Lee, Do Young v Regina; Lee, Seong Won v Regina - [2013] NSWCCA 68 - NSWCCA 2012 case summary — Zoe

NSWNSWCCA

Lee, Do Young v Regina; Lee, Seong Won v Regina

[2013] NSWCCA 68

Court of Criminal Appeal (NSW)|2012-11-13|Before: Basten JA, Hall J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2012-11-13

Before

Basten JA, Hall J

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

Royal Commissions Act 1902 (Cth), 6A State Drug Crime Commission Act 1985 (NSW) State Drug Crime Commission (Amendment) Act 1990 (NSW), Sch 1 Weapons Prohibition Act 1988 (NSW), ss 4, 7 Cases Cited: A v Hayden [No 2] [1984] HCA 67; 156 CLR 532 Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 Baini v The Queen [2012] HCA 59; 87 ALJR 180 Cesan v The Queen [2008] HCA 52; 236 CLR 358 Dib v R (1991) 52 A Crim R 64 Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 Doney v The Queen [1990] HCA 51; 171 CLR 207 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 447 Fleming v The Queen [1998] HCA 68; 197 CLR 256 Fox v Percy [2003] HCA 22; 214 CLR 118 Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 Hargan v The Queen [1919] HCA 45; 27 CLR 13 Hocking v Bell [1945] HCA 16; 71 CLR 430 Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Moors v Burke [1919] HCA 32; 26 CLR 265 Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 The Queen v Apostilides [1984] HCA 38; 154 CLR 563 The Queen v Ireland [1970] HCA 21; 126 CLR 321 The Queen v Nguyen [2010] HCA 38; 242 CLR 491 R v Birks (1990) 19 NSWLR 677 R v CB; NP v R [2011] NSWCCA 264 R v Klamo [2008] VSCA 75; 18 VR 644 R v R (1989) 18 NSWLR 74 R v Scott (1996) 131 FLR 137 R v Seller; R v McCarthy [2013] NSWCCA 42 R v Wan [2003] NSWCCA 225; 140 A Crim R 513 Raad v R [2012] NSWCCA 268 Raspor v The Queen [1958] HCA 30; 99 CLR 346 Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 SD v New South Wales Crime Commission [2013] NSWCA 48 Simic v The Queen [1980] HCA 25; 144 CLR 319 SKA v The Queen [2011] HCA 13; 243 CLR 400 Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Texts Cited: Frederick Pollock and Robert Wright, An Essay on Possession in the Common Law (1888)

[8]

HEADNOTE [This headnote is not to be read as part of the judgment] On 7 December 2009, New South Wales Police searched an apartment in Waterloo, Sydney. During the search, the Police discovered a number of firearms and firearms accessories, a quantity of white powder (later found to contain pseudoephedrine) and a large amount of cash. Some of these items were found in the laundry of the apartment; others were found in the locked main bedroom, together with papers in the name of Jason Lee. Mr Seong Won Lee, who lived in the apartment at the time, was charged with several offences relating to the weapons and drugs found in the laundry. He was convicted on all counts relating to the weapons and of knowingly taking part in supplying the drugs. Mr Jason Lee was charged with offences relating to the weapons and drugs found in both the laundry and the bedroom. He was convicted on all counts related to items found in the bedroom and of supplying the drugs found in the laundry. During 2009, investigations had been underway into the importation of washing powder from Korea, by a company associated with Mr Brendan Pak. During the appellants' trial, Brendan Pak gave evidence that supported the Crown case that the appellants were involved in the supply of pseudoephedrine. Brendan Pak was a witness who "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings [against the appellants]", within the terms of s 165(1)(d) of the Evidence Act 1995 (NSW). Each of the appellants had been summoned to appear at a hearing of the Crime Commission for examination, pursuant to s 16 of the New South Wales Crime Commission Act 1985 (NSW). Jason Lee appeared before the Crime Commission before the search had been carried out and before he was charged. Seong Won Lee appeared after he was charged with the firearms offences, but before the powder had been identified as containing drugs, and before he was charged with supply of the drugs. His questioning did not relate to the firearms charges. Each of the appellants was required to answer questions and, in the case of Jason Lee, to produce certain documents. Commission staff showed these documents to persons whose signatures appeared on them. Statements were obtained from these signatories and copies of the compelled documents were attached to the statements. Section 13 of the Crime commission Act relevantly provided: "13 Hearings ... (9) The Commission may direct that: (a) any evidence given before it, (b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11, (c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or (d) the fact that any person has given or may be about to give evidence at a hearing, shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence." The Commissioner gave a non-publication direction in respect of evidence given during Jason Lee's hearing, pursuant to s 13(9) of the Crime Commission Act. No similar order was made with respect to Mr Seong Won Lee's evidence. Before the trial, the Commissioner released the transcripts of the appellants' evidence to the Director of Public Prosecutions, together with the statements attaching documents compelled from Jason Lee. The Director conceded that he had been unlawfully supplied with the transcripts of the interviews. The present appeal involved challenges by each of the appellants to their respective convictions. The issues for determination on appeal were: (i) whether the prosecutor's possession or use of the appellants' transcripts of interview denied the appellants' right to a fair trial or created a miscarriage of justice; (ii) whether the trial judge failed to give adequate directions to the jury as to the unreliability of the evidence of Brendan Pak; (iii) whether there was a miscarriage of justice, arising because the verdicts were unreasonable and unsupported by the evidence; (vi) whether the trial of Jason Lee miscarried in respect of counts 5 and 8 because the trial judge gave directions as to joint possession regarding counts alleging individual possession; (v) whether the trial judge gave erroneous directions regarding Jason Lee's possession of drugs found in the laundry in count 6, and (vi) whether, in relation to evidence of conversations between Jason Lee and Brendan Pak, the prosecutor relied on "consciousness of guilt reasoning" in breach of the trial judge's directions. The Court held, dismissing the appeal: In relation to (i) (per Basten JA, Hall and Beech-Jones JJ agreeing)

Accepting that the obligation to make a direction protective of a fair trial has arisen, it does not follow that all forms of publication or dissemination of the material must be prohibited. The proper construction of the Crime Commission Act depends in part upon general law principles governing criminal investigations and trials. However, none of the authorities relied upon addressed the question whether the disclosure of information to the prosecutor could lead to a miscarriage of justice at a criminal trial. The closest the authorities approached the present case was in expressing opinions as to the circumstances in which there might be prejudice to a fair trial, sufficient to require a commission to make a non-publication order. Accordingly, the reasoning in these cases does not govern the present case: [54], [60], [62] and [85]. SD v New South Wales Crime Commission [2013] NSWCA 48; Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188; NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281; Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258; R v CB; MP v R [2011] NSWCCA 264; R v Seller; R v McCarthy [2013] NSWCCA 42 considered and distinguished.
Jason Lee did not demonstrate that the release to the prosecutor of the transcripts of his interviews with the Commission, or the documents produced under compulsion, created any practical unfairness. The compelled documents did not preclude any strategy otherwise available to the defence and, having been found independently during a police search, were in any event available to be tendered. Regarding the transcripts, nothing in them related to the trial as it in fact ran: [146], [147] and [149].
Seong Won Lee did not establish a miscarriage of justice for three reasons. First, there is no authority for proposition that, merely because the prosecution possesses inadmissible material potentially relevant to the defence of the accused, the trial will therefore be unfair. Second, there was no objective unfairness in the conduct of the trial resulting from the dissemination of his interview. Third, no objection was taken at trial, despite the appellant being well aware of all the material in the prosecution brief well before the trial commenced. Where no actual unfairness arose in the trial, this last factor is itself fatal to this ground of appeal: [162], [163] and [164]. Baini v The Queen [2012] HCA 59; 87 ALJR 180 considered. In relation to (ii) (per Basten JA, Hall and Beech-Jones JJ agreeing)
The jury understood that Brendan Pak had changed his story after threats that he would be charged and following statements which appeared to promise a financial benefit. The failure of the judge to give the weight of his authority to such concerns was of limited significance. Reading the summing up as a whole, the jury can have been left in no doubt as to the dangers associated with reliance upon Brendan Pak's evidence, to which reference was made on multiple occasions: [172] and [174]. In relation to (iii) (per Basten JA, Hall and Beech-Jones JJ agreeing)

[10]

1BASTEN JA: On 7 December 2009 New South Wales Police executed a search warrant at an apartment in Lachlan Street, Waterloo in inner Sydney. In the course of the search they discovered two weapons (with ammunition and accessories) and a quantity of white powder (in a box labelled washing powder) later found to contain pseudoephedrine. Mr Seong Won Lee, who was then living in the apartment with his girlfriend, returned in the course of the police search. He was arrested and charged with four counts relating to a sub-machine gun and accessories discovered in the laundry of the apartment. The other gun (a revolver) and a quantity of white powder were found in the main bedroom of the apartment, together with various papers in the name of Jason Lee, a name by which Mr Do Young Lee is also known. The main bedroom in which this material was discovered was locked. A large amount of cash, in excess of $1 million, was also discovered in the locked bedroom. 2Mr Jason Lee is the father of Mr Seong Won Lee. On 14 December 2009 Mr Jason Lee was charged in respect of the cash, which was alleged to be the proceeds of crime, with possession of the machine gun and accessories in the laundry, and with possession of the revolver found in the locked bedroom. 3There was some delay in identifying the white powder as containing pseudoephedrine, both appellants being charged with two further offences involving supply of prohibited drugs on 13 May 2010 (Jason Lee) and 17 May 2010 (Seong Won Lee). 4The applicants were tried together in the District Court, a jury returning verdicts of guilty on various counts on 16 March 2011. Mr Jason Lee was sentenced by Solomon DCJ to a non-parole period of nine years, six months with a four year balance of term, giving a total sentence of 13 years, six months, commencing on 14 December 2009. Mr Seong Won Lee was sentenced to a non-parole period of five years six months, with a balance of term of three years giving a total sentence of eight years six months, commencing on 30 April 2010. 5The present appeal involved challenges by each of the offenders to their respective convictions. Because the grounds do not involve questions of law alone, leave is required: Criminal Appeal Act 1912 (NSW), s 5(1)(a). The issues raised with respect to ground 1 give rise to questions of general public importance concerning the powers of the New South Wales Crime Commission (referred to below as "the Crime Commission" or "the Commission") and the protection of the fairness of criminal trials. There should be a grant of leave to appeal against conviction on ground 1 in each case. The other grounds, which concern the reliability of the key witness for the prosecution and challenge directions in respect of joint possession of drugs and a firearm located in the laundry, and challenge the verdicts as unsafe and unsupported by the evidence. Leave to appeal is required and should be refused in the case of Jason Lee, for grounds 2, 3, 4 and 6 and in the case of Seong Won Lee, for ground 2. Leave, if required should be granted in relation to the remaining grounds. Accordingly it is convenient hereafter to refer to the applicants as the appellants. (They will be addressed by name when it is necessary to distinguish their respective positions.)

[11]

Issues on appeal 6By indictment dated 31 January 2011, the Director laid eight charges, all of which were said to have occurred on 7 December 2009 at Waterloo. In short form they were as follows: (1) possess a prohibited firearm, namely a submachine gun (both appellants); (2) possess a prohibited weapon, namely a silencer (both appellants); (3) possess a prohibited weapon, namely two firearm magazines (both appellants); (4) possess a prohibited weapon, namely a brass catcher (both appellants); (5) possess a pistol, namely a six chamber revolver (Mr Jason Lee); (6) supply a prohibited drug, namely pseudoephedrine, in an amount not less than the large commercial quantity (both appellants); (7) knowingly take part in the supply of a large commercial quantity of pseudoephedrine (Mr Seong Won Lee), and (8) supply not less than the large commercial quantity of pseudoephedrine (Mr Jason Lee). 7On each of counts 1-4, being the firearms counts relating to items found in the laundry of the unit in Waterloo, Mr Seong Won Lee was convicted and Mr Jason Lee was acquitted. Mr Seong Won Lee was also found guilty on count 7, but acquitted on count 6. Thus, Mr Seong Won Lee was acquitted of supply, but convicted of knowingly taking part in the supply of the drugs located in the laundry. 8Mr Jason Lee was found guilty on counts 5, 6 and 8. Counts 5 and 8 (brought only against Mr Jason Lee) related to the weapon and drugs found in the locked bedroom. Count 6 related to a deemed supply of the pseudoephedrine located in the laundry. Thus, the jury acquitted Mr Jason Lee of the four charges relating to the firearms found in the laundry, but found him guilty in respect of supply of the pseudoephedrine found in the locked bedroom and that found in the laundry. 9Following amendments made between the first and second days of the appeal, the grounds raised by Mr Jason Lee were as follows: 1(a) The Trial miscarried by virtue of an irregularity going to the root of the proceedings, namely the illegal release of the appellant's compulsory examination before the NSW Crime Commission to the DPP and its use by the prosecutor in the trial. 1(b) There was a miscarriage of justice in the appellant's trial, occasioned by the use of the documents and evidence compelled from the appellant on or about 26 November 2009 and 1 December 2009 in the brief of evidence and the trial of the appellant on charges of supply prohibited drugs and possession of a revolver. 2 The Trial judge erred in his directions as to the unreliability of Pak's evidence, such as to constitute a miscarriage of justice in the trial. 3 The verdicts on Counts 5, 6 and 8 [were] unreasonable and cannot be supported by the evidence. 4 The trial on Counts 5 and 8 miscarried by virtue of directions as to joint possession being given on Counts 5 and 8, when in fact those Counts were Counts alleging individual possession of a firearm (Count 5) and a large commercial quantity of pseudoephedrine (Count 8). 5 The directions of the trial judge in relation to the element of possession by the appellant of the subject found in the laundry (Count 6) were erroneous. 6 The trial miscarried owing to the Crown prosecutor relying on consciousness of guilty reasoning in relation to a conversation (evidence Pak) and telephone calls (Exs AN, AO) between Pak and the applicant in breach of the trial judge's ruling and the failure of the trial judge to direct the jury as to the proper use that could be made of the conversations and the manner in which they could not be used. 10In relation to Mr Seong Won Lee the grounds, as amended, were as follows: 1(a) The Trial miscarried due to the prosecutor's possession of the appellant's compulsory interview which denied the appellant's right to a fair trial. 1(b) There was a miscarriage of justice in the appellant's trial, occasioned by the use of the evidence compelled from the appellant on or about 16 December 2009 in the brief of evidence and the trial of the appellant. 2. The directions given by the learned trial judge in relation to the unreliability of the witness Mr Pak were inadequate. There was a miscarriage of justice. 3. The verdicts of guilty on counts 1, 2, 3 & 4 are unreasonable and cannot be supported having regard to the evidence. 4. The verdict of guilt on count 7 is unreasonable and cannot be supported having regard to the evidence. 11It is convenient to deal first with ground 1 in respect of each appellant, being grounds which raise questions as to the procedures adopted by the Crime Commission. It is then convenient to address the grounds containing precise complaints concerning the directions given at the trial before dealing lastly with the grounds asserting that various verdicts were unreasonable and cannot be supported by the evidence.

[13]

(a) procedural background 12Each of the appellants had, prior to trial, been summoned to appear at a hearing of the Crime Commission for examination, pursuant to s 16 of the New South Wales Crime Commission Act 1985 (NSW) ("the NSW Crime Commission Act"). Each contended that his convictions involved a miscarriage of justice because a transcript of his evidence before the Commission had been released to the Director of Public Prosecutions before the trial. This challenge was formulated in different ways by each appellant and reformulated during the course of the appeal. 13The circumstances of the appellants, relevant to ground 1, varied. It is convenient to set out the general background to both together, but it is necessary to consider the specific circumstance of each appellant separately in applying the relevant principles to the facts. 14The original ground (1(a) in each case) alleged that mere possession by the prosecutor of the transcripts of the Crime Commission interviews with each appellant gave rise to a miscarriage of justice. However, the submissions focused on the assertion that the documents had been furnished to the Director unlawfully. The second limb, alleging "use" of the interviews and (in the case of Jason Lee) certain documents produced under compulsion, in fact raised little more than their availability in the prosecutor's brief. Each limb of this ground gave rise to a factual issue 15The appeal was conducted in two tranches, some months apart, with both parties refining their submissions and proffering further evidence following the first day of the hearing. The appellants accepted that to succeed on ground 1 they needed to demonstrate that the release of the records of the compulsory examinations to the Director had given rise to a miscarriage of justice. However, they did not initially tender the examinations in this Court, so that the argument on the first day proceeded without reference to the content of the critical documents. 16The focus of the appellants' argument changed between the first part of the hearing and the second. On the first day, Mr Thangaraj SC, who appeared for Mr Jason Lee, presented an argument based on the more limited original ground 1 and without reference to the evidence which became available at the second stage of the hearing. At the second stage, Mr Game SC, for Mr Seong Won Lee, gave the argument a different focus, in a manner accepted by senior counsel for Mr Jason Lee: CCA Tcpt, 12/11/12, p 96(50). 17The Commission exercised a number of powers, namely: (a) requiring each of the appellants to attend a hearing before the Commissioner and answer questions; (b) in respect of Mr Jason Lee, requiring production of documents, and (c) releasing the transcripts (and produced documents) to the Director of Public Prosecutions for inclusion in the prosecutor's brief on the trial of the appellants. 18Broadly speaking, each step was said to be beyond the powers of the Crime Commission and, in that sense, unlawful. To understand those submissions it is necessary to consider both the statutory structure within which the Crime Commission operated and the chronology of events in respect of each appellant. 19One aspect of the appellants' cases was common and did not change. Both contended that the consequence of the unlawful conduct of the Crime Commission was that a risk of prejudice was created, so that neither appellant obtained a fair trial. Neither appellant sought to establish any demonstrable element of unfairness and, indeed, they submitted that to adopt such a course would be both unnecessary and inappropriate. 20There was no constitutional challenge to the validity of the legislative scheme under which the compulsory interviews and the notice for production of documents occurred. In a sense that is understandable: there is a long history of legislation, both at federal and State level (and not limited to this country) providing for compulsory interrogation and production of documents in aid of the investigation of criminal and other illegal activity. Rather, the submissions focused on the need for such a legislative scheme to accommodate the essential elements of a criminal trial, which was the ultimate goal of the exercise of the statutory powers. The appellants submitted that it would subvert the primary purpose of the NSW Crime Commission Act to construe the legislation in a way which would undermine the fairness of a criminal trial or give rise to a contempt of the court conducting such a trial. To support that approach, the appellants relied upon aspects of the legislation which demonstrated an intention to avoid undue interference with the traditional elements of the criminal process, with which limitations, it was contended, there had not been compliance.

[14]

(b) concession by Director 21In the first set of written submissions filed by the Crown Advocate on behalf of the Director, dated 21 August 2012, it was conceded that "the dissemination to the DPP was unlawful": par 7. It was further conceded that the appellants' trial miscarried in respect of the drug charges, but not in respect of the weapons charges. It was not accepted that a verdict of acquittal or a permanent stay would be an appropriate remedy: par 8. 22It is desirable to set out the terms of the concession, which was qualified (par 9): "In making such a concession the Crown does not accept that the mere fact that the prosecution was in possession of the transcript unlawfully by itself can, and did in this case, amount to a miscarriage of justice. The question of whether the possession of the transcript amounts to a miscarriage of justice does not turn on the question of possession of the transcript per se, but rather involves a qualitative analysis of the evidence and issues at trial, the nature of the questions asked and the transcript obtained and the chronology in which the transcript came into existence and was disseminated relative to charges laid or contemplated at the relevant time, as well as the role of the recipient in the prosecution team and the purpose of the dissemination. The Crown submits that in each case such individual assessment of that factual matrix would need to be undertaken to determine whether there has been a miscarriage of justice. In making the concession ... the Crown accepts that if the Court undertook the individual assessment required in this matter in relation to [the drug charges]..., the Court would be satisfied that the DPP's possession of the transcript in this case in fact led to a miscarriage of justice." 23As has been noted, when the matter was first listed for hearing, no party sought to make the Crime Commission transcripts available to the Court. The appellants contended that such a course was unnecessary and that a miscarriage flowed from the known circumstances, without reference to the content of the transcripts. The Director submitted that the content was relevant and had been taken into account in making the concession. However, the parties remained at odds as to the appropriate relief and as to whether the dissemination of the transcripts infected the whole of the trial or only so much as concerned the drug charges. 24In the event, it became unnecessary for the Court to explore the propriety of the course adopted by the parties as, following the first day of the appeal, arrangements were made for the Court to have the transcripts of the appellants' evidence before the Crime Commission. Further, the Crown Advocate withdrew the concession that there had been a miscarriage of justice in respect of the drug convictions and submitted that "the answer to the question of whether a miscarriage arose should be the same in relation to both the drugs and the weapons counts": supplementary written submissions, 2 November 2012, par 1. 25Two further aspects of the concession should be identified. First, the circumstances of the appellants differed in that the Commissioner gave a non-publication direction during the hearing with Mr Jason Lee, pursuant to s 13(9) of the Crime Commission Act. No similar order was made with respect to Mr Seong Won Lee's evidence. Nevertheless, the Crown Advocate accepted that such an omission was not fatal to the case of Mr Seong Won Lee and that the release of the transcripts was the same in each case, and had been irregular. That there may be a limitation on the power of dissemination, whether or not an order has been made under s 13(9), is consistent with the analysis of the Court of Appeal in SD v New South Wales Crime Commission [2013] NSWCA 48 at [33]. 26Secondly, as was made clear in oral submissions, while the Commissioner had approved the release of the transcripts to the Director, "when the Commissioner turned his mind to disseminating the documents it was not ... for a proper purpose because it was ... to assist the DPP": CCA Tcpt, 13/11/12, p 24(5). 27There was an additional issue with respect to the circumstances of Mr Jason Lee. In the course of giving evidence before the Crime Commission, he was directed to produce documents said to evidence the source of certain amounts of money in his possession. The documents were shown by staff of the Crime Commission to persons whose signatures appeared on them ("the signatories"). Statements were obtained from the signatories and copies of the documents were annexed to the statements. Those statements, with the annexed documents, were provided to the prosecutor, with the transcripts of his interviews. 28The appellant Jason Lee did not complain about disclosure of the documents to the signatories, nor did he complain about the provision to the prosecutor of the statements obtained from the signatories. Rather, he asserted that the release to the prosecutor of the statements annexing the compelled documents gave rise to a miscarriage of justice. Because the original ground 1 did not refer to the release of the compelled documents, the concession made by the Crown Advocate did not in terms extend to the provision of this material to the prosecutor. The Director's position appeared to be that because the statements and the annexed documents constituted evidence derived from compelled material, as to which there was no immunity from use under the Crime Commission Act, their disclosure could not give rise to a miscarriage of justice.

[15]

(c) miscarriage of justice 29This ground engaged the third limb of the criteria for a criminal appeal: the Court shall allow an appeal against conviction if it is of the opinion that there has been "a miscarriage of justice" on any ground whatsoever: Criminal Appeal Act, s 6(1), the scope of which language was recently explained by Gageler J in Baini v The Queen [2012] HCA 59; 87 ALJR 180 at [53]-[56]. 30Gageler J in Baini stated that the third limb will be made out "only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted": at [54], referring to TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [72]-[73] (McHugh J) and Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [38], [49] and [60] (McHugh and Gummow JJ) (in a case where the trial judge had failed to give a direction to the jury, which was not sought by the appellant at trial). 31The effect of the word "other" is to indicate that the language of miscarriage is additional to the first two limbs, namely that the verdict was unreasonable or cannot be supported having regard to the evidence available at trial (the first condition) and that the judgment below was afflicted by a "wrong decision of any question of law" (the second condition). 32Most cases successfully invoking the third limb fall into one of the following categories: (a) conduct of the trial judge - Simic v The Queen [1980] HCA 25; 144 CLR 319 (inaccurate direction to the jury as to the evidence); Cesan v The Queen [2008] HCA 52; 236 CLR 358 (judge falling asleep and distracting jury from its task); (b) the conduct of the prosecution - The Queen v Apostilides [1984] HCA 38; 154 CLR 563 (failure to call a witness); (c) the conduct of defence counsel - R v Birks (1990) 19 NSWLR 677; Nudd v The Queen [2006] HCA 9; 80 ALJR 614; TKWJ (incompetence, including failing to call available evidence). 33In each of these cases, things were done, or not done, in the course of the trial which were capable of affecting the deliberations and verdict of the jury. 34The words "on any other ground" have been said not to postulate demonstrable error, but "simply require that 'something occurred or did not occur' in the trial": TKWJ at [30] (Gaudron J). The internal quotation in that passage comes from the judgment of Doyle CJ in R v Scott (1996) 131 FLR 137 at 152 where, with the agreement of Cox and Matheson JJ, the Chief Justice noted that the third condition was engaged "where something occurred or did not occur such that the trial became unfair". Generally, the act or omission will have occurred "in the trial": TKWJ at [30]. Nevertheless, as Doyle CJ recognised, it is the effect of the act or omission on the trial, rather than the circumstances of its occurrence which is critical. A trial may be rendered unfair by extraneous factors, such as delay in bringing a prosecution - Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 - or the inability of an accused to obtain legal representation: Dietrich v The Queen [1992] HCA 57; 177 CLR 292. 35In addition, there are cases involving improper or unlawful conduct by the authorities investigating crime. However, misconduct of this kind is usually dealt with by excluding evidence, such as an induced confession, the proceeds of an unlawful search, or the product of entrapment. These examples resonate in the present case. First, inducing a confession by threats or trickery does not directly render the subsequent trial unfair. Secondly, in rejecting a defence of entrapment, in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19, Mason CJ, Deane and Dawson JJ noted that even a direction or order of a superior officer in the government would not provide a defence to a criminal charge: at 29-30, referring to A v Hayden [No 2] [1984] HCA 67; 156 CLR 532. However, their Honours referred to the discretionary power to exclude unlawfully obtained evidence at 31-32: "More importantly, the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime." 36As explained by Barwick CJ in The Queen v Ireland [1970] HCA 21; 126 CLR 321 at 334-335, "the discretion to exclude evidence on public policy grounds extended to evidence obtained by 'unfair' as well as 'unlawful' conduct on the part of law enforcement officers: Ridgeway at 36". 37There remained an issue in Ridgeway as to whether the proceedings should have been permanently stayed. The majority held that they should, not on the basis of an abuse of process, but because, without the evidence of possession of heroin, procured by law enforcement officers, the prosecution was doomed to fail. With respect to the question of abuse, both Brennan J (at 46) and Toohey J (at 61) referred to what they had said on that topic in Jago. Both they and Gaudron J (who considered the proceedings to be an abuse) and McHugh J (who would have countenanced a stay in circumstances where the prosecution would tend to bring the administration of justice into disrepute - at 92) accepted that a stay would be appropriate at least where proceedings were commenced for an improper purpose or were not capable of being the subject of a fair trial: at 46 (Brennan J) and 61 (Toohey J).

[16]

(d) statutory scheme for compulsory examination 38The relevant legislation is the NSW Crime Commission Act, since repealed and replaced by the Crime Commission Act 2012 (NSW). (Many of the provisions discussed below have been retained in the 2012 Act, but there has been a substantial restructuring, with some changes that are more than cosmetic.) 39The Crime Commission was originally established in 1985 as the State Drug Crime Commission: State Drug Crime Commission Act 1985 (NSW), retitled in 1991: see State Drug Crime Commission (Amendment) Act 1990 (NSW), Sch 1(1). The objects of the Act have, from 1 January 1989, been expressed in the following terms: "3A Objects (1) The principal object of this Act is to reduce the incidence of illegal drug trafficking. (2) The secondary object of this Act is to reduce the incidence of organised and other crime." 40The following functions of the Commission, relevant for present purposes, are identified in s 6: "6 Principal functions of the Commission (1) The principal functions of the Commission are: (a) to investigate matters relating to a relevant criminal activity referred to the Commission by the Management Committee for investigation, (b) to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions ... ... (2) If the Commission obtains any evidence, being evidence that would be admissible in the prosecution of a person for an indictable offence (other than evidence of a relevant offence which is furnished to the Director of Public Prosecutions) against a law of New South Wales ... the Commission shall furnish that evidence: ... (b) in the case of an offence against a law of New South Wales - to the Director of Public Prosecutions, together with any recommendation as to action the Commission considers should be taken in relation to that evidence. ... (5) In exercising its principal functions, the Commission shall give high priority to matters relating to illegal drug trafficking, as far as practicable." 41Sub-sections 6(1) and (2) distinguish between "a relevant offence" and indictable offences other than relevant offences. The term "relevant offence" is broadly defined to mean a "serious drug offence", an offence involving fraud that the Management Committee is satisfied "is sufficiently serious to warrant its investigation by the Commission" and any other offence as to which the Management Committee is satisfied both that its investigation is in the public interest and that the use of the Commission's functions "may be necessary to fully investigate the offence": s 3(1), relevant offence. (There are exclusions not presently relevant.) The Act defines "relevant criminal activity" to mean "any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, or may be about to be, committed": s 3(1), relevant criminal activity. 42The Commission is also empowered, with the approval of its Management Committee, to "disseminate intelligence and information to such persons or bodies as the Commission thinks appropriate" (s 7(a)) and to "co-operate and consult with such persons or bodies as the Management Committee thinks appropriate": s 7(b). In addition to specific powers referred to below, there is the following general provision: "8 Incidental powers of Commission (1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions, and any specific powers conferred on the Commission by this Act shall not be taken to limit by implication the generality of this section." 43The first function identified in s 6(1)(a) assumes referral of a matter to the Commission by the Management Committee. It was part of the appellants' case that there was an implied temporal condition limiting the scope of any particular reference. It is therefore necessary to note the provisions establishing the Management Committee and the terms on which references could be made. The complaint of unlawful dissemination required a determination as to which persons (particularly identified police officers) were properly classified as part of the Crime Commission. 44Part 3 of the NSW Crime Commission Act established "the Management Committee" with four members, being the Minister for Police, the Commissioner of Police, the Chair of the Board of the Australian Crime Commission and the Commissioner appointed under s 5A of the Act: s 24(1). The functions of the Management Committee are identified in the following provisions: "25 Functions of the Management Committee (1) The principal functions of the Management Committee are: (a) to refer (by a written notice) matters relating to relevant criminal activities to the Commission for investigation, and ... (a2) to arrange (in accordance with section 27A) for police task forces to assist the Commission to carry out investigations into matters relating to relevant criminal activities, and (b) to review and monitor generally the work of the Commission, and (c) to give approvals for the purposes of section 7. (2) The Management Committee is not to refer a matter to the Commission for investigation unless it is satisfied that ordinary police methods of investigation into the matter are unlikely to be effective. (3) The Management Committee may, by the terms of a reference, impose limitations: (a) on the carrying out of an investigation by the Commission into any matter relating to a relevant criminal activity referred to the Commission for investigation .... ... (4) The notice referring a matter relating to a relevant criminal activity to the Commission for investigation: (a) may describe the matter (wholly or partly) by reference to information given at a meeting of the Management Committee or other extrinsic material, whether or not the information or material is included in or annexed to the notice, and (b) must describe the general nature of the circumstances or allegations constituting the relevant criminal activity, and (c) must set out the general purpose of the investigation. ... (6) In exercising its principal functions, the Management Committee shall give high priority to matters relating to illegal drug trafficking, as far as practicable." 45The particular limitation relied on by the appellants, found in s 25(2), is the need for the Management Committee to be satisfied that ordinary police methods of investigation are unlikely to be effective, before referring a matter to the Commission. By implication, the appellants submitted, the referral must effectively terminate once that condition is fulfilled, which can be no later than the laying of criminal charges. The disparity in language found in s 25(2) and the sub-paragraphs of the definition of "relevant offence" was not addressed. This submission is addressed at [121]-[122] below. 46The Management Committee is authorised to obtain assistance from the Commissioner of Police: "27A Police task forces to assist Commission (1) The Management Committee may make arrangements with the Commissioner of Police for a police task force to assist the Commission to carry out an investigation into matters relating to a relevant criminal activity. (2) In assisting the Commission to carry out such an investigation, the police task force is (subject to subsection (3)) under the control and direction of the Commissioner of Police. (3) The Management Committee may give directions and furnish guidelines to the Commission and the Commissioner of Police for the purpose of co-ordinating such an investigation, and the Commission and the Commissioner shall comply with any such directions and guidelines." 47In addition there is provision for the Commission to employ staff under the Public Sector Employment and Management Act 2002 (NSW), engage persons as consultants, arrange for the use of any staff of a Government department and arrange for "police officers ... to be made available (by way of secondment or otherwise) to perform services for the Commission": s 32. A police officer performing services for the Commission retains his or her rank, seniority and remuneration as a police officer "and may continue to act as a constable": s 32(6). It appears from the heading to the section that all these people are to be considered "staff of the Commission", that term not being otherwise defined. 48It appeared that the officers involved in investigating the activities of the appellants were made available to the Commission pursuant to s 32, rather than as part of a police task force established under s 27A. There are number of provisions relating to confidentiality or secrecy. Thus, s 29 provides: "29 Secrecy (1) This section applies to: (a) a member of the Commission, and (b) a member of the staff of the Commission, and (c) a member of a police task force assisting the Commission in accordance with an arrangement under section 27A, and (d) a person to whom information is given either by the Commission or by a person referred to in paragraph (a), (b) or (c) on the understanding that the information is confidential. (2) A person to whom this section applies who, either directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act, and either while the person is or after the person ceases to be a person to whom this section applies: (a) makes a record of any information, or (b) divulges or communicates to any person any information, being information acquired by the person by reason of, or in the course of, the exercise of functions under this Act, is guilty of an offence punishable, on conviction, by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding one year, or both. (3) A person to whom this section applies shall not be required to produce in any court any document that has come into the person's custody or control in the course of, or by reason of, the exercise of functions under this Act, or to divulge or communicate to a court a matter or thing that has come to the person's notice in the exercise of functions under this Act, except where the Commission, or a member in the member's official capacity, is a party to the relevant proceedings or it is necessary to do so: (a) for the purpose of carrying into effect the provisions of this Act, or (b) for the purposes of a prosecution instituted as a result of an investigation conducted by the Commission in the exercise of its functions. (4) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. produce includes permit access to." 49The first specific power engaged in the present case was the power of the Commission to summon a person to appear before it to give evidence: s 16(1). A person served with a summons is required to appear as a witness at a hearing before the Commission: s 18(1). Each of the appellants was summoned and appeared. On the first day of the appeal no issue was raised as to this stage of the investigative process. On the second day, officers of the Commission were cross-examined with respect to the fulfilment of the procedural steps initiating the investigation. 50The conduct of a hearing by the Commission is provided for in s 13(1)-(5). A witness is not entitled to refuse to answer questions on the ground that the answer may incriminate or tend to incriminate the witness: s 18B(1). However, so long as objection is taken the answer is "not ... admissible in evidence against the person in any civil or criminal proceedings": s 18B(1), (2) and (3)(b). Again, no issue arose in respect of this step in the process: each of the appellants was warned of the obligation to answer questions and took an objection in an appropriate form. Accordingly, the answers were subject to what is commonly described as "use immunity". This label is convenient, but its meaning should not be misunderstood: it does not mean that the answers cannot be used by the Commission, but only that they cannot be proffered in evidence against the person in (relevantly) criminal proceedings. Thus, if a proper objection is taken, the function of the Commission to assemble admissible evidence and furnish it to the Director of Public Prosecutions would arguably not be engaged in respect of that material: s 6(1)(b) and (2) and [127] below. 51The aspect of the process which was central to the appellants' argument in respect of ground 1 was the power, and in some circumstances the obligation, to direct that evidence not be published. It is desirable to set out in full the relevant provisions of s 13 dealing with the powers of the Commission in this regard and the circumstances in which publication may nevertheless occur: "13 Hearings ... (9) The Commission may direct that: (a) any evidence given before it, (b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11, (c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or (d) the fact that any person has given or may be about to give evidence at a hearing, shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. (10) Where: (a) a person has been charged with an offence before a court of the State, and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission, being evidence in relation to which the Commission has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person, the court may give to the Commission a certificate to that effect and, if the court does so, the Commission shall make the evidence available to the court. (11) Where: (a) the Commission makes evidence available to a court in accordance with subsection (10), and (b) the court, after examining the evidence, is satisfied that the interests of justice so require, the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person." 52The operation of s 13(9) was the primary basis for the complaint by the appellants that the records of their examinations were illegally or unlawfully released. The provision confers power to direct that certain material "shall not be published." The last limb of s 13(9) obliges the Commission to give "such a direction" in two circumstances. The first involves the possibility of prejudice to the safety or reputation of a person. Little attention was paid to that limb in the present case, there being no suggestion that it was engaged. However, in seeking to identify the scope and purpose of the provision, these words should not be disregarded. Such a ruling might be required, for example, to protect the identity of a police informer, an established head of public interest immunity from disclosure. 53The second limb, on which emphasis was placed, was the possibility of prejudice to the fair trial of a person. Three aspects were not in dispute. It was accepted that the low threshold generally associated with the word "might" applied to the question of prejudice to a fair trial, and not merely to prejudice to the safety or reputation of a person. Further, it was accepted that such prejudice might be anticipated whether or not a person had been charged with an offence. Finally, it was accepted that the Commission was obliged to give a direction which would have the effect of removing the relevant risk of prejudice to the fair trial of a person, where such a possibility arose. 54There were two kinds of direction envisaged by the provision, namely an absolute non-publication direction and, in the alternative, one which specified that publication might be made only in a particular manner and to specified persons. Accepting that the obligation to make a direction protective of a fair trial has arisen, it does not follow that all forms of publication or dissemination of the material must be prohibited: cf SD v Crime Commission at [29]. That point was important in the present case: there was no suggestion that the contents of the interviews might be published in the media, with the potential to prejudice the appellants in the eyes of prospective jurors. Rather, the issue related solely to dissemination by the Crime Commission itself of the transcripts of the interviews to the Director of Public Prosecutions. On one view, s 13(9) was not directed to such dissemination. Ordinarily, non-publication orders are not addressed to the body making them, but to the third parties who may come into possession of confidential information. Other provisions noted above, including s 29, are directed to the maintenance of secrecy within the Commission. On this view, a direction under s 13(9) limits the use which can be made of disseminated material, rather than limiting dissemination by the Commission itself. The submissions, however, did not focus on that distinction. 55A person summonsed by the Commission, and required to answer questions will know about, and may well be in a position to challenge, the exercise of the power if it were thought to be abusive. That is not necessarily true in respect of the publication of material obtained during a hearing. Indeed, it may be inferred from the exchanges at the pre-trial hearing and even the submissions in this Court that the appellants did not know what direction or directions had been given in respect of non-publication of the transcript of their examinations. Nor, until the transcripts were put in evidence in this Court, was the Court aware of the terms of the original direction, although the evidence called by the Director indicated that the Commissioner had given approval for the release of the transcripts to the Director. The Director's concession that the Commissioner could not validly disseminate material to any person not part of the Commission avoided the need to consider the true scope and operation of s 13(9). Thus, the issues raised by the appeal have come to be addressed on a legal assumption which might warrant further inquiry in another case. 56Two further aspects of the legislative regime should be noted. First, there is nothing in the NSW Crime Commission Act which expressly states that an investigation cannot proceed once criminal charges have been laid, whether against a person proposed to be examined by the Commission, or another person. Nevertheless, examining a person against whom a charge has been laid in relation to matters closely related to that charge might be considered oppressive and an abuse of power. 57Secondly, it was accepted that neither s 18B, nor any other provision of the NSW Crime Commission Act, provided what is commonly described as "derivative use immunity", being immunity from having tendered in evidence against the person in a criminal trial material which was not information obtained under compulsion, but obtained as a result of information obtained under compulsion. In other words, where answers given under compulsion lead to the issue of a search warrant, execution of which revealed evidence incriminating the person examined, although his answers could not be used in a criminal proceeding, the product of the search could be. 58The objects and purposes of the Act, understood in the light of the functions of the Crime Commission and the powers conferred on it, demonstrate an expectation that an investigation by the Commission may lead to the acquisition of evidence which can be used in criminal proceedings. That evidence may result from the adoption of procedures which would be unlawful under the general law. Accordingly, the mere fact that information has been obtained, which would not have been available under general police powers of investigation and that the information has been passed on to a prosecutor, does not mean that a subsequent trial will be unfair.

[17]

(e) Commonwealth legislation 59Similar legislation to the NSW Crime Commission Act has existed for some years in federal jurisdiction. The legislation, originally the National Crime Authority Act 1984 (Cth), is now the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The structure and language of the ACC Act vary in some respects from the NSW Crime Commission Act but, relevantly for the argument based on s 13(9), the appellants relied on cases concerned with s 25A(9) of the ACC Act, which was in substantially similar terms. (f) authorities 60The proper construction of the NSW Crime Commission Act depends in part upon general law principles governing criminal investigation and trials. The cases reveal how statutory conferral of additional powers has been reconciled with the essential requirements of a fair trial in a variety of contexts. 61The broad approach to questions of construction relied on by the appellants should be accepted. It is amply supported by the authorities. More specific reference will be made to those cases relevant to specific issues below, but it is convenient to note two authorities at this stage. First, in Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 the High Court held that it would be a contempt for a Royal Commission to compel an accused person to answer questions in relation to an offence with which he stood charged in pending criminal proceedings. Accordingly, the proposed interrogation, although to be conducted in private, was restrained. Secondly, in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456 this Court held that a statutory power to require a person to provide information or answer questions, or to produce any record or document, did not extend to a defendant in pending criminal proceedings: at [182] (Spigelman CJ, Hidden and Latham JJ agreeing). 62Of the authorities relied upon, none was directed to the question raised by ground 1, namely whether the disclosure of information to the prosecutor could lead to a miscarriage of justice at a criminal trial. One category of cases concerned a pre-emptive injunction directed to a commission with respect to a proposed hearing before it. Injunctive relief was sought based on an alleged tendency for the investigation to interfere with, or otherwise prejudice, a forthcoming criminal trial. The operation of a provision such as s 25A(9) of the ACC Act (or s 13(9) of the State Act) may be indirectly relevant in such proceedings because it provides a mechanism by which a commission could prevent the results of its investigations contaminating a criminal trial. Thus, the closest the authorities approached the present case was in expressions of opinion as to the circumstances in which there might be prejudice to a fair trial, sufficient to require a non-publication order to be made by a commission. 63A second category of cases concerned applications for stays of criminal trials, on the basis of an apprehension of prejudice to a fair trial resulting from the manner in which a particular investigation had been conducted. These cases are of closer relevance because they considered the effects of certain conduct on the part of a commission in respect of a proposed criminal trial; nevertheless, the issues raised are not identical with those which arise in the present case in which it is necessary to ask whether there has been a substantial miscarriage of justice as a result of those events, in the light of an actual criminal trial which has been completed. 64Hammond v The Commonwealth concerned an examination to being conducted at a Royal Commission. It was accepted that the subject matter of the examination would be the person's involvement in criminal conduct for which he was about to stand trial. It was also accepted that the interview would be conducted in private. What was less clear was the extent to which the Court assumed that a transcript would be taken, but would not be disclosed by the Commissioner, prior to completion of the trial. 65Hammond involved an inquiry into meat exports being conducted by Woodward J under the Royal Commissions Act 1902 (Cth). In September 1981 commissions were issued by the Commonwealth and Victorian governments to the one Commissioner. On 19 October 1981 an information was laid against the plaintiff, Mr Hammond, charging a conspiracy with respect to a prohibited export. On 23 April 1982 he was committed for trial although, by 4 August 1982 when the matter came before the High Court, no date had been fixed: 152 CLR at 193. In June 1982 the Commissioner heard evidence with respect to the alleged conspiracy for which the plaintiff was then awaiting trial and proposed to call the plaintiff himself. The Commissioner directed that the further evidence be taken in confidential session: at 194. When the plaintiff was called to give evidence, he refused to answer questions, although directed to do so. His refusal became the subject of a referral so that consideration could be given to bringing proceedings against him under the Royal Commissions Act. Before he could be examined further, proceedings in the original jurisdiction of the High Court sought an injunction restraining the continuation of the Commission hearing in respect of his examination. The Court unanimously granted the injunction. Gibbs CJ (with whom Mason and Murphy JJ agreed) noted at 197: "It was common ground that if the plaintiff were again examined at the inquiry he would be bound to answer questions designed to establish that he committed the offence with which he is charged, and that his objection on the ground that his answers might incriminate him would not constitute a defence to a prosecution for failing to answer the questions." 66Although the legislation contained provisions which appeared to have that effect, the Court was by no means satisfied that they would apply in such a case. Brennan J stated at 203: "An accused person may not be deprived of his immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice." 67Despite the last remark, it appears that the whole Court accepted what was described by Gibbs CJ as "common ground". On that basis, the Chief Justice concluded at 198: "Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence." 68Deane J considered that neither the Parliament nor the executive government of the Commonwealth or a State "is competent to prevent or prejudice the judicial exercise by a court of part of the judicial power of the Commonwealth by the type of interference with the due administration of justice in a particular case which would ordinarily constitute contempt of court": at 206. Deane J would have gone further than other members of the Court and would have restrained the Commissioner from reporting to the governments his findings with respect to the plaintiff's involvement in the relevant events until the criminal proceedings against the plaintiff had been concluded: at 208. 69There is a degree of tension in the reasoning between the willingness to accept the point of statutory construction, namely that the authority of the Commission went so far as to permit it to compel answers from the plaintiff while standing charged with the offence, and the holding that the exercise of the power would constitute a contempt of court. The same tension has arisen in other cases where the power of a statutory authority to compel incriminating answers to questions has been reassessed within the relevant statutory context. There was no challenge to the constitutional validity of a law which might have authorised that which would otherwise be a contempt of court, possibly because both the statutory scheme for investigation and the offences laid against the appellants arose under State and not Commonwealth law. 70There are three significant points of distinction between the present case and the circumstances in Hammond. First, neither the two interviews with Mr Jason Lee nor that with Mr Seong Won Lee were directed to the subject matter of the charges already laid. Secondly, Hammond was concerned with intervention to prevent interference with the administration of criminal justice, rather than the consequences of the interfering conduct, once it had occurred. Thirdly, the statutory regimes differed in significant respects. 71The first point of distinction is significant; the fact that Mr Hammond was to be questioned directly about his conduct which was already the subject of a criminal charge (though the questioning may have had a broader purpose - not explored - than determining his guilt) was central to the Court's reasoning. 72The second point of distinction should not be overstated. Although the relief sought in this case depends upon an additional consideration, the assessment of whether, viewed retrospectively, there has been a miscarriage of justice depends on the nature and extent of any impropriety in the pre-trial investigative process. 73The third point of distinction requires an assessment of the investigative scheme under the NSW Crime Commission Act, to which it will be necessary to return. 74Hammond was quickly followed in the High Court by Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281. Since Hammond, the Royal Commissions Act had been amended to include s 6A(2) which expressly provided that a person was not entitled to refuse or fail to answer a question on the ground of tendency to incriminate. The effect of that section, and its constitutional validity, were in issue, the latter picking up the doubts expressed by Deane J in Hammond as to the constitutionality of such a provision. (Deane J did not sit in Sorby.) The Court unanimously held that s 6A was effective according to its terms and was a valid law of the Commonwealth Parliament. Gibbs CJ stated that the privilege against self-incrimination was not protected by the Constitution - at 298 - and concluded at 299: "There is no reason to doubt the validity of the application of such provisions to courts exercising federal judicial power. Similarly, it is no necessary impairment of federal judicial power that a person who may subsequently come to be tried has been compulsorily interrogated before the trial. Hammond ... is distinguishable. That was a case in which the plaintiff, who was called to give evidence before a Royal Commission, was awaiting trial for a criminal offence, and there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with." 75In the joint reasons of Mason, Wilson and Dawson JJ, emphasis was also placed on the fact that there had been a "pending criminal charge" in Hammond. The submissions before the Court necessarily involved a further step. Their Honours stated at 306: "However, the next step in the plaintiffs' argument is to say that s 6A effects an impermissible interference with the administration of justice because a witness under examination at the Commission who, unlike the witness in Hammond, has not been charged can be compelled by the Commissioner to answer questions relating to an offence in respect of which a decision has already been made to charge him." 76The plaintiffs' arguments as to the invalidity of s 6A were rejected, on the basis that there was no constitutional protection for the privilege against self-incrimination. Further, the joint reasons concluded that "the possibility, or even the strong probability, that a witness called to testify before a Royal Commission will be charged with an offence provides an unlikely basis for a finding of contempt against the Commission in the event that the witness is questioned about matters which are relevant to the offence": at 307. Importantly, s 6A(3) provided that the withdrawal of the privilege did not apply "where the offence in respect of which the production of a document ... or the answer to a question might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of". The joint reasons nevertheless concluded that s 6A(3) "would not preclude a court from restraining the Commissioner from examining a witness as to his [c]ommission of an offence if in the particular circumstances of the case that examination amounts to a contempt": at 307-308. 77In Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 ("ACC v OK") an issue arose as to the proper construction of provisions of the ACC Act which bear close analogy with provisions in the NSW Crime Commission Act. As the majority, Emmett and Jacobson JJ, explained, the appeal was "concerned with the question of whether an examiner of the Australian Crime Commission ... may ask, of a person summoned to appear before the examiner, questions that relate directly to matters that are the subject of criminal charges laid against that person in a State criminal court": at [65]. Having noted the principles established in Hammond, the joint reasons stated at [107]: "Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge. On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and (9) have been put in place. Such principle as might relevantly be drawn from Hammond's Case is displaced by the express provisions of the Commission Act." 78Section 25A of the ACC Act was the comparable provision to s 13 of the NSW Crime Commission Act. Section 25A(3) was the equivalent of s 13(5), which required that a hearing be held in private. Section 25A(9) was the equivalent provision to s 13(9) and involved a similar obligation to give a non-publication order where the failure to do so might prejudice a fair trial. Emmett and Jacobson JJ held that various powers of dissemination contained within the ACC Act were to be read subject to the "protective prohibition in s 25A(9)": [108]. Their Honours continued at [109]: "The objects of the Commission Act could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid. The public interest requires the investigation of a federally relevant criminal activity to continue. The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured. The public interest in the administration of justice, in particular to the right to a fair trial, is preserved by the statutory safeguards referred to in [the preceding paragraph - [108?]]. In this way the legislation achieves a balance between the public interest in the investigation of federally related criminal activity and the public interest in the right of an accused person to a fair trial." 79For reasons already noted, there may be some doubt as to whether it is correct to identify the power and obligation to make non-publication orders (in s 13(9) of the NSW Crime Commission Act) as limiting all forms of dissemination of information acquired by the Commission as described in paragraphs (a)-(d) of that sub-section. Further, the statute does not in terms provide such protection: it empowers and, in some circumstances, obliges the Commission to make an appropriate order. Even where the obligation is engaged, it is arguable that the terms of the order will be within the discretion of the Commission. As a matter of principle it therefore follows that there could be a potential or actual interference with the administration of a criminal trial by the exercise (or failure to exercise) the powers of the Commission. 80Significantly, what happened in the present case, according to the appellants' submissions, was the materialisation of the risk of inappropriate disclosure which was dismissed as "no real risk" and "no practical reality" in ACC v OK at [113]. In any event, that authority (and the authorities in this Court which have followed it) do not address the present problem which involves, not an order restraining the conduct of an inquiry, but the consequences of the release of a transcript of a completed interview. 81Following ACC v OK, a question arose in this Court as to whether two persons against whom charges had been laid under Commonwealth law were entitled to a permanent stay on the basis that, after the charges had been laid, each was the subject of examination before the Australian Crime Commission. The trial judge (Murrell DCJ) granted a permanent stay in respect of one accused, but not the other. In the first matter the Director of Public Prosecutions (Cth) appealed and, in a second proceeding heard with the first, the other accused appealed against the refusal of a permanent stay in respect of his matter. This Court upheld the Director's appeal and dismissed the appeal by the other offender: R v CB; MP v R [2011] NSWCCA 264 (McClellan CJ at CL, Buddin and Johnson JJ agreeing). After comparing the approach adopted in Nutricia with that of the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 447, McClellan CJ at CL held at [100]: "With respect to the ACC Act where an accused the subject of an extant charge is summonsed to appear at an examination under s 28 of the ACC Act but is protected against direct use of any answers given over an objection based on the privilege against self-incrimination by reason of section 30(4) and protected from derivative use by reasons of confidentiality directions given pursuant to section 25A(9) and section 29 of the ACC Act, there is no possible compromise of the accusatory system of criminal justice. The onus of proof still lies on the prosecution. The accused cannot be made to testify in or in connection with the trial to the commission of the offence charged. The accused's rights and privileges at the trial are preserved." 82McClellan CJ at CL dismissed the view of the primary judge that "reposing the product of a collateral executive examination of an accused person upon matters of which he or she is accused in the discretion of a prosecuting or investigating officer fatally weakens the operation of criminal courts in accordance with the rule of law": at [103]. His Honour concluded that the reasoning of Emmett and Jacobson JJ in ACC v OK was correct: at [106], [110] and [117]. 83The appellants in the present case relied in particular on the reasoning in R v CB at [110]-[111], which was in the following terms: "[110] Accordingly, in my opinion the conclusion of Emmett and Jacobson JJ in Australian Crime Commission v OK to the effect that a confidentiality direction made [under] sections 25A(9) and 29A of the ACC Act overrode the obligations and powers of disclosure of the CEO and the Board of the ACC in section[s] 12(1) and 59(7) of the ACC Act is correct. In the result, those directions having been made in relation to the examination of CB, he was effectively immunised from any direct or derivative use of the contents of his examination in his pending criminal trial. [111] Provided the knowledge of the proceedings in the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution." 84The appellants noted that this protection had not been accorded to them, their interviews having been disseminated to the prosecutor in their criminal trial. The very danger which the trial judge had anticipated in R v CB having eventuated, it followed, they submitted, that their rights to a fair trial had been compromised. 85The reasoning in CB does not govern the present case. Even if CB were wrong, the appellants would not necessarily succeed in the present case. The two critical features in CB which where present in Hammond, but absent from the present case, were that: (a) the appellants had been charged with criminal offences prior to their hearing before the ACC, and (b) they were to be examined (or had been examined) in respect of the subject matter of those charges. 86In the present case, Mr Jason Lee had extant charges at the time of his examination, but they were irrelevant to the subject matter of the examination and were not the subject of the subsequent criminal trial; Mr Seong Won Lee's charges had been laid prior to his examination, but, as will be seen below, the examination was not directly related to those charges. Finally, CB did not, of course, address the further question as to what relief should be granted in circumstances where there had been an improper disclosure and the trial had proceeded to conviction.

[18]

(g) factual background 87In order to address the legal arguments raised by the appellants, it is necessary to set out a chronology of the steps taken in relation to the charges and the process in the Commission. 88On 25 February 2009, Mr Jason Lee was arrested and charged with two offences of knowingly dealing with the proceeds of crime, one offence of unlawful possession of property, involving suspected stolen goods in a motor vehicle (being a diamond) and three minor drug possession offences. That arrest and the consequent charges pre-dated the reference to the Commission, which was issued on 24 August 2009. 89During 2009 investigations had been underway in relation to the importation of a number of consignments of washing powder from Korea, by a company associated with Mr Brendon Pak. On 22 October 2009 Customs officers searched premises at Mascot occupied by the Lee family, using portable drug analysis equipment. (The results of the analyses were negative.) 90On 20 November 2009, the Commission issued a summons requiring Mr Jason Lee to attend a hearing on 26 November 2009. There was no issue raised at that hearing concerning the then outstanding charges. In the course of the examination, Mr Lee was orally ordered to produce certain documents to the Commission. The hearing was adjourned to 1 December 2009. 91At the resumed hearing, Mr Jason Lee gave further evidence and, through his solicitor, produced documents in response to the direction given on 26 November. 92In the course of his interview on 26 November 2009, Mr Jason Lee said that his current address was an apartment in Waterloo. On 7 December 2009, police carried out a search at that address pursuant to a warrant. As mentioned above, in the course of the search, police located a submachine gun, with a silencer, two magazines and a brass catcher in the laundry of the premises. They also seized a quantity of a white powder in boxes labelled washing powder. Mr Seong Won Lee was in the apartment at the time and was arrested. He was charged with offences relating to the gun and associated equipment found in the laundry, but not with any drug offences. 93The apartment contained two bedrooms, one of which was locked. In the locked bedroom the search revealed a revolver, a quantity of white powder, a large amount of cash and a number of papers which, subject to minor markings, included copies of those produced to the Commission on 1 December 2009. In addition there were a number of court documents in the room in the name of Mr Jason Lee and pages entitled "How to Cook Meth". 94The documents produced to the Commission included a bundle of receipts which appeared to relate to overseas cash transfers and which could have corroborated evidence he had given in the course of his interviews as to the source of his wealth. 95Seven signatories of the documents were located by police or Commission officers and statements obtained bearing dates between 29 July 2010 and 6 September 2010. Three were typed on Commission forms and were taken at the Commission; the other four were on NSW Police forms and stated that they were taken at the Commission's Sydney offices. Each of the statements on police forms commenced with the following paragraph: "I am making this statement after a promise held out to me by Tim O'Connor, Assistant Director New South Wales Crime Commission that no information given in it will be used in any criminal proceedings against me in any court in New South Wales, except in respect of the falsity of my statement or for purposes of establishing the falsity of evidence given by me as a witness." 96Each statement indicated the role of the maker in either completing or obtaining forms recording remittance transfers of specified sums of money. Each deponent who had signed such a form declared that the documents were false and that he had not provided funds to Mr Jason Lee. Copies of the forms were annexed to the statements. 97On the appeal, the Director read an affidavit of Mr O'Connor dated 1 November 2012, which attached a bundle of documents produced to the Commission by Mr Jason Lee and identified by him as "reverse money transfer remittances". Mr O'Connor also attached a set of documents seized during the search of Lachlan Street, Waterloo. He then proceeded to identify minor differences between the documents attached to the statements and the produced documents (bundle 1) and the seized documents (bundle 2). Counsel for Mr Lee handed up a four page sheet which referred to each document and identified minor distinguishing features which allowed, in some cases, the documents produced and those seized to be distinguished. The point of the exercise was to establish that in many cases the documents shown to the witnesses were the documents produced by Mr Jason Lee under compulsion. 98As all the statements were prepared either at the Commission or at the instigation of the Assistant Director, Mr O'Connor, it may be inferred that the documents annexed to the statements were indeed those produced to the Commission under compulsion. The officer in charge of the police investigation gave evidence that none of the statements, including those recorded on Police Service forms, were taken by police officers or in their presence: affidavit, 2 November 2012, par 8. He was not challenged on that issue, nor was his evidence in this Court treated as confidential. 99On 14 December 2009 Mr Jason Lee was charged with three offences relating to items discovered during the search, namely: (a) possess an unauthorised prohibited firearm; (b) having on premises goods reasonably suspected of being unlawfully obtained (namely $1.147 million), and (c) possess ammunition without licence. 100On 16 December 2009 Mr Seong Won Lee was interviewed by the Crime Commission. In the course of the interview, Mr Lee was questioned briefly about his personal history, whether he obtained a salary working for his father's company and work done on particular properties. However, most of the interview concerned assistance he had given to Mr Brendon Pak, whom he knew as a friend of his father. He agreed that he had on a number of occasions helped Mr Pak unload boxes of washing powder imported by Mr Pak. He said that he had taken a few boxes of washing powder himself. 101At the Waterloo apartment, police took possession of approximately 45kg of washing powder. Initial tests for prohibited drugs proved negative. Indeed, it was not until some five months later, in May 2010, that further tests were undertaken which proved positive, demonstrating that the washing powder contained approximately 14% pseudoephedrine. 102On 4 May 2010 the Commissioner's approval was sought to release hearing transcripts with respect to the appellants and Mr Pak "so that the police can review them for the Swansea brief". That approval was granted. 103On 13 May 2010 Mr Jason Lee was charged with supply of prohibited drugs; one charge related to the powder found in the laundry and the other related to the powder found in the bedroom. On 17 May 2010 Mr Seong Won Lee was charged with supply prohibited drugs, but only in respect of the powder found in the laundry. 104On about 4 June 2010 the solicitors for the appellants issued a subpoena addressed to the Commission seeking, amongst other things, access to the transcript of the examination of Mr Jason Lee, and the transcripts of examinations of his wife, Jun Jin Ei, and a person who appears to have been Mr Seong Won Lee's partner, Jimmi Lee (also referred to as Jimmi Ei). 105On 11 June 2010 an officer with the Commission responded enquiring as to the forensic purpose for access to the examination transcripts of Jun Jin Ei and Jimmi Lee and telephone intercept material involving Mr Pak. The letter further stated: "In respect of the 'transcripts and/or tape recordings of examination hearings pursuant to Summons of Do Young LEE', these documents are the subject of a non-publication order issued by the Commissioner pursuant to s 13(9) of the New South Wales Crime Commission Act 1985. A certificate under s 13(10) of the Act would be required to permit the Commission to produce these documents to the Court. At this stage, I am unable to comment on the Commission's position in relation to an application for such a certificate for these items." 106On 1 July 2010, after both appellants had been charged in relation to all relevant offences, an officer with the Director, Ms Garrity, sent an email to Detective Plummer, who was on secondment to the Commission working on the reference involving the appellants and was responsible for preparing the evidence for the prosecution case. After inquiring about a number of matters of no present relevance the email continued: "Lastly, two more things: I understand that Seong & his mother both gave evidence at the CC? What about Jason/Do Young? If it is possible - I would like to see those transcripts - especially if it is something defence are going to try & rely on - specifically that they had no knowledge that the washing powder was actually drugs." 107The following day, an officer within the Commission sent an email to Mr O'Connor, without forwarding the exchange between Mr Plummer and Ms Garrity, but rather stating in her own language: "Brendan Plummer has emailed me to advise the DPP dealing with the LEE matter have asked for copies of the hearing transcripts. They want to view them on the basis they need to know whether there is content in them which the defence may rely on - ie: knowledge of Seong LEE and Jin Ei JUN about the washing powder imports. Do you or Jarrod have any objections to providing them with copies of all of the hearings?" 108Mr O'Connor indicated that he had no objection but forwarded the email to the Commissioner to "approve the dissemination to the DPP". An email from the Commissioner of the same date succinctly stated, "Approved". 109The police investigation did not reveal that Mr Jason Lee was in fact living in, or using, the locked bedroom in the apartment at the time of the search. To rebut any inference that a third person was using the bedroom, they had obtained and tested DNA samples from toothbrushes and a cigarette butt. Having ascertained that the samples did not match either of the appellants, they sought to match the samples to a known third person associated with the appellants. The most likely person was Mr Jason Lee's wife. Investigating officers with the Commission used the interview transcripts of Jason Lee to obtain court authority for a DNA sample to be taken from Mr Lee's wife. Because there is no derivative use immunity resulting from the objection taken at the compulsory examination, the statute allowed the Commission to make such material available to officers of the New South Wales Police, for the purposes of further investigation. The further dissemination of the material (to the magistrate from whom the warrant was sought) was approved. 110In a letter dated 6 July 2010, the appellants' solicitors indicated that the partners of both appellants, namely Jun Ji Ei and Jimmi Lee, may have given evidence that they used the washing powder (claimed to contain a prohibited drug) for washing. On 8 July 2010, redacted transcripts were provided, which became the subject of an application for further disclosure before Judge Solomon. The solicitors for the appellants were well aware that their clients, and those identified in the subpoena, had been the subject of compulsory examination before the Commission. The solicitors also advised that an application would be made under s 13(10) for a direction that Mr Jason Lee's examination transcript be released pursuant to s 13(11). There can be no doubt that, in July 2010, the solicitors were fully conversant with the requirements of the NSW Crime Commission Act and the obligations of the Commission with regard to release of material subject to a non-publication order under s 13(9). 111The appellants waived their right to a committal hearing and the matter came promptly before the District Court. The first pre-trial hearing of which there was evidence in this Court occurred before Solomon DCJ on 1 October 2010. The trial was fixed for 24 January 2011. Thereafter, the matter came before the Court on five days in November, twice before the Chief Judge, once before Morgan DCJ and on two further occasions before Solomon DCJ. These were not the only occasions on which it was before the Court. At some stage in October or early November, the trial date had been brought forward from February 2011 to November 2010: Tcpt, 15/11/10, p 2(20). The prosecution had then sought to vacate the trial date. The application to vacate the trial date of 15 November had been refused on 29 October 2010: Tcpt 17/11/10, pp 14-15. Mr Sutherland SC, who then appeared and continued to appear throughout the trial for Mr Jason Lee, complained that (Tcpt, 15/11/10, p 2(35)): "The response of the Crime Commission ... to the trial date being confirmed two weeks ago has been to deluge the defence directly, not via the Crown but from the police, direct to the solicitors with an enormous volume of material, and I think we've received in excess of 1000 pages in six or seven volumes in the latter half of last week." 112He continued (Tcpt, p 3(30)): "We understand people are being called in to the Crime Commission and compelled or interviewed under compulsion there last week. Just where it all goes I'm not quite sure." 113The Chief Judge stood the matter over for two days until 17 November 2010. On that date it came before Judge Morgan, at which stage a voir dire was foreshadowed, apparently in relation to tendency and coincidence notices which had been served by the prosecution and with respect to a subpoena issued to the Commissioner of Police and the Crime Commission. Mr Sutherland stated that the notices had been served the previous evening and, whilst he did not wish to stop the trial, he referred again to "an important aspect [of] what has happened in the last week which is a veritable avalanche of material deposited, and I deliberately don't say served, because much of the material, no doubt for exigency and expediency reasons has been delivered from police officers attached to the State Crime Commission direct to the defence solicitors without even having gone via the DPP": Tcpt, 17/11/10, pp 6-7. 114Having voiced grave concerns about the difficulty in facing a trial at that stage Mr Sutherland nonetheless persevered in accordance with his instructions. Mr Sutherland posited two disputes for resolution: one regarding a subpoena issued to the Crime Commission and the other regarding a subpoena issued to the NSW Police. However, neither issue was resolved on that occasion. 115The matter came back before the Chief Judge on Thursday, 18 November 2010 and was adjourned to the following Monday, before Judge Solomon. At that stage, the primary dispute was the propriety of the prosecution's proposed reliance on tendency and coincidence evidence. The first area of evidence involved washing powder imported by Mr Pak on 25 prior occasions, it being alleged that many included pseudoephedrine, which was retrieved by Mr Seong Won Lee. The second area of evidence concerned the accumulation of wealth by the Lee family, despite their apparently humble circumstances. Mr Sutherland noted that "what we have received is something in the order of three and a half thousand pages of material, much of which has been in the possession of the Crime Commission for eons": Tcpt, 22/11/10, p 12(8). The matter was stood over to the following day, with the prosecutor considering overnight the possibility of not proceeding with the tendency and coincidence evidence. On the following morning, he indicated his intention to abandon reliance on that material: Tcpt, 23/11/10, p 1(30). 116During the critical pre-trial hearing on 23 November 2010, Judge Solomon asked the prosecutor whether proposed evidence relating to the funding of a company under the control of Mr Jason Lee was relevant to the drug supply charges: Tcpt, p 2(4). The prosecutor responded in the following terms: "CROWN PROSECUTOR: ... [B]oth of the accused were examined at the Crime Commission, and whilst that evidence isn't admissible in these proceedings I suppose it gives us a bit of an idea where they might be heading ... Well we are not in a position to lead that evidence. All I'm saying, your Honour, is that because they were given the usual rider at the commencement of their evidence when objection's taken that it can't be used against them. But there's things said there to the Commission, which, as I say, give the Crown at least a possible scenario for where the defence might suggest that there's some innocent explanation about, not only the money in the unit, but they don't know anything about drugs. ... ... [W]e have to present our case in a way that we believe will rebut any innocent explanation about both the money found in the unit, but also the drugs...": Tcpt, 23/11./.10, pp 2(28)-3(20). 117The prosecutor's reference to the Commission interviews indicated that he had read the material and had decided to call particular evidence, being, it may be inferred, evidence from the signatories denying the authenticity of the money transfers. That evidence would have been relevant and admissible, at least to the 'proceeds of crime' charge. The discussion arose because the trial judge, being on notice of the kind of evidence sought to be called, expressed concern as to its potential prejudicial effect in relation to the drug charges. The judge dealt with that matter by severing the proceeds of crime charge and requiring that it be heard separately, although he ruled that evidence of the location of the money in the bedroom, discovered on the execution of the search warrant, could be called by the prosecutor at the trial on the drugs charges. 118Evidence tendered in this Court established that, for the period of the investigation which led to the charging of the appellants, both officers in charge of the investigation had been appointed as members of the staff of the Commission, pursuant to s 32 of the NSW Crime Commission Act. In late October 2010, one of those officers, Detective Senior Constable Plummer, provided to the appellants' solicitors a large volume of material constituting approximately 3,500 pages, described as "including analytical chemistry reports, accounting reports, material relating to an investigation in Korea and the NSWCC transcripts of both Jason Lee and Seong Lee and further witness statements": affidavit, D Miralis, 17 October 2012, par 50. Mr Miralis (the solicitor for Mr Jason Lee) described the witness statements as alleging that "false records had been created to give the impression that money had been transferred from Korea": par 51.

[19]

(i) unauthorised exercise of delegated power 119First, it was alleged that dissemination by the Commissioner involved the exercise of a delegated power, a condition of which required the Commissioner to report back to the Management Committee on the exercise of the power from time to time. The evidence of Management Committee meetings did not disclose any reporting back, from which it should be inferred, the appellants contended, that the condition had not been complied with. The result, the submission proceeded, was retrospectively to invalidate the dissemination. 120If it were necessary to evaluate this submission, it would be necessary to make two findings: first, that the delegation to the Commissioner was conditioned in the way suggested and, secondly, that the Commissioner did not report back to the Management Committee on the dissemination of the particular material involving the appellants to the DPP. If those matters were established, it would then be necessary to address what was meant by "invalidity" in this context and when that legal status arose. 121The appellants also asserted invalidity on a second basis, namely that once charges had been laid the Commission had no power to investigate the subject-matter of the charges further. That conclusion followed from the requirement that the Management Committee not refer a matter to the Commission for investigation unless satisfied that "ordinary police methods of investigation ... are unlikely to be effective": s 25(2). That was said to give rise to an implied constraint on the scope of an investigation, preventing it proceeding beyond the point at which a charge had been laid, at which stage any further investigation was within the scope of "ordinary police methods". 122There are a number of difficulties with this submission. The first is that a limitation on the power of referral does not readily translate into an implied limit on the powers of those to whom a referral is made. Secondly, the limit is on referral for investigation, whereas the invalidity is said to arise not in continuing to investigate, but in conveying to the DPP the fruits of the investigation which, at least in relation to the interviews of Jason Lee, had occurred before the relevant charges were laid. Furthermore, there was an assumption that "ordinary police methods" would always be effective once a charge had been laid, presumably in relation to the subject matter of the charge. 123Neither of these challenges need be explored further, because the Director conceded that he had been unlawfully supplied with the transcripts of the interviews. Once that concession is accepted, it is not necessary to review other bases upon which it is alleged that the documents came into the hands of the DPP unlawfully.

[20]

(ii) failure to approve 'publication' 124The concession involved two legal premises and a factual finding. The first legal premise was that the provision of the transcripts of the interviews involved dissemination of intelligence and information to a body the Commission considered appropriate, pursuant to s 7(a). The second legal premise was that the dissemination of such material to the Director was subject to the non-publication order made pursuant to s 13(9). That the Commission had made a non-publication order at the interview with Mr Jason Lee was not in dispute. No equivalent order was recorded in the transcript of the hearing with Mr Seong Won Lee, but the Director accepted that the Commission was obliged to make such an order in circumstances where the appellants were to be tried together and the indictment, at the date of the release of the materials, included both a money laundering charge and drug charges. Thus, it was accepted that the provision of his interview to the DPP occurred in breach of a non-publication obligation binding the Commission. The factual element in the concession was an inference that the Commissioner, in deciding to disseminate the material to the Director, had failed to realise that to do so might prejudice the trial of the appellants. 125A consequence of the concession was that inadequate consideration was given to the proper construction of s 13(9), and its relationship to dissemination of intelligence and information to a prosecuting authority pursuant to s 7(a). Further, the Director did not address a submission that the powers of the Commission under s 7 were to be read with the allocation of functions under s 6. Thus the functions of the Commission included assembling admissible evidence and providing it to the Director: s 6(1)(b) and (2)(b). Given the prosecutorial function of the Director and the need in a criminal trial for the prosecution to rely only upon admissible evidence, the appellants argued that there was an implied limitation on the Commission's power to disseminate to the DPP material such as the transcripts of compulsory interviews, which were known to be inadmissible against the deponents. That argument did not require support from s 13(9). 126As has been noted, the powers of the Commission permitted it to disseminate information to such persons or bodies as it thought appropriate and to do all things necessary to be done for or in connection with, or which were reasonably incidental to, the exercise of its functions: ss 7 and 8. Further, s 8 stated that the conferral of specific powers was not to be taken as impliedly limiting the generality of s 8 itself. 127While a principal function of the Commission was to assemble admissible evidence, that function should not be read narrowly. First, it should be understood as the assembly of material intended to be used in a criminal prosecution, not as requiring the Commission to make some preliminary ruling on admissibility. The statements from the signatories of the documents provide an example of why that approach should be adopted. There may have been circumstances in which the statements would become admissible, but their real function was to identify evidence which could be given by the deponents if called as witnesses at a trial. The obligation to furnish certain material to the Director, when stated as a function of the Commission, should not be read as a limitation on the power to take such a step. 128Before leaving that issue, it should be noted that s 15A of the Director of Public Prosecutions Act 1986 (NSW), as in force in October 2010, provided in part: "15A Disclosures by investigating police officers (1) Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. ... (5) The duty imposed by this section is in addition to any other duties of police officers in connection with the investigation and prosecution of offences." 129That provision has been subsequently amended, so as to qualify the duty in respect of documents the subject of immunity from disclosure. The operation of s 15A, as in force at the time of the disclosures in the present case, was not the subject of submissions. It was not relied upon by the Crown Advocate in support of any submission as to the unfairness or otherwise of the dissemination to the Director. 130There was a further unexplored question as to the internal operation of s 13(9) discussed at [52] above. Putting those questions to one side, it is necessary to inquire as to the consequence of the concession that the interviews were supplied, at least in relation to Mr Jason Lee, in breach of an actual non-publication order, and in both cases for an improper purpose.

[21]

(iii) Jason Lee's case 131The examinations of Mr Jason Lee occurred before he was charged with any of the offences the subject of the present proceedings. Thus, although information supplied by him in the interviews was used to obtain statements from witnesses to disprove a possible defence of innocent possession of moneys, the circumstances of the interviews themselves did not offend the principles established in Hammond and Nutricia. Rather, reliance was placed upon the subsequent release of the interviews, without proper authorisation from the Commissioner and in breach of the "undertaking" given to Mr Lee at his examination. 132At the commencement of the first interview with Mr Jason Lee, on 26 November 2009, the Commissioner made the following statement (Tcpt, p 3): "The other thing you should be aware of is that you could be prosecuted if you disclose what goes on at this Hearing today. I direct that any evidence given by this witness or tendered or produced in the presence of this witness or any information that might enable this witness to be identified as a person who had given evidence before the Commission, shall not be published except in such manner and to such persons as the Commission specifies. Do you understand all of that?" 133To the final question, Mr Lee answered "Yes". Although the introductory remark was directed to Mr Lee himself, it was accepted for the purposes of the appeal that the statement by the Commissioner constituted a direction for the purposes of s 13(9) of the NSW Crime Commission Act. It was also assumed that, despite the reference to the hearing "today", and the fact that the direction was not repeated on the second hearing day (1 December 2009) the direction also applied to what occurred on the latter date. That meant that the reference to evidence "tendered or produced in the presence of this witness" included the documents produced by his solicitor on the second day. 134No objection was taken to the conduct of the examinations nor to the request to produce documents. The unfairness of the trial and hence the miscarriage of justice upon which the appellant Jason Lee relied arose from the disclosure of the transcripts of the interviews and the release of the compelled documents (annexed to statements from the signatories) to the prosecutor. 135The first act of dissemination was the act of showing a produced document to the signatories. It was not submitted that such a course could not properly have been taken by the Commission, or Commission staff, nor that the documents could not have been properly disseminated to police officers unconnected to the Commission for them to carry out appropriate investigations. 136It was also open to the Commission, or police unassociated with the Commission, to carry out precisely the same investigations and inquiries using the documents obtained during the search of the Waterloo premises, those documents being in relevant respects identical to the copies supplied under compulsion to the Commission. (One additional document, not produced by Mr Lee, was discovered on the search.) 137If Mr Lee objected to production, the documents produced under compulsion were not admissible at a trial on a criminal charge to which they were relevant: Crime Commission Act, s 18B. However, the copies obtained on searching the Waterloo apartment were. Evidence given by those who signed the documents would have been admissible. In some circumstances, the statements they prepared as to the evidence they would give might also have been admissible. If that material could properly have been made available to the prosecutor, it would be curious if the prosecutor could not be told of the investigation which led to the Commission obtaining the statements based on the produced documents. Because the charge to which the material would have been most relevant has been severed, it is not necessary to address that issue further. 138The discussion during the pre-trial hearing referred to at [116] above revealed to Mr Sutherland SC (appearing for Mr Jason Lee) that the prosecutor had obtained evidence from the Crime Commission. Indeed, although he appears not to have realised their significance, a full copy of the prosecutor's brief including the impugned documents, had been provided to his instructing solicitor, Mr Miralis, who stated that this had occurred at "the end of October 2010": affidavit, 17 October 2012. Thus service was approximately four weeks before the pre-trial hearing at which the fact that the prosecutor had the material was first expressly revealed, although it must have been unlikely that the police would serve material on the defendants which had not been made available to the prosecutor. 139Mr Sutherland filed an affidavit on the appeal explaining his understanding of the situation at the relevant times. There is no suggestion that any step he took or did not take caused a miscarriage of justice, nor is his competence impugned. Although the Crown Advocate did not object to the affidavit, statements as to counsel's beliefs are of doubtful relevance. The contemporaneous transcript is sufficient evidence as to the matters set out above. 140It may be accepted that no person in the appellant's camp knew of the absence of the necessary direction permitting the release of the documents to the prosecutor (and indeed to them). However, a solicitor appearing for the Commissioner of Police and the Commission indicated the Commission's agreement that the Court could properly make orders under ss 13(10) and (11), at least in respect of material which had not then been disclosed. 141The Court having ordered that the charge in relation to the money being proceeds of crime would be severed and dealt with after the charges relating to the guns and drugs, the focus of debate turned to the issue of the money found in the locked bedroom in the apartment in Waterloo, which the prosecutor proposed to tender as one of the "indicia of drug supply": Tcpt, 23/11/2010, p 10(5). Solomon DCJ ruled that the evidence would be admitted on that basis. 142The Court then turned to consider material subpoenaed from the Crime Commission, including an interview with the girlfriend of Mr Seong Won Lee: Tcpt, p 15(35). For a significant period, the judge and counsel were at cross-purposes, but it is tolerably clear that whilst Mr Sutherland was amenable to orders being made for disclosure of documents he had sought, he was also expressing concern that the two examination transcripts in respect of his client had been disclosed to the prosecutor: Tcpt, p 21(33)-(43). In part, his concern was that the further certificate sought under s 13(11) was designed to legitimise that which had already happened: p 23(40). The following exchange then took place: "HIS HONOUR: Right. I hear what you say. I'm going to ask the Crown. CROWN PROSECUTOR: Yes, your Honour. I have the material, as do the defence. ... HIS HONOUR: Right, so you've got it. CROWN PROSECUTOR: Yes, the defence - this is part of the brief. It was served as part of the brief - pardon me a moment, I'll give you a date - it was served on 28 October. SUTHERLAND: Your Honour, this may need to be stood down so we can have a look at it properly, rather than dealing with it completely on the run. HIS HONOUR: Yes. SUTHERLAND: My understanding, imperfect though it is, is that the material was provided to those who instruct me for other purposes, and in accordance with the statute, and in relation to criminal assets confiscations, and the like. I have no understanding, which is why I was quick to my feet this morning, that it constitutes part of the material provided to a Crown Prosecutor in advance of a charge such as the charges here, so that the Crown, in effect, start pre-empting what may or may not be the defence run at the criminal trial, on the basis of an understanding of evidence given in secret and not meant to be disclosed. Now I don't know what the ramifications of all that may be, if anything, but I must say it was because of my concern that I was quickly to my feet this morning." 143The trial judge, apprised of the issue, suggested that it might be resolved by including in the direction under s 13(11), the transcripts and records of the evidence given to the Commission by Mr Jason Lee: Tcpt, p 25(40)-(49). Mr Sutherland noted, however, that the purpose of a direction was to make material available to the person charged, and not to the prosecution. He stated (Tcpt, p 26(15)-(19)): "There is no suggestion at all in subs (11) in terms that were originally in the certificate. Just where we go from there I'm not sure but I'll think about it." 144Shortly thereafter, the crown prosecutor made a further statement as to the information available to him (Tcpt, p 27(20)-(34)): "I should mention this now, that for better or worse on 28 October both of the accused were served via their legal representative which is the one solicitor, not only the transcripts your Honour has just been referring to, issuing certificates over at least in relation to Do Young Lee but also transcripts from one hearing involving the co-accused Seong Lee at the Crime Commission on 16 December. I have a document that was put together by one of the police in charge of the matter in terms of the chronology of when things were served but since I understand has been provided to the defence. It's an annexure to that chronology which indicates that a large portion of the brief is referred to as Part 2 of the brief. It was served on 28 October and within that were transcripts of the two hearings your Honour has heard about for Do Young Lee, three hearings involving the witness Brendon [Pak] and one hearing on 16 December for Seong Lee. Now whether that needs to be resolved by some sort of certificate to approve what has happened." 145There were further pre-trial hearings attended by Mr Sutherland on 17 January and 20 January 2011. Pleas were taken on 24 January on which day the jury was empanelled. Nothing further was said about the disclosure of information to the prosecutor from 23 November 2010, until the notice of appeal was given on 18 April 2012, some four months after the appellants had been sentenced. 146Because no question arose as to the admission or rejection of evidence, or any direction or omission to direct the jury, r 4 of the Criminal Appeal Rules (NSW) had no application in the present circumstances. Nevertheless, the omission of senior counsel for the appellant to raise a question as to the unfairness which might result from a set of circumstances, once they were known, is relevant to the assessment by this Court of the ground of appeal. The complaint is not that the Commissioner failed to approve the release of the material to the prosecutor, but that such release would not in any event have been for a proper purpose. As already explained, it was no part of the appellants' case that the content of the documents released in fact precluded a forensic strategy available to the defence. The documents evidencing "reverse money transfers" were found in the Waterloo apartment and were in any event available to be tendered. The evidence of the signatories, had it been necessary to call them, could and almost certainly would have been given by reference to those documents. Their statements were properly included in the prosecution brief and thus properly disclosed to the appellants. 147The transcripts of the interviews, would have revealed a possible defence to an inference that the money found in the locked bedroom constituted the proceeds of drug dealing, as the prosecutor correctly noted before Solomon DCJ. However, that possibility could also have been inferred from the copies of the documents seized in the same room, which were relevantly identical to those produced to the Commission. The contents of the interviews, though not admissible in evidence, may have assisted the prosecutor to understand the nature and intended purpose of the documents, which would, presumably, have been tendered by the defence. It is difficult to articulate any practical unfairness deriving from the disclosure of the transcripts to the prosecutor. Nothing in them was relevant to the trial as it in fact ran. 148The appellant further submitted that, the documents having been supplied to his lawyers by police, there had been a prior release to the police as well as the prosecutor. However, according to Mr Miralis' affidavit, the documents were provided to him by Detective Brendan Plummer. As already noted, Mr Plummer was, at the relevant time, a police officer engaged by the Commission to perform services for it, pursuant to s 32(5) of the NSW Crime Commission Act. There was no evidence to suggest that he did not obtain the documents in that capacity. 149In these circumstances, Mr Jason Lee has not demonstrated that the release to the prosecutor of the transcripts of his two interviews with the Commission, or the documents produced by his solicitor to the Commission under compulsion, gave rise to any practical unfairness.

[22]

(iv) Seong Won Lee's case 150The written submissions for Mr Seong Won Lee filed on 18 April 2012 with respect to ground 1 sought the quashing of count 7, (being knowingly involved in the supply of pseudoephedrine found in the laundry). The following potential issues arose in respect of that submission: (1) Was there any impropriety in questioning the appellant under compulsion about matters - (a) relating to charges which had been laid , or (b) which were expected at the time of interview to be the subject of further charges? (2) Was the dissemination of the transcript of the interview to the Director in breach of the requirements of the NSW Crime Commission Act? (3) If the answer to either of the first two questions is "Yes", was the trial of the appellant in respect of any counts unfair, so as to constitute a miscarriage of justice? (4) If so, what relief should be granted? 151The appellant's submissions did not focus on the propriety of the interview (question 1), nor on the lawfulness of disseminating the transcript to the Director, it having been conceded that such dissemination was unlawful. The focus was upon the answer to question 3, namely whether the unlawful dissemination rendered the trial unfair so as to constitute a miscarriage of justice. It is desirable, nevertheless, to identify the content and circumstances of the interview in order to answer the third question. 152Where the subject-matter of the proposed interview was not directed to the charges already laid against him, it seems unlikely that a pre-emptive attempt to prohibit the conduct of the interview would have been successful. In any event, there was no attempt to do so. 153The search warrant was executed at the Waterloo apartment on 7 December 2009. At the hearing on 16 December Mr Seong Won Lee was not examined as to the weapons with possession of which he had been charged, but was questioned (briefly) about his knowledge of money obtained by his father from his aunties and (at some length) in relation to his activities with the man who became the principal prosecution witness, Mr Brendon Pak, in relation to unpacking containers of washing powder (some of which was later identified as containing pseudoephedrine). 154It is clear that the presence of the weapons and money in the premises at Waterloo raised a suspicion as to the nature of the white powder found in the boxes marked washing powder. It may be inferred that drug charges were likely to be brought against Mr Seong Won Lee, in the event that drugs were detected in the washing powder located in the laundry. 155However, the police were not in a position to charge Mr Seong Won Lee with drug offences, until they had confirmation of the presence of drugs in the washing powder boxes, which did not occur until May 2010. Although the questioning at the interview was directed to his possible knowledge of the contents of the boxes, it was not suggested in this Court that the questioning was directed to a specific crime with which he had been charged. 156To take too narrow a view of the principle upheld in Hammond might tempt those responsible for laying charges to delay to allow the suspect to be compulsorily interviewed in respect of his or her alleged criminality. To delay charging for that reason would tend to undermine the important general law principle. Nevertheless, the appellant's submissions did not allege that the questioning strayed into a prohibited area; accordingly, the interview itself did not constitute an interference with the administration of criminal justice. 157The appellant's written submissions alleged that the "prosector's possession of the appellant's compulsory interview was in breach of the protective prohibition contained in the New South Wales Crime Commission Act ... and consequently denied the appellant's right to a fair trial": par 2. The dissemination of the transcript of the interview to the prosecution after a charge had been laid may reveal the nature of the defence which the accused is likely to pursue, but would not necessarily jeopardise a fair trial. The question is whether it has jeopardised a fair trial in the particular circumstances of the case. Thus to provide to a prosecutor compulsorily obtained material which "discloses defences or explanations of transactions by the accused which he or she may raise at trial ... could compromise a fair trial": R v Seller; R v McCarthy [2013] NSWCCA 42 at [104] (Bathurst CJ) (emphasis added). 158As the appellant correctly submitted, a close analysis of the content of the interview and the conduct of the trial was inappropriate. Further, evidence as to the advice given to the appellants, or the circumstances which influenced strategic decisions taken by their counsel and solicitor, are arguably irrelevant: TKWJ at [27] (Gaudron J) and [107] (Hayne J), (Gummow J agreeing with both). The possibility of unfairness should be determined objectively. It is appropriate for that purpose to refer to the content of the interview released to the prosecution and the conduct of the trial. If that inquiry reveals a risk of unfairness, that may constitute a miscarriage of justice. 159There are three ways in which the content of the interview could have assisted the prosecution. First, answers given could have resulted in further inquiries and investigations. Secondly, the evidence of conversations and activities involving Mr Pak could have been used to clarify aspects of Mr Pak's evidence and forewarn him of possible lines of cross-examination. Thirdly, the answers could have been used, indirectly, to prepare for cross-examination of Mr Seong Won Lee, in the event that he gave evidence. 160In relation to the first use, as discussed above, there is no prohibition on extra-curial use of information or evidence derived from the compulsory process. It is undoubtedly an important purpose of the powers conferred on the Commission that their exercise will lead to evidence which may be adduced at trial by the prosecution. That answers given under compulsion trigger further investigations is to be expected. The first possible use of the transcripts of the interviews can therefore not have given rise to relevant unfairness: R v Seller at [102]. Further, principles of transparency favour the prosecutor having access to material available to investigating authorities. 161There remains the question whether the second and third uses gave rise to a miscarriage of justice. Unlike Ridgeway, this was not a case in which any issue arose as to the admissibility of evidence; unlike Jago, it was not a case in which an issue as to unfairness arose prior to the trial, although if any conviction were to be set aside, there would be a question as to the appropriate consequential relief. Viewed in its own terms, there was no miscarriage of justice in the present case for three reasons. 162First, there is no authority for the proposition that merely because the prosecution has obtained inadmissible material potentially relevant to the defence of the accused, the trial will therefore be unfair. Were it otherwise, the rejection of a confession on a voir dire would stop the trial. There are good reasons which favour release to the prosecution of all potentially relevant material available to the police or other investigating authorities, so that the prosecutor can determine whether steps have been taken in the past which may affect the fairness of the trial. 163Secondly, no objection was taken at trial. Both appellants were aware of all the material in the prosecution brief well before the trial commenced. Mr Jason Lee relied on that material to press successfully for severance of the proceeds of crime charges. Neither appellant contested the propriety of the trial proceeding merely because the transcripts of Commission interviews had been provided to the prosecutor. No such objection was taken, it was submitted, because counsel appearing at the trial had not realised at the time that the transcripts should not have been disclosed. It may be accepted that counsel was not aware of the circumstances in which the transcripts had been released, but they were aware of the interviews having taking place and the content of the interviews (at least from the time they were supplied in the prosecution brief), so that failure to object to the trial proceeding was consistent either with the conclusion that no unfairness had arisen or was anticipated. However, absent practical unfairness, the failure to object is itself fatal to the present ground of appeal. 164Thirdly, the appellants (and in particular Mr Seong Won Lee) did not seek to establish any practical unfairness in the conduct of the trial resulting from the dissemination of the interviews. Nor, objectively speaking, was unfairness discernable. The high point of the case on ground 1 was that the prosecution had obtained, at their own request, the transcripts of interviews which should not properly have been provided by the Commission. It cannot be said that either appellant (and in particular Mr Seong Won Lee) thus lost a possibility of acquittal. Nor can it be said that for the trial to proceed in those circumstances tended to bring the administration of justice into disrepute. 165For these reasons ground 1 should be rejected.

[23]

Ground 2: Evidence of Brendon Pak 166Both appellants alleged that the trial judge failed to give adequate directions to the jury as to the unreliability of the evidence of Mr Pak. In written submissions in support of this ground, Mr Jason Lee relied upon the submissions made by Mr Seong Won Lee. The latter submissions focused upon a failure to warn the jury in respect of three matters, namely: (a) Mr Pak's expectation that he would not be prosecuted for any offence; (b) his expectation that he would obtain financial benefits from his testimony, and (c) the submission that Mr Pak's evidence was more credible by virtue of his bad character. 167Despite the appeal extending over three days, neither appellant put significant oral submissions in support of ground 2. To the extent that the unreliability of Mr Pak was referred to in oral submissions, the focus was on ground 3, alleging that the drug supply verdicts were unreasonable and unsupportable on the evidence. Accordingly, ground 2 may be dealt with briefly. 168It was common ground that Mr Pak was a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding [against the appellants]", within the terms of s 165(1)(d) of the Evidence Act 1995 (NSW). That section being engaged, the trial judge was required to warn the jury that the evidence might be unreliable, identify matters that may have caused it to be unreliable and advise the jury of the need for caution in determining whether to accept the evidence and what weight to give to it: s 165(2). 169There is no dispute that the trial judge gave a direction to the jury: it was said to be inadequate, however, for two reasons. First, it was said that the warning "did not extend beyond a level of abstraction that lacked reference to the specific matters that caused Mr Pak's evidence to be unreliable": written submissions, Seong Won Lee, par 29. Secondly, it was said that although the trial judge referred to "threats" to Mr Pak made by Commission officers, no mention was made to the jury of his expectation "that on giving evidence he would not be prosecuted" and that he expected "financial benefits for his testimony": par 30. 170The trial judge gave clear and precise directions to the jury. He warned them first as to the potential unreliability of the "hearsay evidence" given by Mr Pak of conversations between him and the appellants: Summing up, 14/03/11, p 21. He explained why such evidence was potentially unreliable. He then turned to the warning required by s 165 of the Evidence Act. He explained why he was giving the warning, namely that the experience of the courts accumulated over the years is that doubts may arise as to the reliability, being both the accuracy and honesty, of evidence given by a person who may have been involved in the criminal activities. He identified the possible motivations for untruthful evidence. The summing up continued (p 23): "Now in determining the reliability of Brendon Pak, you may wish to consider the alleged threats made by him to police at his second attendance at the Crime Commission and also the threats made to him, the alleged threats made to him at his home. The threats being that if he did not change the evidence, he faced twenty-five years to life in imprisonment and that he would lose his four children." 171The trial judge then set out six matters of evidence relied upon by the prosecution to support or confirm Mr Pak's evidence and which expressly linked him with Mr Jason Lee. He further identified five admissions made by Mr Pak regarding his character, namely that he was "a liar and a perjurer", that he had "lied to the Crime Commission", that he had defrauded his girlfriend by using her MasterCard after he had driven her to hospital, that he was "a welfare cheat" and that he had "a criminal record involving multiple dishonesty offences": Summing up, p 24. 172As to the criticisms made of the directions, it is correct to say that the trial judge did not refer expressly to Mr Pak's expectation as to non-prosecution or to the possible financial benefits he would receive. He did, however, note that there were "many reasons that the evidence of Brendon Pak may be unreliable", which reasons would have included those said to have been ignored. However, specific reference was made to those particular matters in recounting the submissions of counsel for each of the appellants: Summing up, pp 60(14), 61(18), 74(74) and 75(81). The points of complaint are of little moment. The jury clearly understood that Mr Pak had changed his story after threats that he would be charged and following statements which appeared to promise a financial benefit. That he had consequential expectations was not laboured either in cross-examination or in addresses: it was obvious. The failure of the trial judge to give the weight of his authority to such concerns was of limited significance. 173The third complaint was that the prosecutor had made submissions to the effect that Mr Pak's unreliable character rendered it more likely than otherwise that he had in fact agreed to importation of drugs at the behest of Mr Jason Lee. The prosecutor contended that "looking at what he's been doing in the past and what he is saying he did for Mr Lee, then you will be able to accept that not because he's honest, in fact because it's a thing he does". The appellants submitted that reasoning from past criminal conduct to a degree of credibility in admitting to further criminal conduct was a "seductive" but "impermissible" line of reasoning: written submissions, par 40. The only permissible line of reasoning was that a confessed liar was unreliable. The trial judge should, it was submitted, have warned the jury accordingly. 174There were reasons why Mr Pak might not have been believed; there were, however, aspects of his evidence which confirmed the relationship with Mr Jason Lee upon which the prosecution relied. Reading the summing up as a whole, the jury can have been left in no doubt as to the dangers associated with reliance upon his evidence, to which reference was made on multiple occasions. 175The challenge to Mr Pak's credibility contained risks for the appellants. Any fear Mr Pak held of being charged, convicted and imprisoned for importing pseudoephedrine would have been stronger if he had in fact committed such offences. However, if Mr Pak had committed such offences, the inference that the appellants were also knowingly involved was significantly strengthened. How the matters should properly be left to the jury in such a case may involve difficult questions of judgment for counsel at the trial. The fact that no redirection or further direction was sought in respect of the matters now raised is consistent with the impression gained from reading the summing up to the jury, namely that no benefit would be obtained from any further direction. If a further direction had been sought, its terms would have been a matter of some importance. There being no legitimate complaint about the directions given by the trial judge, leave to appeal should be refused, pursuant to r 4 of the Criminal Appeal Rules, in respect of ground 2. Grounds 4 and 5 176For the reasons given by Beech-Jones J, in Jason Lee's appeal, leave should be refused with respect to ground 4. With respect to ground 5, there should be a grant of leave, but the appeal dismissed.

[24]

Ground 6: post-search conversations 177The police search of the Waterloo apartment took place on 7 December 2009. At 2:50pm on the following afternoon, Mr Jason Lee had a telephone conversation with Mr Pak, who was then in Cairns. Five hours later a second conversation occurred. The translated transcripts of these conversations were identified as Exhibits AN and AO at trial. Mr Jason Lee's submissions referred to an alleged ruling by the trial judge that the conversations could not be relied on to demonstrate "consciousness of guilt" on the part of Mr Jason Lee. On that assumption, two errors were identified, namely: (a) the prosecutor had relied on "consciousness of guilt reasoning" in breach of the trial judge's direction, and (b) the trial judge had failed to direct the jury as to the use which could properly be made of the conversations. 178The first transcript revealed a telephone call made by Mr Jae Joon Cho (JC) to Mr Pak (BP). At times Mr Jason Lee (JL) appears to have been speaking on the telephone himself and at other times to have been speaking in the background. In part the transcript of the first conversation was as follows: "JL You have to come quickly, you bastard. You are in big trouble! BP What? JL I said you have to come quickly. You are in trouble! JC He says you are in trouble. Can you hear him? BP Yes, yes. ... [There is then a discussion about going to 'That place where you sent your father'.] JL Whether it is 12 o'clock or 1 o'clock in the morning, you just have to come and see father. JC That's what he tells you to do. BP OK. I know, I know, I know what that means. JC Come to your father. BP I know. I know what that means. I know what that means, but I am at the moment ... phew! JC Come running out here if you must. BP I get the message. I will ring you back. OK? JC In how many minutes? ... BP Yes, within either 20 or 30 minutes. JL I am begging you. BP Ah, yes. I know what that means! I do understand. JL I beg of you. BP I know what you mean. I do understand. JL I am begging you. Fuck! I ... Hey! You bastard. My bastard son is in there. BP Phew! Joon! I am on my way. Joon! JC Yes! BP I am on my way, now. I will somehow find a way to get there, now. I will somehow come. ..." 179The second conversation involved a call by Mr Jason Lee to Mr Pak. The transcript read in part as follows: "BP Hello! JL Yes. BP Yes. JL You listen carefully. BP Yes. JL Wait one moment. BP Yes, yes. JL Hello! BP Yes, yes. JL Hey! BP Yes. JL How about if you save me and save yourself as well? BP (Silent) JL All right? BP (Silent) JL You bastard, so far I have been (ind) so many days. BP Older brother, are you OK? JL At the moment, I am about to hang myself, you son of a bitch! BP Brother, I am sorry. I want to come, but I couldn't because there was no airline ticket. ... BP I will come early tomorrow morning. JL Hey! A car ... Hire a car if you must, and come! BP Brother! From Cairns, it'll take two days to get ther [sic] by car. JL I'm going nuts ... crazy! BP Brother, just hang in there a bit longer. I am coming (ind). JL That's not the issue now, you bastard! That's not the issue. BP Brother, are you OK? ... JL ... (ind) ... It is hard for me to talk. It is driving me crazy! BP Yes, brother. I know what you are saying. JL If you don't come, you will be in d-e-e-p trouble yourself, you bastard. You fucking bastard! BP I know that. I just cannot come now, though. Honestly! JL (Silent) BP I will really come early tomorrow morning, older brother. JL Just find a way to get here no matter what, you bastard! BP I get it. ... JL Listen carefully. ... JL The situation is that you have to be here whether it is early in the morning, late or late at night. You know what I am saying? [The remainder of the conversation involved Mr Pak explaining that he was in Cairns, that there was no flight available that afternoon and that he could not drive to Sydney. Mr Lee appears not to have understood where Cairns was or why Mr Pak was there, but eventually realised that he was coming as soon as he could.]" 180The transcripts were sought to be tendered in the course of Mr Pak's evidence in chief. The prosecutor stated (Tcpt, p 217): "I propose to tender them on two bases. One is the relationship between the accused and Mr Lee and also in relation, in my submission, to a consciousness of guilt. Once one reads the conversations in their entirety, in my submission it is clear that the accused, Mr Jason Lee, first of all knows that his son has been arrested and is concerned that this witness [Pak] returns immediately from Cairns to Sydney in order to both assist his son, assist Mr Jason Lee and to assist himself. In my submission, the only possible reason for that is that the accused is aware that Mr Pak is intimately connected with the importation of pseudoephedrine and knows that what he has brought in is what the police - or at least the accused believed - had found at the apartment at Lachlan Street." 181The admissibility of the transcripts had been raised before the trial judge at an earlier stage in the proceedings but, as he explained he had made no ruling on the matter: Tcpt, p 217(11). After hearing from the prosecutor, the trial judge then stated at p 217(32): "In relation to the second leg of your submission, that is a consciousness of guilt, that was the only matter which was put to me on the last occasion. The law is clear that for the Crown to rely on consciousness of guilt, it must be the only conclusion that the jury can find from the evidence and I rejected the material on that basis. But having heard the openings from Mr Grant and Mr Sutherland, the relationship between the accused and Mr Pak becomes extremely relevant to the consideration and the trust that Mr Pak may have - or that Mr Lee may have had - with Mr Pak. It certainly becomes relevant and on that basis, taking a general umbrella, the evidence as to those conversations do have that probative value. ... In terms of the umbrella of relevance, I have not read the conversations again, but that appears to have probative relevance. ... [p 218(25)]: SUTHERLAND: The only thing I want to add is this; it is the use that the Crown might seek to make of it. Because the Crown, as I perceive it, in the way the Crown was seeking to justify the admission of the material from the bar table now, is to invoke what can only be a consciousness of guilt. That raises the question of the prejudice outweighing the probative value. HIS HONOUR: The probative value is extremely strong having regard to the way you both opened the case. It shows a relationship, an intimacy, a reliance between Pak and Mr Lee, the elder, and it is certainly relevant. As to how the Crown can deal with it in his closing address, that will be a matter for further discussion, but I admit the tender of the conversations for the purpose of the relationship." 182Mr Pak was cross-examined by counsel for Mr Jason Lee in respect of the telephone call to Cairns. He gave the following evidence (Tcpt, p 469(11)): "Q. Then while you were up in Cairns you received information over the telephone that Seong Lee had been arrested and charged? A. Yes. Q. You spoke with a person called Jay [Jae?] on the phone, and you spoke with Jason Lee on the phone? A. Yes. Q. In the calls that the jury have heard? A. Yes. Q. And there was nothing said in those conversations about washing powder, just the fact that Seong had been arrested, correct? A. They didn't say Seong was been arrested, but indicate that Seong was in trouble, and then I guessed that it was like that, yes. Q. You flew back to Sydney? A. Yes." 183Mr Pak agreed that police met him at the airport, took him to a police room, searched him and removed his mobile phone. He was not told that he was under arrest, but believed he was not able to leave: p 471(10)-(25). He was asked at p 470(24): "Q. You were told you were in big trouble? A. They told me that the reason they come and pick me [up] was because Jason was thinking of threatening me, or harm me. Q. Yes. They told you that they believed that Jason would threaten you? A. Yes. Q. And they then in turn threatened you that you might be charged with a serious criminal offence, didn't they? A. Yes." 184Neither the judge nor counsel for any party returned to the question of consciousness of guilt prior to the prosecutor commencing his address. In order to understand the nature of the present complaint, it is necessary to note the terms of the prosecution address in this respect. Some little time after the prosecutor had commenced his address, he stated (p 1016(26)): "So the Crown case is in effect [in] three parts. The real part of the Crown case is what was found in the unit. The drugs, the money, the guns, and the connection to the unit by both Mr Seong Lee and the connection to the unit by Mr Do Lee. The other aspect is Mr Pak, and what you will do is you will look at his evidence, what he has to say and see whether it is supported by the other evidence, and surprisingly enough almost everything that Mr Pak has to say that deals with the issues that you have to decide are supported independently from the evidence that is material which he doesn't know is in the Crown case. The other issue is that of the analysts. They found it was pseudoephedrine, ... in my submission there is no real issue that the drugs aren't in fact pseudoephedrine. ... The other bit of material which the Crown relies on in relation to Mr Do Lee is the telephone call between Mr Pak and Mr Lee shortly after Mr Seong Lee was arrested. You might remember, and I will play them later on for you and I will take you to the detail, but that has a huge amount of importance, in my submission, in your consideration of the whole of the evidence, because Mr Jason Lee speaks to Pak and tells Pak that his son is in trouble, and he tells him Mr Pak is in trouble. ... So why would Mr Jason Lee tell Mr Pak that he's in trouble? The only possibility on the evidence is because of the drugs in the apartment, because remember at that stage the police had arrested Seong Lee. Why did they arrest him? They arrested him because of the firearm, the submachine gun, that had been found in the laundry. At that stage the money hadn't been found, and the drugs hadn't been found, the washing powder was there, the police saw it, but they didn't know what it was, and in fact, he wasn't charged in relation to that until sometime later. So why would Mr Pak be in trouble, unless he was involved in the washing powder. Any why would Mr Jason Lee tell Pak he was in trouble, except if it was the washing powder. The only possibility is because he knew the drugs were in the apartment, he knew the police had carried out the search warrant, and he knew that ultimately they were going to find out that all this powder was drugs. That's the only possibility. There was no suggestion whatsoever that Pak knew anything about the money in the apartment, there was no suggestion that Pak knew anything whatsoever about the guns in the apartment .... So when you look [at] that alone, you have to ask yourself, what's in the accused's mind, does he have knowledge of the drugs? And when you read that, that's the only conclusion in my submission will you find. But you don't have to look only to that. Look at the next call, which is five hours later, and you see the connection of Mr Jason Lee to the drugs, not only his knowledge of them, but the connection of them to him, because if you look about five lines from the bottom, 'How about if you save me and save yourself as well'. It could only refer to the drugs. There's nothing else that could have been found at the apartment that relates to Mr Pak and Mr Lee. How serious it is, at the top of the page he says, 'At the moment I am about to hang myself'. That's what Mr Lee is saying, I am not saying that this is what he actually had in mind, but it shows you both his concern for himself and his concern for his son. Later on talking about 'He's going nuts'. And then to confirm the importance of all this, and how much Mr Pak's involved, further down on that page he says, 'If you don't come, you will be in deep trouble' and apparently he spells the word 'deep', and Pak says 'I know that'. Remember this is about a month after Mr Pak had been at the Crime Commission, so we know that Mr Pak knew that the police suspected him of being involved in drugs, and we know that the police suspected him, that he had a connection with Mr Jason Lee. So when you put all of this together, this has to be a reference to the drugs in the apartment. That's why this particular telephone call is so important, because in my submission they can't relate to anything else but the drugs at the time when Mr Jason Lee didn't know what the police knew about the drugs." 185The submissions in respect of this issue were as follows: "133. The jury should have been directed, in accordance with his Honour's rulings, that the evidence of the conversations could simply not be used in the manner that the Crown impermissibly relied upon them. 134. Alternatively, in order to be used as an admission against the appellant, or an indispensable link necessary to prove guilt (here knowledge of drugs), the character of the conversation as an admission against interest had to be proved beyond reasonable doubt and there should have been a direction to the jury to this effect: Edwards v The Queen (1993) 178 CLR 193 at 210 per Deane, Dawson and Gaudron JJ. 135. The jury should also have been instructed that there may have been reasons apart from a realisation of guilt, such as panic, awareness of the contents of the search warrant via his son, reference to something other than the drugs, to escape an unjust accusation or to escape his son's unjust accusation, or reasons related to matters extraneous to the offence that would mean that the statements could not be used as an admission against interest, such as is done in cases where lies are used as admissions against interest: cf Edwards at 211." 186These submissions contained numerous flaws. First, the suggestion at par 133 that the trial judge had ruled that the evidence could not be relied upon in this way inaccurately characterized the statement made by his Honour when admitting the evidence. Secondly, the prosecution did not rely on the telephone conversation as "an indispensable link" in establishing the appellant's knowledge of the existence of the drugs. For example, the prosecution also relied upon the presence of the weapons and the large amount of money as indicia of drug dealing. Thirdly, the inference that Mr Lee knew there was pseudoephedrine in the washing powder did not derive from a lie to people in authority, but from an implied common understanding to be inferred from a conversation between possible co-offenders. Accordingly, the reference to Edwards v The Queen [1993] HCA 63; 178 CLR 193 was inapposite. 187The assumption underlying the submissions was that the prosecution had inappropriately invited "consciousness of guilt reasoning": written submissions, par 130. However, applying such a label neither captures the thrust of the prosecution's submission in the present case, nor the principle underlying the reasoning in Edwards. Edwards concerned a lie told by an accused about a material circumstance or event connected with the offence: at 210. The first problem in such cases, irrelevant to the present circumstances, is proving that the statement made was a lie. There is at least a risk of circularity in some circumstances, because an exculpatory statement may only constitute a lie if one is satisfied that the accused was involved in the crime. Further, there may be a number of reasons why an accused person has told a lie, other than the belief that to tell the truth would be an admission of guilt. (Indeed, there are forms of conduct which may demonstrate consciousness of guilt, other than lying: see A Palmer, "Guilt and the Consciousness of Guilt: the use of lies, flight and other 'guilty behaviour' in the investigation and prosecution of crime" (1997) 21 Melb U L Rev 95.) By contrast, in the present case, the prosecution relied on the statements made by Mr Jason Lee in the course of the telephone conversation with Mr Pak, not as untruthful or misleading in any sense, but as revealing of his knowledge of the contents of the boxes of washing powder. 188There is no substance in this ground of challenge; had there been, the appellant would have needed to overcome the obstacle provided by r 4, having taken no objection to the way the prosecutor put the matter to the jury and no request for a direction as to how the conversations could be used, beyond the directions in fact given. 189Leave to rely upon this ground should be refused.

[25]

(a) general principles 190It was convenient to leave until last the challenge based on a miscarriage of justice said to arise because the verdicts were unreasonable and unsupported by the evidence; in the course of dealing with the other challenges, much of the prosecution case has already been revealed. (There was no oral defence case as such - neither appellant called any witness, nor gave evidence.) 191The Criminal Appeal Act is said to follow the "common form" found in many (but not all) Australian jurisdictions, which derived from the Criminal Appeal Act 1907 (UK). The ground on which such intervention is permitted (and required) is where the appeal court is "of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence": s 6(1), first limb. The use of internal commas indicates that both unreasonableness and absence of support are to be judged by reference to "the evidence", including evidence accepted by the appeal court but not given at trial: s 12. 192Appellants sometimes rely upon this ground, rather than the third limb (namely that there has been a miscarriage of justice "on any other ground") to avoid identifying with precision any particular gap in the evidence or ground upon which a miscarriage may have occurred, while requiring the Court to apply the principles stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 494: "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 193The Court in M then stated that the appellate court was not substituting its decision for that of the jury's verdict, "for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". However, at 493, the joint reasons stated: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 194It is now clear that references to whether a particular conclusion was "open to the jury" were not to be understood as requiring the appeal court to ask "whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence": SKA v The Queen [2011] HCA 13; 243 CLR 400 at [20] (French CJ, Gummow and Kiefel JJ). Further, it is erroneous to consider the central question "whether on the evidence the Court was satisfied that the applicant was guilty of the offences - as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction". 195It is now standard practice for each judge of this Court to state that he or she has made his or her own assessment of the whole of the evidence: see, eg, Raad v R [2012] NSWCCA 268 at [11], [91] and [92]. So far it has not been considered necessary for each member of the Court to set out his or her analysis of the evidence. Further, it should not be necessary to refer to evidence not material to any gaps, inadequacies, inconsistencies or weaknesses pointed to by counsel for an applicant. Were it otherwise, this Court's reasons might need to reflect the scope of the summing up, which in this case (as in many cases) exceeded 100 pages of transcript.

[26]

(b) "miscarriage of justice" 196Infallibility is no more a characteristic of juries than it is of judges. The law acknowledges the possibility that a properly instructed jury, following an impeccably fair trial, may reach a verdict of guilt which should not be allowed to stand. For an appellate court to reach that conclusion involves both a practical difficulty and the resolution of a theoretical tension. The practical difficulty lies in the fact that the jury gives no reasons for reaching its collegiate decision. The theoretical tension lies in determining when to remove from the jury its constitutional role as fact-finder in a criminal trial. However, the two are related because the former makes it difficult to define the circumstances in which appellate intervention is allowed or required, in resolution of the theoretical tension. 197The language of s 6(1) seeks an evaluative judgment based on imprecise criteria. While the court should always give attention to the precise terms of the section, that exercise yields limited returns: cf Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [12]; Baini v The Queen [2012] HCA 59, at [14]. There are statutes and statutes: the common form s 6 of the Criminal Appeal Act is not a detailed set of rules governing private transactions, but a conferral of judicial power to cure perceived miscarriages of justice in the exercise of public (in this case criminal) law. As has long been recognised, its purpose and scope derived from its historical context, namely that it expanded the power of appellate intervention beyond errors of law: Hargan v The King [1919] HCA 45; 27 CLR 13 at 23 (Isaacs J); Raspor v The Queen [1958] HCA 30; 99 CLR 346 at 350-352 (Dixon CJ, Fullagar and Taylor JJ). 198By 1968, the language still adopted by the common form Criminal Appeal Acts in this country had been replaced in the UK by reference to verdicts found to be "unsafe or unsatisfactory": Criminal Appeal Act 1968 (UK), s 2(1), and now just to verdicts found to be "unsafe" (pursuant to an amendment in 1996). For a time, this language was adopted in Australian judgments. Although there has now been a reversion to the statutory language, it has not been suggested that the earlier authorities were not to be followed, although they may have blurred the first and third limbs of s 6(1). Thus, in M v The Queen at 493, Mason CJ, Deane, Dawson and Toohey JJ stated at 493: "But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside." 199In MFA v The Queen [2002] HCA 53; 213 CLR 606, McHugh, Gummow and Kirby JJ noted that the first limb did not permit a court to set aside a verdict upon "any speculative or intuitive basis": at [54]. Their Honours also noted diverging views in earlier authorities as to whether intervention was permissible only where a reasonable jury must have had a reasonable doubt, or whether some less restrictive test were appropriate. The joint reasons continued at [55]: "Nevertheless, in M, the majority of this Court favoured what might be termed a 'broader' test for unreasonableness or unsupportability of a verdict. Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence'." 200Use of the phrase "open to the jury" has been maintained in subsequent authority. Thus, in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], Hayne J (with the agreement of Gleeson CJ and Heydon J) stated: "It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard." [Emphasis in original.] 201After identifying the issue in dispute in that case, being the appellant's state of mind, Hayne J continued at [114]: "The answer to that question depended on what the jury made of the appellant's evidence. It was open to the jury to reach the conclusions they did." 202Similar terminology has been used in other cases: see, The Queen v Nguyen [2010] HCA 38; 242 CLR 491 at [33]; SKA v The Queen at [11] and [21] (French CJ, Gummow and Kiefel JJ); see also R v Klamo [2008] VSCA 75; 18 VR 644 at [38]-[40] (Maxwell P, Vincent JA agreeing) applying Libke. 203That language should not be misunderstood: it can imply such an absence of evidence as would require that the trial judge withdraw the case from the jury. In R v R (1989) 18 NSWLR 74 Gleeson CJ (with the agreement of Maxwell and Wood JJ) stated at 81, referring to an article by Glass JA, "The insufficiency of evidence to raise a case to answer" (1981) 55 ALJ 842: "An important point made in that article is that a question of the sufficiency of evidence to warrant a conviction, which is usually described as a question of law, is to be resolved by reference to evidence which supports a conviction without regard to evidence which favours the accused as, for example, by contradicting, qualifying or explaining the first mentioned evidence. ... As Hunt J pointed out in R v Haas (1986) 22 A Crim R 299, one major difference between a task of a court of criminal appeal in considering whether a jury's verdict is unsafe or unsatisfactory and that of the same court, or a trial judge, in considering in point of law whether there is sufficient evidence to sustain a conviction, is that in the former case regard is to be had to the totality of the evidence." 204This distinction, approved in Doney v The Queen [1990] HCA 51; 171 CLR 207 was affirmed in MFA at [26] by Gleeson CJ, Hayne and Callinan JJ. That a conviction may be challenged "on any ground of appeal which involves a question of fact alone" is clear from s 5(1)(b) of the Criminal Appeal Act. That the assessment under the first limb of s 6(1) at least permits a factual assessment based on the whole of the evidence is not in doubt. If the trial were otherwise conducted without error or unfairness, allowing an appeal under the first limb of s 6(1) will almost inevitably give rise to a judgment and verdict of acquittal, pursuant to s 6(2). 205There remains the question as to how the appeal court is to avoid "substituting trial by a court of appeal for trial by jury" - the fourth principle stated in M at 494 - and how the appeal court is to make "full allowance for the advantages enjoyed by the jury" - the third principle stated in M at 494. As noted in SKA at [13]: "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'" 206With respect to the question of substitution, subject to a leave requirement, the statute requires that the court independently assess the evidence in every case invoking the first limb of s 6(1). Accordingly, to deny that the court is substituting trial by a court of appeal for trial by jury depends entirely upon the willingness of the appellate court to intervene, as weighed against its willingness to respect the jury's exercise of its function in the criminal trial. 207So far as the first three propositions derived from M are concerned, it appears to be assumed that only in a minority of cases will the jury obtain a significant advantage from seeing and hearing the evidence. 208Principles routinely applied in civil cases require that where a trial judge's finding has been influenced by an opinion as to the credibility of witnesses, appellate intervention is limited to cases where "incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous" or are at least "glaringly improbable" or "contrary to compelling inferences": Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] and [29] (Gleeson CJ, Gummow and Kirby JJ). Further, it has generally been assumed that appellate intervention is more readily available in civil cases to review the reasoned decisions of judges, than unreasoned jury verdicts: Fox v Percy at [24]. In Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269, after quoting Dixon J in Hocking v Bell [1945] HCA 16; 71 CLR 430 at 490 that there is "no question in a trial that is regarded as so clearly within the exclusive province of the jury to decide as the reliance to be placed upon the evidence of a witness whom they have seen and heard", McHugh J continued that it is "for the jury to determine not only what evidence they accept but also what inferences should be drawn from the evidence that they accept": at [42]-[43]. 209Arguably a more rigorous approach should be taken to jury verdicts in criminal trials, because of the potential consequences of an erroneous conviction. Despite that, jury trials have been retained in respect of crime but have largely been abandoned in respect of civil cases in New South Wales. However, when comparing the potential for intervention on appeal in civil cases determined by judges and criminal cases determined by juries, the greatest difficulty is created by the lack of reasons for jury verdicts. Often it cannot be said with any confidence what reliance the jury placed on particular witnesses. The ability to sidestep appellate disadvantage in cases where a trial judge has not relied upon matters of demeanour, as revealed in his or her reasons, is not available in respect of a jury. 210The final matter of principle, as revealed by the authorities, is that despite frequent reference to appellate courts independently assessing "all the evidence" that phrase too should be considered in its historical context. It is designed to emphasise that the function of the appellate court is to review the facts and not merely determine as a question of law whether there was evidence available which would have supported a verdict, disregarding the contrary evidence. It does not require a full re-evaluation of all the facts and arguments run at trial, without the need for identified complaints from the appellant. To adopt such a course would be to disregard the respective functions of the jury and the appeal court and, at a pragmatic level, would impose an inappropriate burden on the system of appellate review. The unwillingness of some appellants to particularise the specific aspect of the case which is said to give rise to an unreasonable or unsupportable finding, may invite refusal of leave to appeal.

[27]

(c) application of principles: Jason Lee 211The written submissions for Mr Jason Lee summarised fully the evidence called by the prosecution in what was accepted to be a circumstantial case: paragraphs 35-82. Lengthy submissions were made in respect of the unreliability and inadequacy of the evidence of Mr Pak (paragraphs 60-82 and 95-96), the substance of which has been addressed above. There were various grounds, strongly put to the jury at trial, as to why they might have a reasonable doubt as to the reliability of his evidence. Reading the transcript of his evidence, however, it is understandable why the jury may have taken a favourable view of it. 212The appellants' case was not that they did not know Mr Pak, or had no dealings with him with respect to the washing powder: that he imported the powder found in the premises at Waterloo was not in dispute. Mr Pak denied knowledge of the presence of pseudoephedrine in the washing powder (evidence which may or may not have been believed). However, Mr Pak's evidence was not to be viewed in isolation. Once it was accepted that there was pseudoephedrine in the washing powder found at the Waterloo premises, Mr Pak's evidence that he received a large sum of money from Mr Jason Lee, together with his evidence that Mr Seong Won Lee assisted with unpacking and separating certain boxes, provided a coherent and plausible part of a broader picture. By way of example, he gave evidence that he put certain boxes aside under instruction from Mr Jason Lee: Tcpt, pp 209-210. He would then deliver the boxes to Mr Jason Lee. He further gave evidence that he received an amount of between $200,000 and $300,000 from Mr Jason Lee: pp 210-211. It was put to him in cross-examination that, in giving evidence to the Crime Commission he had denied that Mr Jason Lee was involved in any way in importing the washing powder, although the context of the denial was by no means clear: Tcpt, pp 278 and 291. 213He was cross-examined about two occasions on 28 January 2009 and 30 January 2009 when he arranged with a Mr Kwon to transfer two amounts of $100,000 to Korea: Tcpt, p 448-450. He was then asked whether he had explained to the Crime Commission that he had sold a property in Korea, which was a lie: pp 451-452. The cross-examination continued at pp 453-454: "Q. Well is it true to say that when you first met Tony Kwon when you running a restaurant in Campsie a couple of years before 2010? A. That is when I first met him 2008, then you are talking about karaoke bar. Q. I don't know whether it's a karaoke bar or what it is, was that where you first met Mr Kwon? A. Yes. Q. And then subsequently you approached him at Strathfield Money Transfer and spoke to him about transferring money, didn't you? A. Yes. Q. Did you ask Mr Tony Kwon if he would create Austrac documents that would indicate, on their face, that you had transferred money to Korea, but in fact you hadn't done so? A. Yes, I did. Q. Sorry? A. Yes, I did. Q. The documents that Mr Kwon created at your request were these, weren't they? Exhibit Y, just have another look at them? A. That's only one document. There is a few, not only one this. They've got several documents like this, exactly like this one. Q. You asked Tony Kwon to create forged or false documents for whatever purpose, didn't you? A. Yes, I did because Jason, Mr Jason asked me to do it. That's his money. Not my money. Mr Jason asked me to do it." 214It was put to him that this was "a pack of lies", which he denied: p 455(40). 215That evidence was, in effect, confirmed on re-examination and senior counsel for Mr Jason Lee obtained leave to cross-examine further: p 500(20). The further cross-examination included the following passage: "Q. Wait a minute. And it's your evidence, is it, that when you went to see Tony Kwon you told him you were doing a transaction for Jason Lee, is that what you say? A. Yes. Q. Sure about that? A. He knows it was Mr Jason Lee's money." 216The further cross-examination on that topic extended over several pages of transcript (pp 500-509). It is by no means clear that the jury would have concluded that Mr Pak was lying in relation to this evidence. Certainly it is not apparent that he was lying, from a reading of the transcript itself. As with much of Mr Pak's evidence, the jury had a very significant advantage over this Court in assessing Mr Pak. The evidence given at trial by Mr Pak was not inherently implausible and was clearly accepted by the jury, at least in part. I would not be prepared to reach a different conclusion, not having seen the witness at the trial. 217The written submissions challenged the availability of adverse findings in respect of possession of the guns and drugs, both in the main bedroom and in the laundry: paragraphs 83-94. Subject to two additional matters dealt with below, the submissions largely reflected the arguments on "possession" addressed by Beech-Jones J in his separate reasons. 218In respect of the firearm and drugs contained in the locked bedroom (counts 5 and 8), an additional issue was raised, namely that Mr Jason Lee had no proven means of access to the bedroom as at 7 December 2009 and, further, that others did: submissions, paragraphs 83-84. In respect of both drug charges (counts 6 and 8), an additional argument raised was that the jury should not have been satisfied that the white powder was pseudoephedrine. These submissions are addressed below. 219There was no direct evidence that Mr Jason Lee had a key to the bedroom, or indeed to the apartment. However, there was considerable evidence to support the view that Mr Jason Lee had lived in the premises prior to December and had kept personal possessions there. Legal papers in his name and pages headed "How to Cook Meth", and bearing his fingerprints, were found in the room. 220The fact that the apartment had been bought by a company of which Mr Jason Lee was, at the time of purchase, both the sole director and sole shareholder was consistent with him treating the apartment as a home or a base. The fact that he had personal items in the locked bedroom was also consistent with that conclusion. The fact that his son lived in the apartment (and had become the sole shareholder and director of the company owning the apartment) was not inconsistent with Mr Jason Lee's continued occupation and physical possession of materials within the locked bedroom. The fact that there was other DNA from unidentified persons on the papers and toothbrushes in the locked bedroom and ensuite did not raise a reasonable doubt as to Mr Jason Lee's occupation of the bedroom. There was no reason to doubt that Mr Jason Lee was the person who had control of the locked bedroom. Once it was accepted that he had such control, the combination of drugs, money and a gun were strongly indicative of possession of drugs for the purposes of supply. 221The second issue not yet addressed was the identification of pseudoephedrine. This challenge was directed primarily to the analysis undertaken by the Division of Analytical Laboratories in December 2009. At that stage, the washing powder had not been adequately tested for pseudoephedrine because the laboratory did not have a preliminary screening test: Tcpt, 22/02/11, pp 573-575. Ms Cullinan, the senior analyst responsible for the testing, gave evidence that the Marquis test, commonly used to detect pseudoephedrine, effervesced when added to detergent, thus not providing an effective screening test in a case where the pseudoephedrine had been mixed with a powder containing detergent: Tcpt, p 630. 222On 27 April 2010, Ms Cullinan undertook further tests, including a Chen's colour test and use of gas chromatography mass spectrometry. Both tests were positive. Further analyses were undertaken and certificates prepared for the purity of pseudoephedrine. 223In July 2010 samples were provided to Mr Aaron Heagney, an analyst at the Australian Forensic Drug Laboratory at the National Measurement Institute. Tests undertaken by Mr Heagney also returned positive results for pseudoephedrine at levels varying from 14.8% to 20.4%, subject to adjustment for an "uncertainty factor". 224There was no significant challenge to Mr Heagney's evidence, nor to the certificates produced by Ms Cullinan. The question ultimately became one of identifying the source of the relevant samples, but the police evidence in respect of the collection, transportation and storage of the samples was not seriously disputed. Thus, although it may be said that there was a significant doubt as to the presence of pseudoephedrine raised by the failure to obtain positive tests from initial samples, the evidence before the jury established beyond reasonable doubt that the powder tested did contain levels of pseudoephedrine reported by the analysts and that the samples were obtained from the powder taken from the Waterloo apartment. 225It may be accepted that where individual heads of challenge to particular aspects of a trial are unsuccessful, there may nevertheless be grounds for thinking that the verdicts were unreasonable or not supportable on the evidence. However, this was not a case in which such a ground had any real prospects of success. Accordingly, leave to appeal on this ground should be refused.

[28]

(d) application of principles: Seong Won Lee 226The written submissions for Mr Seong Won Lee focused on the relevant elements of "possession" in respect of items located in the laundry cupboard: paragraphs 48-51. The thrust of the complaint was that others clearly had access to the premises and it was not possible to be satisfied beyond reasonable doubt that Mr Seong Won Lee knew of and possessed the firearms in the laundry and was knowingly concerned with Jason Lee's supply of the drugs contained in the washing powder located in the laundry. The evidential basis for the elements of possession is considered by Beech-Jones J, whose reasons with respect to counts 1-4 I adopt. Ground 3 should be rejected. 227Ground 4 addressed the conviction on count 7, namely being knowingly concerned in the supply of the pseudoephedrine located in the laundry. The prosecution case on count 7 was that Mr Seong Won Lee knew that his father was storing drugs in the laundry and that he permitted his father to do so. The issue is whether the jury could properly be satisfied that Mr Seong Won Lee knew that his father supplied the drugs the subject of this count and count 6. 228In his summing up the trial judge identified a number of matters that were relied upon by the Crown to establish this aspect of count 7, namely: (a) Mr Seong Won Lee's admission that he resided at the unit; (b) the agreed fact that Mr Seong Won Lee's father had also previously resided at the unit; (c) the marked washing powder boxes containing prohibited drugs were situated in an open and accessible part of the unit, namely the laundry; (d) the weight of the powder located in the laundry was 34.1446kg; (e) the firearm the subject of count 1 (a silencer, two firearm magazines, a brass catcher), the gun cleaning kit, Mr Seong Won Lee's mobile phone contract and the sex toy carrying his DNA profile were all in the laundry in close proximity to the prohibited drugs; and (f) the evidence of Mr Brendon Pak: Summing up, Tcpt pp 32 - 33. 229Two aspects of Mr Pak's evidence directly implicated Mr Seong Won Lee. First, Mr Pak stated that on occasions Mr Seong Won Lee assisted him in unloading containers with boxes of washing powder. This aspect of his evidence was not in dispute. Second, Mr Pak asserted that Mr Seong Won Lee identified and separated out selected marked boxes: Tcpt pp 179 and 207. Mr Pak said that there were other activities, including removing marked boxes from containers, with which Mr Seong Won Lee did not assist. 230Mr Seong Won Lee made three submissions. First, he challenged the reliability and significance of Mr Pak's evidence. Mr Pak's general reliability has been addressed above. He also contended that Mr Pak's evidence as to the selection of boxes by Mr Seong Won Lee was "equivocal at best" and otherwise was inconsistent with his evidence before the NSW Crime Commission. However, Mr Pak clearly stated that on some occasions Mr Seong Won Lee did select marked boxes. In cross examination Mr Pak agreed that he did not tell the Crime Commission about the role of Mr Seong Won Lee in choosing boxes. Nevertheless he denied that "on every occasion" that Mr Seong Won Lee took boxes they were the boxes chosen by him, Mr Pak, and not Mr Seong Won Lee: Tcpt p 280. The jury were well placed to consider Mr Pak's evidence on these issues. 231Secondly, Mr Seong Won Lee challenged the prosecution contention as to "the unlikelihood that having resided at the premises, [he] did not know that the material in the laundry was a prohibited drug". However, this misstated the prosecution case which relied on his residency of the unit and the amount and location of the drugs, in combination with the other matters noted at [228] above. 232Thirdly, the submissions challenged the prosecution's reliance on his connection with the firearms in the laundry. This aspect has been addressed by Beech-Jones J in dealing with ground 3 of Mr Seong Won Lee's appeal. His connection to the firearms and their proximity to the prohibited drugs substantially strengthened the prosecution case on count 7. 233If Mr Pak were accepted, the combination of factors set out at [228] above provided a sufficient basis for concluding that the prosecution had established beyond reasonable doubt that he had the relevant knowledge to satisfy count 7. 234Had Mr Pak not been believed in respect of his description of the assistance given by Mr Seong Won Lee, then it is arguable that the other evidence was sufficiently equivocal as to his knowledge that it might give rise to a reasonable doubt in the mind of this Court. However, it was open to the jury, which saw Mr Pak, to accept his evidence as to the selection of boxes. It was, for example, undisputed that Mr Seong Won Lee helped with the unloading and Mr Pak's evidence in that respect must readily have been accepted. The fact that Mr Pak himself may have known which boxes to select, on instruction from Mr Jason Lee or otherwise, would not be inconsistent with Mr Seong Won Lee also having that knowledge; indeed, given the family relationship with Mr Jason Lee, the inference that the son knew that certain boxes contained drugs was highly plausible. 235To the extent that the material is capable of raising a doubt as to Mr Seong Won Lee's guilt, it would be a doubt of a kind that was resolved by the jury's advantage in seeing and hearing the evidence of Mr Pak. In the circumstances, I would not be satisfied for myself, not having seen Mr Pak give evidence, that a reasonable doubt should be held as to the guilt of Mr Seong Won Lee on count 7. There should be a grant of leave to with respect to ground 4, but the appeal should be rejected.

[39]

Ground 4 - Mr Jason Lee - Directions contemplating joint possession for Counts 5 and 8 250Ground 4 of Mr Jason Lee's appeal contends that his trial on counts 5 and 8 miscarried by reason of the directions given by the trial judge. Those directions were said to allow for the possibility of him being convicted for jointly possessing the firearm and drugs found in the main (locked) bedroom, whereas the Crown case was said to be that Mr Jason Lee alone possessed them. Amongst other matters it was said that the effect of these directions was to negate the exculpatory nature of the evidence suggesting that persons other than Mr Jason Lee accessed the main bedroom. 251To address this ground it is necessary to outline how the Crown put its case on these counts and how Mr Jason Lee responded. Counts 5 and 8 charged only Mr Jason Lee and not his son, Mr Seong Won Lee. The pistol the subject of ground 5 was located in the locked bedroom as was the pseudoephedrine the subject of count 8. 252In his opening the Crown Prosecutor referred only to Mr Jason Lee possessing those items. In his closing address the Crown Prosecutor pointed out that only Mr Jason Lee was charged by counts 5 and 8. However the Crown Prosecutor also suggested that the jury "might think" that Mr Seong Won Lee also "knew about and possessed the drugs and the pistol in the main bedroom" and that they could consider that when addressing his guilt on the counts concerning his possession of items in the laundry. At this point the trial judge intervened. With the approval of Counsel for Mr Seong Won Lee his Honour requested that the Crown Prosecutor withdraw the submission and advise the jury they "should disregard any connection between Mr Seong Won Lee and the drugs in the [locked bedroom]". The Crown Prosecutor complied with this request. Senior Counsel for Mr Jason Lee, Mr Sutherland SC, did not make any submission on this issue. 253Later in his address to the jury the Crown Prosecutor anticipated that reliance would be placed by Mr Jason Lee on the presence of fingerprints from other persons in the locked bedroom as well as DNA located on items in the bedroom and the toothbrushes in the en suite bathroom. He submitted: "It may be that there were other people in the unit. The Crown doesn't say that there weren't fingerprints found from other people. When the fingerprints were put on nobody knows. Could have been put on at any time. It could be that other people were involved in the drugs as well as the two accused, that is certainly a possibility, but it is not a matter which, in my submission, so far as the Crown case, it carries no weight whatsoever, and as far as the defence case, in my submission you would be drawing a very very long bow to connect some unidentified DNA, female A or B, and some unidentified fingerprint found in odd places with having responsibility for this material instead of the accused." 254Mr Sutherland SC did rely on this material, submitting to the jury as follows: "My submission is who on earth was going in and out of this room? You are meant to conclude, presumably, it was Jason Lee to the exclusion of the whole world, including his son unless somehow or other his son is implicated, but his son is not charged with what's in the room. It is, in my submission to you, nothing more than speculation. ... There is the DNA of an unknown male on one of the heat sealed plastic bags. Not Jason Lee. Not, for that matter, Seong Lee. Whose is it? Has anybody that might loom as a potential person of interest been excluded there? No. Why not? I don't know. What I do know is that there is evidence of unknown DNA. " (emphasis added) 255The first paragraph of this extract briefly touches upon the point that the Crown Prosecutor commenced upon in his address before being stopped by the trial judge, namely that perhaps Mr Seong Won Lee was in possession of the items in the main bedroom or at least could not be excluded from control of them by his father. The topic is only lightly touched upon because the maker of the submission accepted that a conclusion that Mr Seong Won Lee could not be excluded by his father from access to the bedroom would not exonerate Mr Jason Lee if Mr Seong Won Lee was also "somehow or other ... implicated". Presumably the submission was not developed further because it had the potential to generate an avenue of speculation that was of no assistance to Mr Jason Lee but which could have been very dangerous to Mr Seong Won Lee. 256At the conclusion of Counsels' addresses the trial judge read out the proposed form of directions. Ultimately his Honour gave the jury the following direction in relation to the possession element of count 8 which reflected what was discussed with Counsel: "The Crown must prove that the accused intentionally had the substance in his physical custody or control, to the exclusion of others, except anyone who was acting jointly with him in committing the alleged offence. The Crown must prove that the accused intentionally had the substance in some place to which either he alone, or together with some other person acting jointly with him in committing the alleged offence, had access, and might go to get physical custody or control of the substance. The Crown must negate possession on the part of any other person. If there is a possibility that a person, or persons, other than the accused had possession of the drug in question, (other than those jointly with the accused), the Crown must prove that the accused had possession to the exclusion of that other person or persons. To put it another way, the Crown must rule out the possibility that the prohibited drug was in the possession of a person, or persons, other than the accused, who had access to the bedroom". (emphasis added) 257Later his Honour directed the jury in relation to count 5 to similar effect, that is by referring to the need for the Crown to demonstrate possession by the accused Mr Jason Lee acting alone "other than [persons acting] joint[ly] with the accused". 258At the conclusion of his Honour's summing up for that day and in the absence of the jury, Mr Sutherland SC provided the trial judge with a copy of the decision in Dib v R (1991) 52 A Crim R 64. The next morning he raised with the trial judge the giving of a direction that would assist the jury in understanding "how Mr Jason Lee is in possession in circumstances where he didn't live there and he wasn't in occupation" and "the Crown is not running joint possession, as I understand it". 259The relevant part of Dib to which the trial judge was referred was the following passage from the judgment of Hunt J (at 66 to 67): "What must usually be conveyed to the jury - in addition to the elements of knowledge referred to in He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203 (see also Baird (1985) 3 NSWLR 331) - is that, at the relevant time when possession is alleged, an accused had (subject to any investigatory and seizure powers given to the police and others) the right to exclude any person not acting in concert with him from interference with the property in question. He must have that property either in his manual possession or in a place to which he (and any person acting in concert with him) may go without physical bar in order to obtain such manual possession of it. Where (as in the present case) the Crown seeks to establish an accused's possession of property found not within his manual possession but rather in premises to which he has access, it must - in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property - persuade the jury that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him). In a case where two or more accused are alleged to be in joint possession of the property, the Crown must establish that they all had that legal right." (emphasis added) 260Consistent with the last sentence in the first paragraph of this extract, the trial judge agreed to give a direction that the Crown must establish that Mr Jason Lee had "the property either in his [manual] possession or in a place to which he may go without physical bar in order to obtain such manual possession of it". Mr Sutherland SC, then referred the trial judge to the second paragraph of Dib extracted above which led to the following exchange: "HIS HONOUR: No, I do have a problem with that next paragraph but I don't have a problem with - SUTHERLAND: I didn't mean the last sentence in the next paragraph, it was the penultimate sentence where it is the legal right to exclude all persons - HIS HONOUR: No I don't believe that is the law applicable to this case but I am happy - 'he must have the property in his actual possession or in a place to which he, and any person acting ... (not transcribable) ... may go without physical bar in order to obtain such actual possession of it'. Yes I am happy to include those lines. Thank you. SUTHERLAND: I think that actually accords with the paragraph in the bench book. I won't waste any more time on it ..." (emphasis added) 261Thus Mr Sutherland SC referred the trial judge to the "penultimate sentence" in the second paragraph of the above extract from Dib, which also referred to "those acting in concert" with the accused. 262After further discussion the trial judge read out the proposed further direction: "Just "the Crown must prove beyond reasonable doubt that the accused intentionally had the substance at some place to which he, either alone or together with some other person acting jointly with him in committing this offence, had access that might go to get physical custody or control of it". (emphasis added) 263There were no further submissions in respect of this aspect of the directions. Consistent with this exchange the trial judge gave the jury the following further direction: "The Crown must negate possession on the part of any other person apart from the accused. Where there is a possibility that person or persons other than the accused had possession of the drugs in question or the firearms or weapons in question other than jointly with the accused, the Crown must prove the accused had possession to the exclusion of that other person or persons. To put it another way, the Crown must rule out the possibility that prohibited drug in respect to the drug counts and the firearm weapons in respect to the firearms and weapon counts was in the possession of a person or persons not being either of the accused who had access to the apartment or to the bedroom. I am going to add now that the Crown must prove the accused intentionally had the substance in some place to which he, either alone or together with some other person acting jointly with him in committing the alleged offence, had access and might go to get physical custody or control of it. That is the additional direction." (emphasis added) 264Thus at the various points when the trial judge either proposed or gave directions in respect of the concept of possession so far as it concerns counts 5 and 8 his Honour referred to Mr Jason Lee being in possession "either alone or together with some other person acting jointly with him" in committing the offence. At no stage was any complaint made on behalf of Mr Jason Lee about that aspect of the direction. The only matter raised was a request for a direction explaining to the jury how Mr Jason Lee could be in possession of the items in the main bedroom without his being in occupation of the apartment. In doing so his Counsel urged the trial judge to give a direction referable to a sentence from the judgment in Dib which itself contained a reference to persons "acting in concert" with the accused. 265The exchanges between Mr Jason Lee's counsel and the trial judge indicated that the origin of the form of the directions being debated, including the reference to excluding possession by other persons "except anyone who was acting jointly" with the accused, was a version of the bench book that both were in possession of (see [260] above). A direction as to possession containing those words derives support from the emphasised passages in Dib that have been extracted above. Similarly when discussing the meaning of the phrase "actual possession" in Moors v Burke [1919] HCA 32; 26 CLR 265, the High Court stated (at 274): "'Having actual possession' means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused ..." (emphasis added) 266I discuss Moors v Burke further below in addressing ground 5 of Mr Jason Lee's appeal. It suffices to state that the facts of Moors v Burke raised the possibility of another person exercising physical control over the item in question who was clearly not "acting in concert" with the appellant in that case. 267In R v Wan [2003] NSWCCA 225; 140 A Crim R 513 at [14] Adams J (with whom Wood CJ at CL and Simpson J agreed) noted that the reference to "acting in concert" as used in Dib was to someone who is acting in concert with the accused "in relation to the possession of the drugs" (emphasis omitted). His Honour expressed concern that it might be misunderstood as referring to some other form of agreement such as one between the accused and persons whom the accused had agreed to supply drugs to. In my view any such confusion is less likely to arise when the phrase "acting jointly" is used as opposed to "acting in concert". 268In any event there is nothing per se objectionable about a direction of the kind discussed in Moors v Burke or Dib being given especially when the evidence suggests that persons who may have been associated with the accused have had access to the items in question. None of the cases that the Court was referred to suggested to the contrary. 269Nevertheless this ground of Mr Jason Lee's appeal takes issue with that part of the direction which referred to persons acting jointly with him. It was submitted on his behalf that the Crown case was not one of joint possession but of sole possession by Mr Jason Lee and that the jury should have been instructed that to find him guilty they had to be satisfied that he was in possession of the drugs and gun found in the room to the "exclusion of all others, including other occupants of the unit". He complains that the jury were not but should have been directed that the Crown had to eliminate the possibility that Mr Seong Won Lee or other persons who may have had access to the main bedroom were either individually or collectively in possession of the items found there to the exclusion of Mr Jason Lee. He points to the occupation of the apartment by Mr Seong Won Lee "with his girlfriend" and submits that either of them "could be taken to have dominion and control" over the items in the main bedroom. He also submits that the trial judge's further directions allowed for Mr Jason Lee to be convicted on speculation that he was in joint possession with other unidentified persons and meant that the evidence of other persons' DNA being present in the room was denied its exculpatory effect. 270One difficulty with these contentions is that they misstate the Crown case by asserting that the Crown was precluded from suggesting that anyone else was implicated with Mr Jason Lee in the conduct the subject of counts 5 and 8. It is true that only Mr Jason Lee was charged with possession of the items the subject of counts 5 and 8. However that is not the same as the Crown confining itself to only a case of sole possession by Mr Jason Lee. It also does not preclude the Crown from responding to a defence submission that other persons might be in possession of the contraband items, by pointing to the possibility that they may be implicated with him (see R v Wan at [20]). Thus the Crown Prosecutor attempted to submit that Mr Seong Won Lee might be a joint possessor with Mr Jason Lee but (understandably) was prevented from doing so by the trial judge because of concern over prejudicing Mr Seong Won Lee's position. Further in anticipation of a submission being made on behalf of Mr Jason Lee that the presence of other people's DNA on various items in the room negated the Crown case, the Crown Prosecutor raised the possibility that such other persons may be implicated with Mr Jason Lee. None of this was objected to by Senior Counsel for Mr Jason Lee as being inconsistent with the Crown case. To the contrary Senior Counsel for Mr Jason Lee floated the possibility that Mr Seong Won Lee was in possession and also referred to the qualification now said to be objectionable ("unless somehow or other his son is implicated"). Both parties addressed the jury on a basis that the Crown case was not confined in the manner suggested by Mr Jason Lee's submissions. 271Given these matters and leaving aside Rule 4 of the Criminal Appeal Rules, I am not satisfied that there was any error much less a miscarriage of justice in the trial judge providing the jury with a form of direction that reflected the discussion of "actual possession" in Moors v Burke albeit it referred to acting jointly as opposed to acting in concert. His Honour's directions did not undermine the exculpatory effect of the evidence of the presence of others in the main bedroom but instead enabled the jury to consider it in its correct legal context. Further, the direction that the Crown had to negate possession on the part of any other person subject to the caveat as to whether they might be acting jointly with him was sufficient to encompass Mr Seong Won Lee or his girlfriend. I do not consider that it was necessary to go further and specifically discuss the position of Mr Seong Won Lee in that respect given the exchange that had occurred earlier. Nor do I consider that it was necessary for the trial judge to specifically discuss the position of Mr Seong Won Lee's girlfriend. The possibility that she was a possessor of the contraband items found in the main bedroom was not addressed in any of the addresses to the jury. 272In any event it follows from the above analysis that Rule 4 is applicable to this ground of appeal. The trial judge's directions on these counts consistently qualified the obligation imposed on the Crown to exclude possession by persons other than Mr Jason Lee so that it did not embrace persons who might have been acting jointly with him. This is not surprising since that possibility was addressed in both sets of submissions. At no stage did Mr Jason Lee's counsel raise any issue with that aspect of the direction or seek any of the additional directions referred to in the submissions in support of this ground. No basis has been shown for the grant of leave under Rule 4 and I propose that it be refused. 273Although it was not the subject of a separate ground of appeal, a further submission made on behalf of Mr Jason Lee in respect of this ground was that the trial judge failed to direct the jury that the element of possession had to be established as at the date charged in the indictment, namely 7 December 2009. I have extracted parts of the summing up on count 8 above. The relevant part of the summing up which concerned the possession element for each of counts 5 and count 8 did not specifically refer to the need to be satisfied that Mr Jason Lee was in possession of the relevant item as at 7 December 2009. However I am satisfied that the necessity for the jury to be satisfied of that matter was sufficiently conveyed to the jury by the summing up as a whole. 274The structure of the summing up was that after providing the jury with a number of general directions concerning such matters as the jury's role, the onus of proof and the drawing of inferences, the trial judge addressed each count on the indictment. The trial judge first addressed counts 6 and 7, then count 8, then counts 1 and 5 which both alleged possession of firearms and the remaining firearm counts 2, 3 and 4. His Honour then summarised the submissions of the Crown Prosecutor and Counsel for the defence before giving the further direction that I have referred to above at [263]. His Honour then summarised the evidence of some of the witnesses in the trial before the jury were sent home for the day. They returned the next day to begin their deliberations. Later the jury returned with questions about counts 6 and 7 and his Honour gave further directions on those counts. 275In that part of the summing up that addressed counts 6 and 7 for the first time and then addressed count 8, the trial judge did not specifically refer to the need for the Crown to establish possession as at 7 December 2009. However the summary of the evidence relied on to establish possession for each of these counts conveyed the significance of the date of 7 December 2009. Thus for counts 1, 5 and 8 his Honour reminded the jury that the evidence was that Mr Jason Lee "did not reside at [the apartment] on 7 December 2009". With both counts 1 and 5 His Honour read to the jury that part of the indictment that alleged possession of the item by Mr Jason Lee "on 7 December". When summarising the submissions Mr Sutherland SC the trial judge told the jury: "Mr Sutherland submitted that as to the possession in respect of each count, it has to be possession on 7 December 2009." 276Later when returning to counts 6 and 7 following a question from the jury the trial judge specifically referred at three points to the date of the offence being 7 December 2009. 277A summing up needs to be read in its context, namely as a communication between a trial judge and members of a jury who have all followed the course of the same trial from the time the accused was arraigned until the final submission was complete. Each count of the indictment referred to 7 December 2009. The summing up reads as a communication to a jury that were fully cognisant of the significance of the date on which the Crown had to establish possession on the part of the accused, namely 7 December 2009. This was reinforced by the matters I have referred to, especially the trial judge's repetition of Mr Sutherland SC's submission about the significance of that date. Any doubt about this is dispelled by the failure of Counsel for either accused to complain about this matter or seek a further direction. Rule 4 is clearly applicable to this additional complaint and I would refuse leave to raise it. 278I would refuse Mr Jason Lee leave to rely on ground 4 of his appeal.

[40]

Ground 5 - Mr Jason Lee - Directions on counts 6 and 7 279Count 6 charged both Mr Jason Lee and Mr Seong Won Lee with (deemed) supply of the pseudoephedrine located in the laundry. Count 7 was in the alternative and charged Mr Seong Won Lee with knowingly take part in (Mr Jason Lee's) supply of the pseudoephedrine located in the laundry. Mr Jason Lee was found guilty of count 6. Mr Seong Won Lee was acquitted of count 6 but found guilty of count 7. Ground 5 of Mr Jason Lee's appeal complained that the trial judge's directions to the jury concerning his alleged possession of the drugs found in the laundry were erroneous. Amongst other matters he contends that the Crown case was confined to alleging that he jointly possessed the drug with Mr Seong Won Lee but the directions enabled him to be convicted on a different basis. 280As I will explain the resolution of the parties' competing submissions turns in part upon how one characterises the Crown's case. However, at the outset it is necessary to note a fundamental aspect of the concept of possession whose significance may have been overlooked even though it was referred to in both the directions to the jury and exchanges between Counsel and the trial judge in the jury's absence, namely the need for the person in possession to have exclusive control over the item in question. Thus in Moors v Burke the High Court cited with approval a quote from Frederick Pollock and Robert Wright, An Essay on Possession in the Common Law (1888) that "[n]o phrase is more usual for describing the ordinary test of possession than the question- "had he the separate undivided and exclusive control of the thing'" (at 270; emphasis in original). The High Court continued (at 270 to 271): "The requisite of exclusiveness is insisted on by other writers of authority...Judicial opinion of the highest rank supports this...Possession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world." 281It follows from this that two persons can only be in possession of the same item if they are so jointly or "in concert" and they must exercise or be capable of exercising their power of exclusive possession against all outsiders. Absent such joint possession it is not possible for two persons to both be in possession of the same item because by definition each of their respective powers of control cannot be exclusive. This is illustrated by the facts of Moors v Burke. The appellant was a customs clerk who placed wool of suspicious origin in a locker. On appeal he was acquitted of being in "actual possession" of personal property suspected of being stolen contrary to s 40 of the Police Offences Act 1915 (Vic). This was so because another customs clerk "had equal right and power with [the appellant], and independently of him, to open the locker and take out its contents" (at 274 to 275). 282In his opening the Crown Prosecutor advised the jury that the trial judge would give them directions about the meaning of "possession" but added that "essentially" it meant that "you have control over the item and that you know what the item is, and that you can exclude everybody else from having that item, except those people who have a joint interest in that item with you". In relation to counts 6 and 7 the Crown Prosecutor stated, inter alia: "If you have a look at count 6 it says 'On 7 December 2009 at Waterloo in the State of New South Wales supplied a prohibited drug, namely, pseudoephedrine'. You won't hear any evidence in this case about supply, that is, that the accused or either of them gave pseudoephedrine to anybody. The only issue in the Crown case will be that it was in the apartment of the accused and that they had possession of it. ... In relation to count 6, the Crown says that both accused possessed that prohibited drug. However, there is an alternative count in relation to the younger of the two and that's if you weren't satisfied that the accused Seong Lee possessed the prohibited drug then you would be satisfied that he knowingly took part in the supply of the drug. Again you will hear directions later on but essentially the difference between those two counts is that, in the count 7, the Crown says if you are not satisfied that Mr Seong Lee possessed the drugs then you find that he allowed his father to leave them in the unit, knowing that they were there. That is essentially the difference. When you hear all the evidence it will be very clear to you." (emphasis added) 283Later in his closing address the Crown Prosecutor stated: "Count 6 is that both accused supplied or possessed the prohibited drug. Count 7 is an alternative count, that is, if you weren't satisfied that Mr Seong Lee possessed the drug, that he knowingly took part in the supply, and the Crown case in relation to that is well, if you weren't satisfied that he actually had control over these drugs, that he knew they were there and he allowed his father to leave the drugs in the apartment. That is essentially the difference between those two counts" 284The statement by the Crown Prosecutor in his opening that it was the Crown case on count 6 that "they", being both Mr Jason Lee and Mr Seong Won Lee, had possession of the drugs the subject of that count contained an ambiguity that was not expressly addressed during the trial. The statement was capable of referring to only a case of joint possession by Mr Jason Lee and Mr Seong Won Lee. If the Crown case was so confined then it meant that the Crown case could only be established if it proved possession by both. Alternatively the statement was capable of meaning that it was the Crown's case that there was joint possession by both or individual possession by either (or with others). In that event the Crown case against one would not fail if the Crown failed to prove possession by the other. The terms of count 7 point to this alternative being the correct one. If the Crown case was confined to being only one of joint possession by the two of them then count 7 could never arise as the failure to prove possession by Mr Seong Won Lee that would lead to his acquittal on count 6 would also necessitate the acquittal of Mr Jason Lee on count 6. The acquittal of Mr Jason Lee on count 6 would make it impossible for Mr Seong Won Lee to knowingly assist Mr Jason Lee's supply of the drug as charged by count 7. The conclusion that the Crown case on count 6 encompassed joint possession by both or individual possession by at least Mr Jason Lee is reinforced by the Crown Prosecutor's brief outline of count 7 to the jury. The scenario of Mr Seong Won Lee allowing his father (Mr Jason Lee) to leave the drugs in the unit suggests a scenario whereby Mr Jason Lee has possession of the drugs and Mr Seong Won Lee has occupancy of the unit. 285The potential difficulty with counts 6 and 7 arose during the closing address by Mr Sutherland SC. He characterised the Crown's case as being that the items in the laundry "were jointly possessed by the father and the son". The following exchange then occurred in the presence of the jury: "HIS HONOUR: The Crown didn't put joint possession. Individual possession. Both possessed. SUTHERLAND: Sorry, your Honour. HIS HONOUR: Not joint, both possessed. SUTHERLAND: Each possessed as opposed to joint possession. HIS HONOUR: Yes. SUTHERLAND: I understand the distinction your Honour brings." 286Mr Sutherland SC then continued with his address characterising the Crown case as "Mr Jason Lee possessed the items found out in the common area [ie the laundry]". He then addressed the Crown case on the items found in the main bedroom before the jury retired for lunch. In the absence of the jury the following exchange occurred about the Crown case: "CROWN PROSECUTOR: Your Honour, it is the Crown case that is joint possession of the items. I am not sure I understand the possibility of individual independent possession in the circumstance. HIS HONOUR: How do you explain Count 7? You see, it has to be individual possession in Count 7. HIS HONOUR: It has to be individual possession for there to be consent. SUTHERLAND: I ignored it for the moment for Seong Lee, but I had always understood the Crown to say it was joint possession against me outside [the main bedroom], that's why I went the way I did. I haven't tried to resolve Count 7. CROWN PROSECUTOR: Count 7 is the alternative count which relates to if the jury are not satisfied of joint possession. HIS HONOUR: If they are not satisfied of joint possession, they can't be satisfied that Mr Jason Lee was in possession, so I think it has to be individual. CROWN PROSECUTOR: They don't have to be satisfied that he possessed it to the exclusion, I thought it was for count 7. HIS HONOUR: They do. CROWN PROSECUTOR: In relation to count 7, has to be satisfied he knew it was there. HIS HONOUR: No. Do Young Lee [ie Jason Lee] has to possess it. CROWN PROSECUTOR: Certainly that Do Young has to possess it. But for Count 7 they don't have to be satisfied that Seong - HIS HONOUR: No." (emphasis added) 287Mr Sutherland SC then stated that "at this stage of the trial we have got some question mark about what the Crown case is" and the following exchange took place: "HIS HONOUR: The Crown case wasn't opened on joint possession, it was opened on the basis that each individual had possession. And if I can continue, it's on that basis that I have assumed the indictment was so framed, so the jury could find on the indictment that Jason Lee was guilty of count 1, also find that Seong Lee was not guilty. Then the jury would go through the process of determining the alternative count, and that's the way in which I understood the case was brought. If you are talking about joint possession, that means the jury have to find they both possessed, which causes a problem in relation to the alternative count. I have worked on the assumption that the Crown case is that they each possessed the drug, not jointly, but they each possessed the drug, and that makes the indictment workable. ... HIS HONOUR: It wasn't opened on the basis they jointly possessed. It was opened on the basis each person possessed, having regard to certain inferences the jury can draw on the evidence. SUTHERLAND: Which is why I shifted to say to the jury what fell from your Honour. I don't really want to enter the debate any further at this stage. HIS HONOUR: That's the way in which I approach it. CROWN PROSECUTOR: I don't wish to get involved in an argument as to the precise meaning of 'joint'. The way that your Honour has put it is the way I put it to your Honour and to the jury. HIS HONOUR: That's right, and that's the way in which I proceeded. The words 'joint possession', the words 'drugs, firearms' are not mentioned and I proceeded on that basis. " CROWN PROSECUTOR: It may be a more semantic, from what I understand, it's a semantic difference, whether it has substance - HIS HONOUR: ... [I]t's only a semantic difference, I am not going to use the word 'joint'." 288After this exchange concluded Mr Sutherland SC then addressed the jury on count 6 and in particular whether the Crown had demonstrated "beyond reasonable doubt that [Mr Jason Lee] was in possession of what was outside that bathroom [ie in the laundry]". 289The exchanges that I have extracted above reveal that the trial judge was troubled by the interaction between counts 6 and 7. In particular his Honour appreciated that a Crown case on count 6 which (only) alleged joint possession "causes a problem in relation to the alternative count [7]", namely that identified in [284] above. Although the Crown Prosecutor commenced the exchange by stating that the Crown case was a case of joint possession, implicit in his explanation of count 7 to the trial judge was that there was an alternative basis for count 6 at least as against Mr Jason Lee, namely one which contemplated him and not Mr Seong Won Lee being in possession. This would enable count 7 to then arise against Mr Seong Won Lee. It is regrettable that this was not put to the judge in clearer terms. 290The trial judge stated that he would not allow a Crown case of joint possession to go forward but instead would only allow a case of individual possession, although his Honour accepted that it might be a "semantic difference". As I have explained it was not possible for both Mr Jason Lee and Mr Seong Won Lee to be in possession of the same item unless they were jointly in possession. However only Mr Jason Lee was found guilty of count 6 and ultimately the question of the sustainability of that verdict is not whether there was any confusion or uncertainty in the trial judge's mind but instead whether there was any relevant error in the instructions given to the jury so far as he was concerned. 291I have described the structure of the summing up in [274] when dealing with ground 4 of Mr Jason Lee's appeal. In directing the jury in relation to count 6 the trial judge stated: "Dealing with the first matter regarding possession. The Crown must prove that each accused intentionally had the substance in his physical custody or control to the exclusion of others, except anyone who was acting jointly with him in committing the alleged offence. The alleged offence is the supply of the drugs contained in count six. The Crown must prove the accused intentionally had the substance in some place [to] which either he alone or together with some other person acting jointly with him in committing the offence had access and might go to get physical custody or control of the substance. So the Crown must negate possession on the part of any other person. Where there is a possibility that a person or persons other than the accused had possession of the drugs in question, other than those jointly acting with the accused, the Crown must prove that the accused had possession to the exclusion of that other person or persons. To put it another way, the Crown must rule out the possibility that the prohibited drug was in the possession of a person, not being either of the accused, and who had access to the apartment. Now I remind you of the following evidence regarding access to the apartment[.]" (emphasis added) 292Later in addressing count 7 the trial judge told the jury: "Now in order to place this alternative count into context I remind you that Mr Crown, in his opening address to you, submitted that if you are not satisfied that Seong Won Lee possessed the prohibited drug contained in the laundry, but were satisfied beyond a reasonable doubt that Jason Lee possessed the drug, then the Crown had an alternative position regarding Seong Won Lee." 293Subject to one matter addressed below at [298] concerning the emphasised portion of [291], the instructions his Honour gave to the jury in relation to count 6 properly reflected the Crown case and conveyed the essential aspects of possession. The form of the direction emphasised the need for exclusivity on the part of each accused except for those who were "acting jointly with [each accused] in committing the offence". This encompassed each accused if they were in joint possession, a scenario the jury rejected. Otherwise the direction enabled the jury to find either accused in possession. As I have explained, at least so far as Mr Jason Lee was concerned that was consistent with the Crown case from its opening. There is room for argument about whether a case of sole possession by Mr Seong Won Lee or possession with others was contemplated by the Crown case on count 6 but in light of his acquittal on that charge it is unnecessary to consider this further. 294Mr Jason Lee's principal complaint on this count is that the trial judge directed the jury on a basis that was wider than the Crown case as opened and closed in that the direction included a case of possession by Mr Jason Lee alone or by him and persons acting jointly with him whereas the Crown's case was only one of joint possession with Mr Seong Won Lee. It follows from the above that I reject the premise of that complaint. The Crown case on count 6 was not confined to only alleging joint possession on the part of Mr Jason Lee. Further there was no denial of procedural fairness to Mr Jason Lee in putting the case to the jury in the terms the trial judge did. It is the case that, during the exchange noted in [286] above, Senior Counsel for Mr Jason Lee stated that he had understood the Crown case on count 6 as only being a case of joint possession. However after that exchange he was at least aware that a case of individual possession was put by the Crown. He addressed the jury on that basis. 295It was also submitted that that part of the direction in [291] which allowed for a finding of guilt on Mr Jason Lee's part if the jury were satisfied that "either he alone or together with some other person acting jointly with him in committing the offence had access and might go to get physical custody or control of the substance" was erroneous. In particular it was submitted that there was no evidence of a joint criminal enterprise between Mr Jason Lee and some other person but instead the Crown case was that Mr Jason Lee and Mr Seong Won Lee were in joint possession of the items in the laundry. 296This submission is alluding to a distinction between a case in which two or more persons are both guilty of supply based on them jointly possessing the same drugs and a case in which two or more persons are guilty of supply because one of them possesses the drug and the other assists or facilitates their possession. However, in this context the reference to someone who was "acting jointly with him in committing the offence" in the directions for count 6 set out above was only a reference to joint possession. 297The trial judge told the jury that for each accused to be guilty of supply they each had to have custody or control exclusive of others "except [anyone who was] acting jointly with him in committing the alleged offence". Thus that exception could only be invoked if that other person also had some form of custody and control over the drugs that could not be excluded by the relevant accused and if he or she was acting jointly with the accused. In that event that other person would be a joint possessor. Hence the trial judge left count 6 to the jury in terms of either sole possession by Mr Jason Lee or joint possession with Mr Seong Won Lee (or others). As I have explained that was consistent with how the Crown conducted the case. 298A related submission made on behalf of Mr Jason Lee in respect of this ground of appeal concerned the emphasised part of the direction in [291], namely the statement that "the Crown must rule out the possibility that the prohibited drug was in the possession of a person, not being either of the accused, and who had access to the apartment" (emphasis added). It was submitted on his behalf that: "... in order for [Jason Lee] to be convicted of this offence [count 6], and Seong Lee to be acquitted of this offence, the Crown had to eliminate the possibility that Seong Lee (or other persons who may have had access to the laundry) was not individually or with others collectively in possession of the substance, to the exclusion of [Jason Lee]. The jury were not directed to this effect." (emphasis added) 299This submission overlooks the directions that preceded the emphasised part of the direction in [291]. They made it clear that the jury had to be satisfied that an individual accused had to have physical custody or control to the exclusion of others, except anyone who was acting with him in committing the offence. This meant that before the jury could convict Mr Jason Lee of this offence they had to be satisfied beyond reasonable doubt that he could not be excluded from custody or control of the drugs in the laundry. The jury were clearly so satisfied. 300Further the reference to the "exclusion of others" in the directions given to the jury clearly embraced the other accused. Thus the jury were told that the Crown had to prove that "each accused intentionally had the substance in his physical custody or control to the exclusion of others, except anyone who was acting jointly with him in committing the alleged offence" (emphasis added) and that the Crown had to prove that "the accused intentionally had the substance in some place [to] which either he alone or together with some other person acting jointly with him in committing the offence had access" (emphasis added) etc and might go to get physical custody or control of the substance. Given those directions it follows that the jury were clearly satisfied that Mr Jason Lee had physical custody or control of the drugs in the laundry to the exclusion of Mr Seong Won Lee. 301It was also submitted that there was no evidence upon which Mr Jason Lee could be convicted of being in individual possession of the items in the laundry as at 7 December 2009. This contention is addressed in that part of Basten JA's judgment which addressed ground 3 of Mr Jason Lee's appeal. His submissions on ground 5 also repeated the complaint that the trial judge's directions did not advert to the critical time at which possession had to be proved namely 7 December 2009. I have already addressed that when dealing with ground 4 of his appeal. It has no substance. As I have stated, after the jury retired to consider its verdict it sought clarification of counts 6 and 7. In responding the trial judge specifically reminded the jury of the need to be satisfied that Mr Jason Lee "supplied or possessed the prohibited drug in the laundry as at 7 December [2009]". 302I would grant leave, but reject ground 5 of Mr Jason Lee's appeal.

[42]

Ground 3 of Mr Seong Won Lee's appeal : unreasonable verdict on counts 1, 2, 3 and 4 304Ground 3 of Mr Seong Won Lee's appeal contends that his conviction on each of counts 1 to 4 "should be set aside on the ground that [they are] unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act 1912, s 6(1)). The principles governing the Court's consideration of such a challenge are summarised in the judgment of Basten JA, which I adopt. 305I will briefly summarise the evidence relevant to these counts. The police arrived at the unit to conduct their search at 2.30pm on 7 December 2009. The unit was locked and there was no-one home. With the services of a locksmith they entered the unit. The unit consists of two bedrooms. The so-called "main" bedroom of the unit was locked. The police search of the property took place over four to five hours and was recorded on video. 306The four items the subject of counts 1 to 4, namely a submachine gun, a silencer, two firearm magazines and a "brass catcher", were all found in a blue "Swarovski" box. This box was located in the laundry cupboard. Also found in the Swarovski box was a mobile phone contract in Mr Seong Won Lee's name, a sex toy, a cigarette butt, an envelope that was between the lid of the box and the submachine gun and two blank A4 pages. One of the Detectives agreed that if the papers were placed on top of the weapons in the box the weapons could not be seen. 307The weapons the subject of these counts were tested for DNA and fingerprints but neither was found. The Swarovski box and the phone contract were not tested for DNA but were tested for fingerprints. No finger prints were found on either. The envelope was not tested for DNA but was tested for fingerprints. Two identifiable prints were found neither of which belong to Mr Seong Won Lee. The blank A4 pages were not tested for DNA. 308DNA testing of the cigarette butt revealed a profile originating from an unknown female. DNA testing of the sex toy revealed the presence of a mixture of DNA in respect of which there were at least three contributors, two male individuals and one female. Testing using the Y-filer profile identified Mr Seong Won Lee as the major contributor of the male DNA found on the sex toy. Y-filer testing targets the Y chromosome as passed from father to son. All relatives of the male relative cannot be excluded from having the same Y chromosome. 309Also seized from the laundry were two sealed boxes each containing three cartons of "Q-Up" white powder, as well as a green "Q-Up" carton containing white powder. Neither Mr Seong Won Lee's fingerprints nor DNA was found on these items. 310At some point during the execution of the search warrant Mr Seong Won Lee arrived at the unit. He told the police that he lived in the unit with his girlfriend. Mr Seong Won Lee stated that the smaller of the two bedrooms was his. He was placed under arrest. 311It was an agreed fact that the owner of the unit was J & Lee Property Investment Group Pty Ltd. A certificate of title in that company's name was found in the cupboard in the main bedroom, bearing the date 14 October 2010. Mr Seong Won Lee was appointed a director of that company on 9 April 2008 and was still a director as at October 2010. He was appointed as the company secretary and remained in that position until at least 14 October 2010. 312Count 1 charged Mr Seong Won Lee (and Mr Jason Lee) with possession of a prohibited firearm without a licence or permit contrary to s 7(1) of the Firearms Act 1996. There was no dispute that the submachine gun found in the laundry was a prohibited firearm and that Mr Seong Won Lee was not authorised by a licence or permit to possess it. The relevant definition of "possession" was found in s 4A which provided: "4A Meaning of "possession" of a firearm - proof of possession (1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that: (a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or (b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or (c) on the evidence before it, the person was not in possession of the firearm. (2) In this section, premises means any place, vehicle, vessel or aircraft." 313Given that Mr Seong Won Lee admitted that he resided in and occupied the unit, it followed that the only real issue on count 1 was whether he discharged the onus of proof placed on him by demonstrating that, on the balance of possibilities, he did not know and could not reasonably have been expected to have known of the presence of a submachine gun in the box in the laundry of the unit. 314Counts 2, 3 and 4 charged Mr Seong Won Lee with possession of the other three items, contrary to s 7(1) of the Weapons Prohibition Act 1988. Again the only relevant issue on these charges was whether the Crown could prove beyond reasonable doubt that he possessed the items. Section 4 of the Weapons Prohibition Act referred to "possession" in divergent terms, namely: "possession of a prohibited weapon includes any case in which a person knowingly: (a) has custody of the weapon, or (b) has the weapon in the custody of another person, or (c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person." 315The trial judge directed the jury in terms consistent with this definition and that it was "necessary that the accused intentionally had control over the weapon". Presumably this latter direction was given to encompass that part of the expanded definition that requires that it be shown that the possessor "has custody" or "has" the weapon. 316The Crown case on all these counts was strong. The weapons were found in a box in the laundry cupboard of a small unit where Mr Seong Won Lee resided. As the Crown noted it would be expected that a resident would access such a cupboard if "for no other reason [than] to do his washing". The box also contained a contract in his name and another item which produced a Y-filer profile matching his DNA profile. As submitted by the Crown, the jury was entitled to consider the improbability that some other person would have placed weapons in the common area of the apartment he resided in, as well as located personal documents and items belonging to him and put them in the same box as the weapons. The police also found in a bag in the laundry cupboard a gun-cleaning kit. If someone had planted the guns and the cleaning kit in the laundry without the knowledge of Mr Seong Won Lee then they would most likely have put them in the one container to lessen the likelihood that he would detect their presence. 317Three matters were pointed to on behalf of Mr Seong Won Lee as raising a doubt as to his guilt. 318First, he pointed to evidence indicating that other persons had access to the apartment. He referred to there being a mattress on the floor, the location of temporary bedding and the presence of a pair of shoes sighted on a shoe rack. He also referred to the contents of the locked main bedroom which included nine toothbrushes in the bathroom cupboard in the ensuite. Further, he pointed to the presence of women's clothing and a woman's handbag in the wardrobe of the locked bedroom. 319Secondly, Mr Seong Won Lee relied upon the fingerprint and DNA testing of various items. It was said that this raised the possibility of other people having access to the laundry area where the guns were found. In particular, he referred to the fingerprints found on the envelope in the Swarovksi box and the presence of someone else's DNA on the cigarette butt and sex toy. 320Third, Mr Seong Won Lee submitted that there was evidence that someone else had, at some point, possessed the Swarovski box. A "Swarovski crystal panther" and foam that may have been used to pack it were located in the locked main bedroom. The Crown relied on the link between the Swarovski box found in the laundry and the Swarovski crystal panther found in the bedroom in its case against Mr Jason Lee to demonstrate that Mr Jason Lee possessed the weapons found in the laundry (although he was acquitted of that count). 321The submissions of Mr Seong Won Lee did not develop how these matters were said to rebut the Crown case. In any event with count 1 none of these points carry much weight. As I have explained, the onus was on Mr Seong Won Lee to prove on the balance of probabilities that he did not know and could not reasonably have been expected to know of the presence of a sub-machine gun in his own laundry. Even if it was accepted that the evidence established that other people had access to the unit including the laundry that does not establish a lack of actual or imputed knowledge on Mr Seong Won Lee's part unless it suggests that they planted a sub-machine gun without his knowledge and in circumstances where he could not have reasonably been expected to know that they had done so. The material pointed to on his behalf does not come even close to establishing that contention. Mr Seong Won Lee did not discharge the onus that was placed on him. 322In relation to counts 2, 3 and 4 the starting point is that Mr Seong Won Lee resided in a unit which was not large, the firearms were easily located in a cardboard box in the laundry of that unit and the box containing the firearms also contained a contract bearing his name and a sex toy with his Y-filer DNA. These matters point strongly to the Crown demonstrating that he had knowledge of and control over the weapons. At its highest the material pointed to on behalf of Mr Seong Won Lee only suggested that other people may have accessed the unit including the laundry and at some point handled the envelope found with the box and possibly the box itself. These matters would only undermine the otherwise inescapable inference that Mr Seong Won Lee "knowingly" had the items in the laundry if they were capable of raising a reasonable possibility that the items were planted there without his knowledge or that control over the weapons was exercised by others. In my view they do not raise either possibility. 323I am not satisfied that a reasonable doubt should be held as to the guilt of Mr Seong Won Lee on counts to 1 to 4. 324I reject ground 3 of Mr Seong Won Lee's appeal.