords Health Club in the city at 12.26 pm. There was evidence of an employee of that Club that the appellant was in the Club at that time. The telephone call was in fact made to a mobile telephone number 0415 575 6399. There was an issue at trial whether, at the time, that telephone was in the possession of Voong or some other person. Evidence led at the trial disclosed that on that day and on immediately preceding days there had been calls to that same telephone by persons who were also in communication with Voong on another mobile telephone found in Voong's possession. These included Saiman.

8 It was Voong's evidence that Saiman had given him the heroin to deliver to Perth. Voong had been told by Saiman that he was to await a call in Perth from a person who would collect the package. This would be Lo Biu, ie the appellant. It was Voong's evidence that when he met the appellant in the street following the telephone call, the appellant asked "If he'd brought the things with him?"

9 In his evidence at the trial the appellant denied knowing that there was heroin in the backpack. He agreed he was at the Lords Health Club that morning. He said he met Voong at the telephoned request of a Kim Wong who told him he had a friend visiting Perth, this was Voong, and he asked the appellant to show Voong around. It was the appellant's evidence that he had never met Voong before. Having picked Voong up in his vehicle it was the appellant's evidence that Voong asked to be taken to Mandurah but the appellant was not able to do that because of another commitment. Having explained this to Voong, it was the appellant's evidence that Voong left the vehicle but asked if he could leave the backpack in the appellant's vehicle, indicating that they would meet later. No firm arrangements were made, however, for them to meet again.

10 There was evidence that the mobile telephone number 0415 756 399 was subscribed to in the name of Ramez Mattha at an address in New South Wales which investigators had not been able to locate. It was the evidence that this was believed to be a fictitious name and a false address. The mobile telephone 0415 756 399 was not located by the investigators.

11 While the above is not an exhaustive review of the evidence led at the trial on which the prosecution relied, it is sufficient for the purposes of this appeal.

12 The major ground upon which the appellant relies in this appeal alleges a failure of the trial judge to direct the jury that it would be dangerous to convict the appellant upon the uncorroborated evidence of the accomplice Voong.

13 There can be no doubt that Voong was an accomplice in this case. Although his evidence was not the sole evidence on which the prosecution relied it is clear that it was a most material part of the prosecution case, in particular with respect to the knowledge of the appellant as to the nature of the contents of the black backpack. The evidence of Voong which was relevant to this aspect of the case had been denied by the appellant. Importantly, there was in this case no other evidence, independently of Voong, which was capable of corroborating the evidence of Voong so far as it related to the appellant's knowledge of the contents of the backpack.

14 It is also clear that the trial judge took this view of the evidence. Before the trial judge commenced to charge the jury there was a discussion with counsel, in the absence of the jury, of matters relevant to the charge. The judge made it clear that an accomplice direction would be given. The judge, however, went on to say:-

"I don't propose to tell them its dangerous to convict on the uncorroborated evidence of an accomplice, and then take them through the question of what corroboration is, and then tell them that I think it's the case in this case that there isn't any. That seems to be, to me, entirely pointless."

15 It was submitted that this revealed that, despite having shortly before indicated that an accomplice direction would be given, the trial judge had determined not to give one as to do so would be "entirely pointless". In my view, this misunderstands entirely the point being made by the trial judge. The point of the observations of the judge was that in this case there was no evidence capable of corroborating the evidence of Voong. That being so, what was described as "entirely pointless" was a direction which sought to spell out to the jury the nature of corroborative evidence, only to direct them at the end of it that in this case there was no evidence of the requisite character.

16 It was further submitted, on the basis of the observation of the trial judge which has been set out above, that this Court should draw from the passage quoted the inference that not only had the trial judge decided not to give a corroboration warning but, in doing so, had failed adequately or at all to consider the application of s 50 of the Evidence Act 1906 (WA). This provides:-

"50. Corroboration warnings not generally required.

(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."

While it is true that there was no specific reference by the trial judge to s 50, that is hardly surprising as the section and its effect is so well known. Further, her initial remarks to counsel make it clear she was satisfied that a warning was justified.

17 In my view, the discussion with counsel before the jury was charged is not at all misleading or confusing. It was made clear that the trial judge well recognised the need to give an appropriate warning to the jury because of the significance in the case of the uncorroborated evidence of the accomplice Voong. The judge saw, however, that there was no point in this direction taking the form which is necessary where there is some evidence capable of corroborating the evidence of an accomplice, and which is therefore usual, in which the jury are instructed as to the nature of corroboration and the judge identifies for the jury those aspects of the evidence that are capable of being accepted by the jury as providing the necessary corroboration. As will appear, this view of what was said is further confirmed by the way in which the trial judge then dealt with this issue in the charge.

18 The former rule of practice by which a trial judge was required to give an accomplice warning has, of course, been abolished in Western Australia by s 50(2)(a). As the common law had developed accomplices, together with the alleged victims in cases of rape and other sexual offences, were placed in a special category of witnesses in respect of which a corroboration warning was always required. Although this was a rule of practice, it had been described as being as imperative as a rule of law; Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 at 9. In this State the legislature intervened, first, with respect to the corroboration warning required in the case of the evidence of the victims in sexual assault trials, by enacting what was s 36BE of the Evidence Act. The language of the former s 36BE has been repeated, without material change for present purposes, in the present s 50, but the scope of the application of s 50 has been extended so that it now includes corroboration warnings in the case of an accomplice. It deals alike inter alia with corroboration warnings in the case of the victims of sexual assaults and accomplices. It was observed by Brennan, Dawson and Toohey JJ in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, there in the context of the former s 36BE(1)(b) (now s 50(2)(b)), at 88-89 :-

" ... par (b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification."

Under s 50, this observation, if adapted to refer to an accomplice rather than an alleged victim, is equally applicable where the evidence in question is that of an accomplice. As Deane J in Longman went on to say at 95-96 :-

"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury. Section 36BE(i) neither negates that general responsibility in cases to which it applies nor precludes the giving of a warning of the kind referred to in the sub-section if the trial judge is satisfied that the particular circumstances of the case require it."

19 As was observed by McHugh J in Longman at 105 - 106 the conventional common law warning was not based on the circumstances of the particular case but was required in every case by virtue of experience derived from other cases. It is now the effect of the present s 50(2)(b), however, that the particular circumstances of the case being tried must, in the view of the trial judge, require a warning. McHugh J went on to observe at 107 :-

"If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of the warning will depend upon the particular circumstances of the case."

20 In this State, before the statutory changes to the law contained in s 36BE and s 50, the leading case in this context was that of Khan v The Queen [1971] WAR 44 where Burt J at 53 identified a number of propositions which accurately reflect what had been the law concerning corroboration of an accomplice. For these propositions Burt J drew on R v Baskerville [1916] 2 KB 658, Davies v Director of Public Prosecutions [1954] AC 378 and other decisions. Relevantly, the propositions were -

"(2) It is the duty of the trial judge to warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice.

(3) And having been so warned, the jury may, none the less, convict on the uncorroborated evidence of an accomplice.

...

(7) If the occasion arises for a direction as in para 2, it is the duty of the trial judge -

(a) to explain to the jury what is meant by corroboration ..., and

(b) to give to the jury a broad indication of the evidence which the jury, if they accept it, may treat as corroboration ....

As was said by Lord Reading CJ in R v Baskerville at 667:-

" ... evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it."

It was, of course, for the jury to determine what evidence they accepted and if so whether that evidence was in fact corroborative, and the weight to be given to it.

21 Why such a direction is necessary in the case of an accomplice is captured succinctly in the words of Winneke P, Ormiston JA and Southwell AJA concurring, in R v Kendrick (1997) 2 VR 699 at 705 -

"The reason which underlies the requirement for the warning stems from the natural tendency for the accomplice to diminish his own responsibility for the crime and off-load that responsibility on to other participants in the crime."

22 In the particular circumstances of this case, in my respectful view, Voong being an accomplice and his evidence relevantly being uncorroborated, the trial judge was entirely and clearly correct to perceive that there was need to warn the jury of the potential dangers of acting on his evidence to convict the appellant. In the particular circumstances of this case there was in fact more than one reason for the jury to be warned of the dangers of acting on Voong's evidence. Voong was clearly an accomplice, which involved the risk that he might seek to shift responsibility for the offence onto the appellant, or others, so as to diminish his own responsibility. In addition, however, there were also aspects of his evidence, not related to the appellant's knowledge of the contents of the backpack, in which it appeared he had been dishonest. There was also a possibility that he might be shaping his evidence to be sure that he would not be thought by the police to have failed to live up to an undertaking of cooperation he had given, and which was relevant to his sentence - Crimes Act, s 21E.

23 So it was that in the course of the charge to the jury, which otherwise is not the subject of any complaint before us, the trial judge dealt with the issue of Voong's evidence in the following way. Having first identified Voong's evidence as the only direct evidence, and having summarised its effect, the judge continued :-

"Voong is, as the crown quite properly said to you, a self-confessed criminal, a person who is up to his neck in dealing in drugs and it would appear probably, from the evidence that you have heard, not just on this occasion either. Not a person of good character; by his own confession convicted of a serious offence. Also on his evidence he is an accomplice of Mr Foo in an enterprise of heroin possession and distribution from one to another.

It is traditional to warn juries of the dangers of the evidence of an accomplice because it's the long experience of the law - and it's not confined to the law, of course, by any means - that people try to blame others for their own wrongs; that accomplices have a number of motives in different cases not to tell the truth.

It seems to me that the risks inherent in Mr Voong's evidence have been put to you by Mr Hore-Lacy quite clearly, but let me remind you of them because it is important that you take them into account in evaluating Voong's evidence. As accomplices generally may, Mr Voong clearly may wish to minimise his own role: just following orders, just doing what Saiman said. There was Saiman at one end and Mr Foo at the other, and he just did this bit in the middle.

He may wish to have something to bargain with, hoping that the police and the courts will deal more leniently with him if he, if I can put it colloquially, dobs in someone else. The nature of the drug trade, where some participants you might think might be pretty scary people, is such that it might be easier for him to implicate someone who is a small player, or even wholly innocent, rather than those really directing him if he knows who they are, those really involved.

There is also, as was put to you, the effect of s 21E of the Crimes Act, which I won't bother to read out, but which basically is to the effect that if, after you have said you will cooperate and you have got a reduced sentence as a result, you then fail to do so, you can be brought back before a court which will make a decision about whether you did fail and then what should be done with you, probably by way of increasing your sentence if you haven't.

You can see it is perfectly proper for the police to invite cooperation. It is perfectly proper for Voong to get a reduced sentence for cooperation, but the problem for you for your deliberations is however proper all that is, you can see that a person in Voong's position may feel a lot of pressure to stick to a story once he has told it, so there are all those things that you have to take into account in relation to Voong's evidence.

Consider his evidence with great care for those reasons. You can accept it. That's for you; that's why he was here. He is a witness whose evidence you can accept if you wish but you must take those things into account; you must. You must consider them carefully in deciding whether you will accept it."

The trial judge then went on to identify aspects of his evidence, all of which were unrelated to the evidence material to this case, as to which it appeared to the judge Voong was not telling the truth and to identify apparent internal inconsistencies in his evidence.

24 It will be apparent immediately that this is not an accomplice warning in full conventional form. It is stressed for the appellant that the jury was never told in so many words that it was unsafe to convict on the uncorroborated evidence of Voong because he was an accomplice, nor did the judge give the jury any direction as to the nature of corroboration and there was a complete failure of the judge to identify what evidence there was which the jury might accept as affording corroboration. It is also said that the judge merely, in effect, reminded the jury of counsel's submissions rather than lending the weight and authority of the judge's office to what was being said as to the dangers of accepting the evidence of Voong.

25 What the trial judge did, however, was to commence with direct bluntness by categorising Voong as a self-confessed criminal up to his neck in dealing in drugs. Her Honour then expressly identified him as being on his evidence an accomplice, of the appellant in this offence. The traditional experience of the law as to "the dangers of the evidence of an accomplice" was then explained, the reason for that being identified as that accomplices try to blame others for their own wrongs and have a number of motives not to tell the truth. In this passage the trial judge has directly spoken in terms of the dangers of the evidence of an accomplice and has given the jury an explanation which in my view adequately captures and conveys the essence of the traditional concern of the law about the evidence of an accomplice. To reinforce that, the direction went on immediately to speak of particular risks inherent in Voong's evidence. In doing so reference was made to the address of counsel, but the trial judge did not merely adopt by reference what had been put by counsel in addressing the jury. The judge went on herself to deal directly with the risks inherent in the evidence of Voong in the passage which commences "Let me remind you of them". In this way the direction as to these risks clearly bore the full authority of the judicial office.

26 When explaining these risks the judge reminded the jury yet again that it was important to take them into account in evaluation Voong's evidence, as "accomplices generally may, Mr Voong clearly may, wish to minimise his own role." To illustrate this, direct reference was made to the effect of Voong's evidence, viz that he just followed the orders of Saiman; there was Saiman in Melbourne and the applicant in Perth and Voong merely "did this bit in the middle". For the jury, who were familiar with the tenor of Voong's evidence, this was likely to be a most vivid illustration, given the circumstances they were to consider, of a critical element of the risks inherent in accepting the evidence of Voong.

27 The trial judge then dealt directly with the risk that Voong had an interest to minimise his role to ensure he was dealt with more leniently. The direction then drew attention specifically to the risk that as Voong was involved in the drug trade it might be easier for Voong to implicate someone who was a small player, or even wholly innocent, rather than those directing him. In my respectful opinion this last consideration was one potentially of considerable significance in the particular circumstances of this case given Voong's particular role, as disclosed in his evidence, as an accomplice in this offence.

28 The jury's attention was then drawn specifically to the fact that as an admitted accomplice in this offence Voong had cooperated with the authorities and had undertaken to maintain that cooperation under the scheme of s 21E of the Crimes Act by which, as had been put to the jury in addresses, Voong's sentence could be reconsidered if he did not live up to his promised cooperation. As the Judge made clear to the jury, this could lead Voong to feel under a lot of pressure not to change a story once he had told it.

29 Having directly pointed out with some force these risks in accepting Voong's evidence the trial Judge then directed that they should "consider his evidence with great care for those reasons". It was correctly explained that nevertheless the jury could accept Voong's evidence; that was for their decision. The warning was then immediately repeated, however, viz "... but you must take those things into account ... You must consider them carefully in deciding whether you will accept it."

30 It has long been settled that even a full conventional accomplice warning does not involve any particular form of words; see for example Wong v The Queen [2001] WASCA 32 at [28]. Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well differ inter alia by virtue of those matters. While other matters will often be the subject of at least comment to the jury, in respect of the evidence of an accomplice the direction given needs to be more than mere comment. It should convey this warning to the jury and do so with strength and emphasis.

31 Doggett v The Queen [2001] HCA 46; (2001) 75 ALJR 1290, although a decision in the context of the Longman warning in cases where there has been a substantially delayed complaint of sexual misconduct, may provide reason to leave open the possibility that despite the materiality of the evidence of an accomplice, the absence of an appropriate warning to the jury may not necessarily produce a miscarriage of justice. The present, however, is not such a case.

32 It is necessary therefore to evaluate the direction given in this case. While the judge did not directly use words such as "dangerous to convict on the evidence of an accomplice", she did expressly refer to "the dangers of the evidence of an accomplice" and "the risks inherent in Mr Voong's evidence". Read in the context of the whole direction about Voong's evidence, in my view the direction given would convey to the jury that the dangers and risks lay in accepting his evidence and being persuaded of the appellant's guilt by it. The matters the subject of specific comment and explanation included all the relevant potential dangers which the jury might otherwise not have appreciated by virtue of Voong's role as an accomplice. They went beyond this, of course, and dealt also with other matters which were appropriately included given the particular circumstances of the case. The total effect of the direction in this respect was to constitute, in my view, a most emphatic warning to the jury of dangers, both hidden and obvious, attending Voong's evidence, including those by virtue of his role as an accomplice. The content and force of the direction given would be likely to cause the jury to consider with great care indeed the evidence of Voong before accepting it and convicting the appellant on the basis of it.

33 Further, there was nothing in the direction which could have the effect of diluting or diminishing or qualifying the force and effect of the warning given and the risks that were identified.

34 It is also clearly the case that the direction omitted entirely any reference to corroboration, or to the qualification in the conventional accomplice direction which is usually expressed by words such as "unless the evidence of the accomplice is corroborated" or by confining the warning to acting on the "uncorroborated evidence of an accomplice".

35 In the present case, where there was no evidence capable of corroborating Voong, I am not persuaded that it was necessary, nevertheless, to direct the jury in the conventional, qualified form, which mentioned and adequately explained corroboration and related the explanation to the facts of the case. Given the view I have reached that the direction was adequate to give the jury a clear warning of the dangers of accepting and acting on the evidence of Voong, in particular because he was an accomplice, and to give the jury an adequate understanding of the reasons for this, I am not persuaded that it detracted from the direction that the judge did not go on to qualify the warning by words to the effect Unless the evidence of Voong is corroborated. In the situation that there was no corroborative evidence, it appears to me that the introduction of that qualification would not serve to increase the force or significance of what was otherwise an unqualified warning in respect of the evidence of Voong. Indeed it is possible that to do so may have introduced a potential source of confusion, there being in the end no corroborative evidence in the case.

36 It is also to be noted that no objection was raised at the time by the senior counsel representing the appellant at trial. Of course, if a corroboration warning is required by the circumstances of a case and is not given, the failure of defence counsel to raise the matter with the trial judge will not overcome the resultant miscarriage of justice. But in a case such as the present where the issue is whether the direction given was adequate it is relevant, when weighing the adequacy of the direction given, that experienced counsel saw no reason for concern at the time. In this case, neither the senior counsel for the appellant nor counsel for the Crown saw reason to question the adequacy of the direction at the time.

37 As has been indicated this is not a case of a failure by the trial judge to be satisfied that a corroboration warning was necessary because Voong was an accomplice. The real point in this case is the adequacy of the direction given. For the reasons given, in my view, in the circumstances of this case the direction given was adequate to warn the jury, with clarity and force, of the dangers of accepting and acting on the evidence of Voong because he was an accomplice. It is my impression that in language which was likely to impress itself on the jury, and which was uncomplicated by technicality, the jury were given a strong warning of the dangers attending the evidence of Voong as an accomplice, and otherwise, and of the risks inherent in accepting his evidence, and that they were specifically and clearly directed as to the need to consider with great care his evidence for that reason before accepting it. I am not persuaded, therefore, that there was any perceptible risk of a miscarriage of justice from the form of the direction concerning the evidence of Voong as an accomplice, in the particular circumstances of this case, although it would not be an appropriate or adequate direction in the usual case where there was some evidence capable of corroborating the accomplice.

38 The accomplice direction issue is the foundation for two of the grounds of appeal. Ground 1 approached the matter as an error in direction. Ground 6(1) asserted that the verdict was unsafe and unsatisfactory because of a failure to give appropriate directions. I have already indicated my reasons for rejecting Ground 1. With respect to Ground 6(1), apart from the matters dealt with in the direction which required great caution in approaching the evidence of Voong, nothing appears which provides a foundation for the view that his evidence relevant to the appellant's knowledge of the contents of the black backpack was inherently improbable or false, or that a verdict founded in whole or in part on that evidence, after due warning, is unsafe or unsatisfactory.

39 One additional argument was advanced. It contended the evidence did not support the verdict in so far as it concerned the allegation of a commercial quantity of heroin. This is 1.5 kilograms. The evidence of an authorised analyst was that there was 1,562.5 grams of pure heroin. It is submitted that the effect of the analyst's evidence is that this result was subject to an analysis error range of 5%. An error of 5% could being the figure of 1,562.5 grams below 1,500 grams. The submission, however, is based on a misunderstanding of the evidence. The 5% error range did not relate to this analysis, but to a laboratory policy that where an error of more than 5% was found on a check analysis, the whole analysis was repeated. In this case, however, the analytical error was established to be only 0.4%. Such an error would not introduce any doubt that the quantity of heroin exceeded 1.5 kg. There is no reason to think that the verdict was unsupported or affected by doubt in this respect.

41 The only other ground maintained before us is 2(a) which is in the following terms:-

"That the learned trial judge erred in directing the jury that adverse inferences would be drawn from certain items of evidence, namely - (a) statements read into court."

42 As argued, the ground is not aptly framed, but I will deal with the argument advanced on its merits. Statements of five witnesses were read into evidence. The witnesses were not called. This was done by agreement between counsel at the trial. Senior counsel for the appellant did not require the witnesses to be called. We are advised by counsel for the respondent that they were available to be called, and would have been, had this been requested.

43 The appellant's evidence at trial was that the black backpack was always closed during the short time it was in his vehicle.

44 It was the effect of two statements of Sergeant Berston, as read into evidence, that when the appellant's vehicle was intercepted he saw the black backpack on the front passenger seat of the appellant's vehicle. Its zipper was open and the opening faced the driver. He could see the contents wrapped in silver gift wrapping paper. He closed the zipper to ensure security of the contents of the backpack and removed it, first, to the vehicle he was using, and then to the police vehicle used by Inspector Maslin. He remained with the backpack until Agent Robinson took possession of it. It was still closed. The statement of Agent Robinson as read into evidence was to the effect that he too saw the black backpack on the front passenger seat of the appellant's vehicle. It was open. The opening faced the driver. He could see the silver wrapping of the contents. He saw Sergeant Berston remove the backpack. Later with Inspector Maslin he drove in Maslin's vehicle with the black backpack to the regional office where the contents of the backpack were examined.

45 Inspector Maslin gave evidence. Relevantly, it was his evidence that a short time after the interception of the appellant and his vehicle in Milligan Street he went to the rear of a police vehicle - "I was shown a black backpack which was unzipped and I could observe within the backpack a silver package". On his instructions the backpack was secured in the Inspector's vehicle by Sergeant Berston and later, with Agent Robinson, he took the backpack to the regional office where the contents were examined. The only relevant cross-examination of Inspector Maslin was to confirm that the backpack had been removed from the appellant's vehicle by the time he arrived.

46 In the course of his final address to the jury senior counsel for the appellant pointed to this police evidence as involving inconsistency as to whether the backpack had the zipper open or closed. The submission relied in particular on the evidence of Inspector Maslin which, it was contended, disclosed that the bag was open when he saw it in the police vehicle, whereas, on the evidence of Sergeant Berston, it should have been closed. It was urged to the jury on the basis of this inconsistency that it would be unsafe to rely on any of the statements on this issue. Counsel for the prosecution, on the other hand, pointed out to the jury that the actual words of Inspector Maslin could be understood in two ways, viz either that the backpack was open when he saw it or that it was opened for him to see the contents. As I've indicated there was no cross-examination of Inspector Maslin on this issue.

47 The trial judge dealt with this factual issue in the charge. The jury was reminded of the factual difference, the two interpretations contended for, the words of Inspector Maslin, and the contentions of each counsel. Having done this the judge left the issue to the jury to deal with as a matter of fact without any additional directions.

48 On appeal it is contended that the judge should have gone on to remind the jury that as there was a failure to call Sergeant Berston and Agent Robinson they were not able to be cross-examined by defence counsel and their evidence on the point of the zipper being open or closed was not tested.

49 While there was reference in passing to both Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and Browne v Dunne (1894) 6 R 67 it came to be accepted, and correctly so, that neither of these authorities were to the point.

50 It is true, and it was no doubt obvious to the jury at the trial, that Sergeant Berston and Agent Robinson did not actually give evidence in court and so were not cross-examined. This occurred, however, with the consent of defence counsel. It was not suggested in the course of the trial, whether before or after the evidence of Inspector Maslin, that either or both of these witnesses were required for cross-examination. Further, so far as there is a foundation for the alleged inconsistency, it lies in the unresolved ambiguity in the words of Inspector Maslin in his evidence. Yet he was not cross-examined on this issue.

51 In my respectful view the matter was correctly perceived by the trial judge to be adequately and correctly dealt with in the charge by identifying the factual issue and reminding the jury of the material evidence and the competing contentions as to how it should be viewed. It does not appear that the jury would have received any material assistance by being reminded that the evidence of Sergeant Berston and Agent Robinson had not been tested by cross-examination. No particular direction was called for.

52 In so far as the submissions may have carried the implication that there was some resulting unfairness because these two witnesses weren't made available for cross-examination, it appears to me that this is fully answered by the fact that it was with the consent of senior counsel for the appellant at trial that these witnesses were not called and the absence, even after Inspector Maslin had given evidence, of any suggestion that the other two officers were required for cross-examination.

53 It has not been shown that there is any reason to think that by the failure of the trial judge to remind the jury that the evidence of Sergeant Berston and Agent Robinson had not been tested by cross-examination that the trial has miscarried. This ground of appeal has not been made out.

54 All the other grounds of appeal against conviction were abandoned.

55 For these reasons the appeal should be dismissed.

56 There is also an application for leave to appeal against the sentence of 21 years' imprisonment with a non-parole period of 111/2 years which was imposed on the applicant on 29 June 2001.

1. The Learned Sentencing Judge erred by not applying the appropriate standard of proof in sentencing by applying parity in setting the head sentence of the Applicant with that of the Co-accused VOONG.

2. The Learned Sentencing Judge failed to give any, or sufficient, consideration to the need to maintain parity in sentencing throughout the Commonwealth for Commonwealth Offences.

3. The Learned Trial Judge erred in law in fixing a head sentence that was at the higher range of sentences imposed in Western Australia for the offence in question.

4. The sentence was manifestly excessive in all the circumstances of the offence and of the offender, and/or was a crushing sentence.

58 In the course of the sentencing remarks the trial judge said -

"You were apprehended with 1.56 kilograms of pure heroin - a greater quantity before the calculation of purity was made, but what amounted to 1.56 kilograms of pure heroin - in your vehicle. It is clear that elaborate plans had been made to bring that quantity of heroin, wrapped in packages, to Perth from Melbourne.

Your precise role isn't clear. All that is really known from the facts that emerged at the trial is that you telephoned a person, an unidentified person who appears to have played a coordinating role, shortly before meeting Voong in Hay Street and arranging for him to meet you and leave the drugs in your car. In circumstances where you have given no explanation of your role and where Voong was unable or unwilling to shed light on it, it is not, it seems to me, appropriate to sentence you as a mere courier, nor is it desirable to attempt to place you with precision in some notional hierarchy. You fall to be sentenced really in relation to the amount of the drug and in relation to the bare verdict that you had possession of it.

...

There is further, in this case, no question of remorse or of cooperation with the authorities or matters of that kind which can significantly reduce the sentence to be imposed in such case.

...

... of particular importance in cases of this kind are questions of personal and general deterrence. Drug trafficking of this kind is a pre-meditated, calculated offence committed for commercial reasons and it is important that the courts bring home to those involved the considerable risks which they must set against the very considerable profits which are to be obtained in such trade.

...

In your case, you have the additional factor of a prior conviction. It seems to me in those circumstances that a sentence of 21 years' imprisonment is the appropriate starting point. As I have noted there are some limited mitigating factors but those are taken into account in arriving at that 21 years and there is no further discount to be obtained for cooperation or other matters. ..."

59 In this case by virtue of s 235(2)(c) of the Customs Act, the applicant having been previously convicted (twice) of an offence against s 233B(1) involving more than the trafficable quantify of heroin, the maximum penalty was life imprisonment.

60 In giving consideration to sentence it was made expressly clear by the judge that regard was had to the sentence imposed on the accomplice Voong who had pleaded guilty much earlier to this offence before another judge, and also to the views expressed on an appeal by Voong against that sentence. Voong had not been previously convicted of such an offence so that this circumstance of aggravation alleged against the applicant and admitted by him had no application to Voong. For Voong's offence the maximum penalty was 25 years. He had, however, been in possession of more than the prescribed commercial quantity of heroin. The view taken when sentencing Voong was that his role in the criminal enterprise of which this offence was a part was "somewhat greater than that of a mere courier", however, Voong's precise role could not be determined on the evidence.

61 Voong had, however, undertaken to investigating authorities to cooperate with them and to do so to the extent of identifying and giving evidence against others. While it was put to us, in support of this application for leave, that Voong had only been prepared to identify the applicant, and no one else, so that it should be assumed that the applicant had a lower level of significance in the criminal hierarchy in which they had become involved than Voong, that submission was founded in a mistaken understanding of the facts. As came to be acknowledged by counsel, Voong also identified the man in Melbourne known as Saiman and was prepared to give evidence against him. That proved unnecessary, however, as Saiman also entered a plea of guilty. We were informed in the course of argument that Saiman has been sentenced to a term of 11 years imprisonment with a non-parole period of 8 years and 6 months. He was convicted in respect of the importation of some 2,633 grams of heroin, it appears, however he was a much younger man than the applicant, weight was given to his early plea of guilty, and there was not the circumstances of aggravation of the earlier like convictions. Further, this sentence must be understood in light of the very different sentencing regime applicable in Victoria. The head sentence is roughly equivalent to a head term of some 15-16 years imposed in this State.

62 In the course of the sentencing remarks for Voong the sentencing judge on that occasion had commenced with a term of 21 years imprisonment which he reduced, having regard to Voong's plea of guilty and the applicant's cooperation with the authorities, to a term of 16 years' imprisonment. A non-parole period of 10 years was fixed.

63 On appeal by Voong, the view was taken by the Court that the starting point of 21 years was not too high "although it was, perhaps, at the top end of the range". The Court formed the view, however, that inadequate regard had been paid to the plea of guilty and the nature and extent of the cooperation with the authorities. As a consequence, the sentence in respect of Voong was reduced to one of 13 years' imprisonment with a non-parole period of 7 years and 6 months.

64 In this present application each of the grounds seeks to challenge the starting point of 21 years' imprisonment identified by the trial judge. Each ground does so from a different viewpoint.

65 Ground 1 proceeds from the basis that the starting point for the sentencing of Voong was also 21 years. The submission now advanced is that the applicant has not been shown to be a person with a level of seniority or responsibility in this criminal activity similar to that of Voong. It follows, in the submission of the applicant, that his starting point should be lower. It is necessary to examine different aspects of this line of submission. Voong was shown to be a courier of the heroin, although aptly described as a higher level courier as he in turn organised others to actually convey the heroin from Melbourne to Perth. Voong's motivation was solely financial gain.

66 The silence of the applicant and the absence of other evidence means that the precise role of the applicant is not known. It is clear that he was functioning subject to the coordinating role of at least one other unidentified person so that it cannot be concluded he was a "principal". He was, however, the person who took delivery of the heroin in Perth from the courier Voong. It should not be concluded, therefore, that his true role was that of a courier, or indeed a "mere" courier as was submitted, that being in the context of the submission an inferior role to a "higher level" courier.

67 It seems to me that given the limited proven facts and the silence maintained by the applicant as to his true role, this is not a case in which it was appropriate or possible to seek to categorise the applicant's activity or role, or to place him in any form of criminal hierarchy. There is not a sufficient basis in the evidence, therefore, for any direct comparison with Voong's role. I would respectfully agree with the trial judge that the appropriate course was to approach sentence having regard to the verdict of the jury that the applicant was guilty of possessing a prohibited import being heroin and the quantity and purity of the drug, as well, of course, as the circumstance of aggravation of the previous like convictions. In doing so it is clear, in my view, that the judge was well conscious of the principles, the onus and the approach to sentencing discussed in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 279 - 281 per Gleeson CJ, Gaudron, Hayne and Callinan JJ. While the trial judge did discuss the available evidence it is made clear in the sentencing remarks that, in the end, no regard was had to any direct comparison with, or contrast of, the roles respectively of the applicant and Voong.

68 Further, it cannot be concluded that the trial judge determined in respect of the applicant that his role was to be equated with that of Voong by virtue of the like starting points of 21 years' imprisonment, because the judge had express regard to the circumstance of aggravation affecting the applicant. The legal and practical effect of this was to place the applicant's offence in a more serious sentencing category than had applied to Voong.

69 As was indicated by this Court in the case of Voong, 21 years was at the top end of the appropriate range given the circumstances of his offending. In the present case the sentencing judge's remarks disclose that, taking into account inter alia the offence, the quality and quantity of heroin, and the aggravating circumstance of the earlier convictions, by a different process of assessment the judge came to a like starting point. The existence of the circumstance of aggravation precludes the view that in some way the effect of the judge's approach is to give rise to some disparity as between the applicant and Voong, a disparity which improperly disadvantages the applicant.

70 To the extent that the proposition is advanced in ground 3 that the 21 years was "at the higher range of sentences in Western Australia for the offence in question", the ground and submission appears to misunderstand the view expressed by this Court in Voong v The Queen [2000] WASCA 220 at [13]. The observation there made that the starting point of 21 years for Voong was "at the top end of the range" is referring to the sentencing range appropriate to the circumstances of Voong's offence. There is manifestly scope for there to be a higher range where the circumstances of an offence of this nature warrant it. An offender who was a principal or who was in a primary role in a criminal organisation responsible for the offence would provide an example of circumstances where a higher sentencing range would be appropriate, as would the circumstance of aggravation of previous like convictions.

71 In Quach v The Queen [1999] WASCA 210 and in Serrette v The Queen [2000] WASCA 405 this Court reviewed many sentences of relevance to the present case. The decision in Quach concerned the State offence of possession of heroin with intent to sell or supply. Thus there was no element of a prohibited import. Nevertheless, there are strong comparisons to be drawn between the two types of offence for sentencing purposes. The view was reached in light of the many sentences reviewed that a sentencing range of between 11 to 15 years imprisonment was an appropriate starting point for a first offender, who was a courier in possession of 600-700 grams of heroin with a purity between 55 per cent and 65 per cent, and who committed the offence for commercial gain. Having regard to that decision, the quantity and purity of the heroin in the present case - 2,115.8 grams of a very high grade heroin mix, about 74 per cent purity, ie 1,562.5 grams of pure heroin - and the aggravating circumstance of two previous like convictions and the appellant's commercial motivation (see later), it is difficult to see that a starting point of 21 years is outside an appropriate range.

72 These observations are not intended, of course, to suggest that the limited factors identified are determinative of the ultimate sentence to be imposed in this or any particular case.

73 In respect of ground 2 it was submitted that the starting point of 21 years imprisonment revealed inconsistency with sentences imposed in other jurisdictions. We were referred, in particular, to the decision of the New South Wales Court of Criminal Appeal in R v Wong [1999] NSWCCA 420; (1999) 108 A Crim R 531 and the sentencing guideline there laid down for some types of offences involving drugs. This guideline was applicable to couriers and persons low in an organised criminal hierarchy. We were referred also to a number of other sentences for offences of this type imposed in New South Wales, Victoria, South Australia and Queensland, each of which involved a sentence of less than 21 years imprisonment even though, in some cases, the amount of heroin was greater. It was submitted in these circumstances that the starting point of 21 years had therefore failed to give sufficient weight to the need to maintain parity of sentences throughout the country for Commonwealth offences; see Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455 and Medina v The Queen (1990) 108 FLR 288 per Malcolm CJ at 292.

74 Inevitably, comparisons with the sentences imposed in other cases, is difficult because of the need to make allowance and adjustment for the wide variety of circumstances both of the offence and the offender. When comparisons are made interstate there is the additional need for considerable caution because of the variation in the legislative sentencing structure as between States, in particular with respect to remissions, which has the effect of distorting the effect of many of the sentences imposed. This element is recognised by s 16G of the Crimes Act 1914 (Cth). The Western Australian legislative sentencing structure, for example, makes provision for remissions of one third.

75 By the decision of the High Court in Wong v The Queen [2001] HCA 64, which has become available since the argument on this application, the sentencing guideline on which the present submission placed much reliance is now remitted to the Court of Criminal Appeal in New South Wales. The guideline is likely to be the subject of further consideration. In particular, the view has been expressed in the High Court that the starting points for sentencing proposed by the guideline "... is based on the false premise that gravity of the offence can usually (perhaps even always) be assessed by reference to the weight of narcotic involved"; Wong v The Queen at [73] per Gleeson CJ. Further, to the extent that the guideline was determined "primarily on the basis of existing sentencing patterns", R v Wong at 556 [142] per Spigelman CJ, the observations of Gleeson CJ in Wong v The Queen at [66] are of significance:-

"66. Further, to attempt some statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality (as the offence now under consideration does) is fraught with danger, especially if the number of examples is small. It pretends to mathematical accuracy of analysis where accuracy is not possible. It may be mathematically possible to say of twenty or thirty examples of an offence like being knowingly concerned in the importation of narcotics where the median or mean sentence lies. But to give any significance to the figure which is identified assumes a relationship between all members of the sample which cannot be assumed in so small a sample. To take only one difficulty, why were the highest and lowest sentences set as they were? Do they skew the identification of the median or the mean? The task of the sentencer is not merely one of interpolation in a graphical representation of sentences imposed in the past. Yet that is the assumption which underlies the contention that sentencing statistics give useful guidance to the sentencer."

76 Even so, the proposed guideline was intended only to apply "to couriers and persons low in the hierarchy of the importing organisation" and proposed a sentencing range of 8 - 12 years for an offence involving a low range commercial quantity of 1.5 kg - 3.5 kg of heroin. It allowed scope for sentences to be imposed that were higher and lower where particular circumstances warranted this; R v Wong at 555-556 [141-142] per Spigelman CJ. Such a guideline could not be directly translated to Western Australia because of differences in the legislative sentencing structure. For present purposes I also note two observations of Spigelman CJ at 548 [89] and 549 [96] having reviewed Schedules before the court of sentences in New South Wales and in other States:-

"[89] The desirability of uniformity of approach throughout Australia may indicate some need for firming up the top of the range for sentences involving low range commercial quantities ...

[96] A comparison of Schedule 1 and 2 does suggest that courts in other States impose slightly higher sentences at the top of the low commercial quantity range."

77 The decision in R v Wong had been considered in Serrette v The Queen (supra) when this Court dealt with a submission that this Court should follow and apply the guidelines proposed in R v Wong, in particular because of the importance of maintaining a common approach to sentencing offenders who commit offences against Commonwealth legislation. The reasons of Pidgeon J, Kennedy and Murray JJ concurring, at [12]-[16] carefully consider that submission, noting in particular an apparent tendency toward a lowering of sentences in New South Wales since R v Ferrer-Esis (1991) 55 A Crim R 231. This seems to have been one factor that led to the decision in R v Wong. Pidgeon J also drew attention to the policy adopted by this Court of seeking to maintain a common approach throughout Australia to the sentencing of offenders who commit offences against Commonwealth legislation. In particular, he referred to the efforts in this State apparent from decisions such as R v Foster and D'Anna (1992) 59 A Crim R 14, and including the further review undertaken in Quach v The Queen (supra), to ensure that relevant sentencing patterns in this State did maintain appropriate comparability. In particular, it was said at [15] -

"In this State the principles in Ferrer-Esis have been followed, one of the reasons being to obtain uniformity. A suggested reduction on the basis of sentencing patterns in New South Wales would run contrary to what has been said by this Court both in importation cases and in State cases involving offences of being in possession of narcotic substances and distributing them within the State. Sentences for these State offences must be in coordination with importation offences and a reduction in one may well suggest a reduction in the other. This would be inconsistent with what has been said in this Court from time to time, namely that there must be a firming up of sentences for offences of this type ... I do not consider sufficient has been shown to justify a departure in this State from the range previously determined by this Court."

The position with respect to the other sentencing cases referred to from New South Wales and other States varies. Some of the sentences are affected by the remission issue. The New South Wales cases are reflected in the decision in R v Wong. Otherwise, when the full circumstances of the present case are considered, including in particular the circumstance of aggravation of the previous like convictions, it is not apparent that the starting point of 21 years imprisonment is out of keeping with some of the sentences to which we were referred, although that is not universally the case. Nevertheless, for the reasons indicated earlier, and in particular the decision of this Court in Serrette v The Queen, it has not been demonstrated in my view that there was error on the part of the sentencing judge in fixing the starting point of 21 years imprisonment, although it is fair to observe that this is at the high end of the appropriate range.

78 There is, however, a matter which does require attention and which may be considered in the context of ground 4. In the course of the sentencing remarks there were identified some matters which ought properly weigh in mitigation of sentence. While recognising that personal factors have only a limited relevance when sentencing in respect of offences of this kind, nevertheless, it was noted that since 1978 the applicant had not been further convicted, he had been for some time the sole carer of his young son and since his release he had progressively worked himself up to the ownership of a business which he had sold some three years before the present offence. The sentencing judge observed -

"As I have noted, there are some limited mitigating factors but those are taken into account in arriving at that 21 years and there is no further discount to be obtained for cooperation or other matters."

79 The point of concern in these observations is that they appear to suggest that in truth 21 years imprisonment may not have been the ultimate starting point. The comment suggests that the 21 years was fixed only after having regard to the mitigating factors. The sentencing comments do not indicate what weight was given to these mitigating factors other than describing them as having limited relevance. Two views are possible of the approach taken by the sentencing judge. On the one hand, there might have been what is often described as an "instinctive synthesis" of the many relevant factors, see Wong v The Queen (supra) at [64], which led to the sentence of 21 years imprisonment. Alternatively, there may have been a starting point higher than 21 years imprisonment which was reduced after taking into account the mitigating factors. The second of these appears most naturally to accord with the comments of the sentencing judge.

80 Whichever of these has occurred there is reason for concern at the result. Were the actual starting point higher than 21 years it would be outside an appropriate range. If the true starting point was 21 years imprisonment the mitigating factors that were identified required, as a matter of principle, that there be some reduction in that term to reflect those factors. If the actual approach was one of instinctive synthesis, then it would seem to me that a sentence of less than 21 years imprisonment would have suggested itself after taking account of all the factors in this case that were relevant to sentence, see s 16A of the Crimes Act, including the aggravating circumstance of the past similar offences and the mitigating factors.

81 It is my respectful view, for the reasons indicated, the relevant passage in the sentencing comments reveals that the process by which the head sentence of 21 years imprisonment was arrived at in this case was affected by some error of principle. It should therefore be set aside and the sentencing discretion revisited by this Court.

82 I will not repeat much that is to be found in the sentencing remarks of the trial judge quoted earlier in these reasons. In my respectful view those remarks are pertinent and correct. It is important to have clearly in mind the nature of this offence and the applicant's role. Obvious relevant characteristics of this offence are its persisting and growing prevalence, the difficulty of detection, and the serious adverse consequences of offences of this type for Australian society. Clearly general deterrence is of particular importance in these circumstances. The heroin was of a particularly high grade. There was a commercial quantity of heroin involved. The offence may well have been regarded as more serious had the quantity been larger although, in this case, there is nothing to suggest that the actual quantity involved was a consideration material to the applicant's involvement. The evidence does not directly establish the motive for the applicant's involvement and does not disclose the true nature of his role. He was not an addict and the quantity and purity of the heroin are compelling indications of a commercial purpose. The only inference open, in my view, as also was the view of the trial judge, is that the applicant's involvement was for personal financial gain. What is known of his role in this obviously organised criminal enterprise has already been canvassed in these reasons.

83 The applicant is in his fifties and a long-time resident of the State, who had apparently established himself in recent years in a sound business. He has shown absolutely no contrition and has offered no explanation that would mitigate his involvement in this offence. He did not plead guilty and has not cooperated in any way with law enforcement agencies. I have already noted the matters that have been identified by way of personal mitigating factors including his role in caring for his child. In this last respect it is clear that any term of imprisonment of any significance will adversely affect his relationship with the child.

84 While any appropriate weighing of all of these factors would require a substantial term of imprisonment, weight must also be given to the fact that this is the third conviction of the applicant for an offence of this type. The two previous offences were closely related in time and he was dealt with at the one time. This was in 1978. He was then only 26 years old and a first offender who had previously enjoyed a good record of employment. The sentence then imposed was one of 10 years imprisonment with a non-parole period of 6 years. While these offences occurred over 20 years ago, and his efforts in the intervening years cannot be overlooked, it is of particular concern that despite this earlier experience he was prepared to directly involve himself once again in the same very serious type of organised criminal activity. The legal significance of the earlier convictions, of course, is that the maximum penalty provided by the Parliament is increased from 25 years to life

imprisonment, and the seriousness of his conduct must be viewed in that light.

85 Having regard to these matters, and bearing in mind the sentence imposed in respect of the accomplice Voong, it is my view that a sentence of 17 years imprisonment is warranted in this case. No objection is taken to the approach of the trial judge to the minimum term. In view of the reduction of the head sentence which I propose, I would accordingly reduce the non-parole period to one of 91/2 years imprisonment.

86 For these reasons, I would grant the applicant leave to appeal against the sentence, grant the appeal, and order that the sentence imposed below be set aside. In lieu, I would substitute a sentence of 17 years imprisonment with a non-parole period of 91/2 years. Service of this sentence should commence from 25 May 2001 as was previously ordered.

87 OLSSON AUJ: I have had the advantage of reading the reasons for judgment of Parker J in draft.

88 With respect, I am in general agreement with them and the orders which he proposes. I would merely wish to make some comment on one aspect of the appeal.

89 As Parker J has identified, there can be no question that the circumstances of this case demanded the giving of a clear and appropriate warning to the jury in relation to the evidence of the witness Voong.

90 However, such a warning was not required to be given in some precise, fixed and immutable formula of words. The terms of it had to be adapted to the particular circumstances: (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 ("Longman")).

91 As the learned trial Judge clearly appreciated, it would have been an exercise in futility to solemnly declaim to the jury that it was unsafe to convict the accused on the uncorroborated evidence of a witness who was an accomplice, explain the concept of corroboration and its legal complexities and then tell the jury that, in the instant case, there was no corroboration. Such an approach would, inevitably, have been to infuse an undesirable confusion in the minds of the jurors and possibly deflect them from a proper evaluation of the evidence.

92 In this case it was necessary to tell the jury, in clear terms that they could readily understand, that:

• Voong was an accomplice of the accused in the relevant drug enterprise;

• because of that fact, there were potential dangers in acting on his evidence; and

• the dangers were as explained by the Judge [being those specified in detail as relevant to the particular circumstances revealed by the evidence].

93 The jury was also to be told that, appreciating the dangers identified, it was nevertheless open to them to convict the accused if they were satisfied beyond reasonable doubt of the accuracy of Voong's testimony: (cf Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 at 553).

94 In my view, the learned trial Judge is to be commended for attempting to convey these points to the jury in the simplest possible terms, avoiding unnecessary resort to legal jargon and complication.

95 Such an approach is entirely consistent with what fell from the High Court in Longman. Quite apart from what was said in the joint judgment of Brennan, Dawson and Toohey JJ, to which I have already referred, it is instructive to review the judgment of Deane J at 93 - 94.

96 He there made the point that it is not surprising that one can find support in the cases for a formulation of the relevant rule of practice in a way that does not involve any general, unqualified proposition about it being "dangerous" or "unsafe" to act on the relevant uncorroborated evidence.

97 By way of illustration, he adverted to the dictum of Burt CJ in Miller v The Queen, unreported; SCt of WA; 23 December 1987 that the jury could properly be told that, whilst they were entitled to act on the evidence of the relevant witness alone, they "should exercise considerable caution before doing so", for appropriate detailed reasons to be expressed. Deane J accepted such a formulation with the proviso that it would have been preferable, also, to include reference to a need for the jury to scrutinise the evidence with great care.

98 The direction actually given by the learned trial Judge in the present case is set out, in extenso, by Parker J. It need not here be repeated.

99 She unequivocally identified Voong as an accomplice and person of bad character (who was "up to his neck in dealing in drugs"); and told them that it was traditional to warn juries of the dangers of the evidence of such persons. She then proceeded to outline all of the considerations and risks pertinent to the particular case.

100 She concluded to the effect that the jury should "consider [Voong's] evidence with great care for those reasons". She specifically told them that they were entitled to accept his evidence, but that they must consider the matters to which she had referred carefully in deciding whether they would do so.

101 Like Parker J, I am of opinion that her direction was adequate and appropriate in the circumstances. It would be most unfortunate if this Court was seen to mandate use of a rigid formula of words, borne of a past legal and social environment, which had the practical effect of seeking to qualify or circumscribe the degree of flexibility contemplated by the High Court in Longman. As to what was said in the instant case, the silence of experienced and senior counsel at trial in relation to this aspect of the directions to the jury spoke volumes as to their perception, at the time, of the clarity and appropriateness of what was said to the jury, in light of specific evidence.

102 I consider that there is no substance in the criticisms now sought to be advanced.

Foo v The Queen [2001] WASCA 406

At a glance

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Judgment (166 paragraphs)

Foo v The Queen [2001] WASCA 406 (13 December 2001)

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Cases Cited (18)