Mac v R

Separate trials 17The first ground asserts that her Honour erred in refusing to order separate trials of each of the counts. The second, alternative, ground complains of her refusal to order the trial of the first count separately from the other three counts. These grounds can be dealt with together. 18In fact, the application before the trial judge was that each of counts 1 and 2 be tried alone, with counts 3 and 4 being tried together. Her Honour rejected the application, giving reasons published as a separate judgment. 19In this court the Crown prosecutor took no point about the fact that the grounds of appeal do not reflect the application that had been made at the trial. It is, of course, appropriate to consider her Honour's reasons for refusing the application but, strictly speaking, the grounds do not address the question which falls for this court's consideration. What we must decide is whether, in the light of the conduct of the trial and the issues ventilated, the joint trial of the counts occasioned a miscarriage of justice. However, no point was taken about the terms of the grounds on that basis either, and I am content to consider the question of miscarriage on the basis of the submissions, written and oral, in the appeal. 20The trial judge considered the application in the light of the relevant provisions of the Criminal Procedure Act 1986. Section 29(1)(c) permits the joint trial of two or more counts where the alleged offences "form or are part of a series of offences of the same or a similar character." However, by s 21(2)(a), a trial court may order a separate trial of any count or counts in an indictment if "an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment ... ." 21The Crown prosecutor at the trial argued for a joint trial of the counts on the basis that the evidence in relation to each count was admissible in relation to the others, although he did not rely upon it as tendency evidence. Her Honour noted that "the essence of the Crown's submission" was that "the whole of the evidence is admissible to show the true nature of the business it alleges the accused was conducting, being a business involving sourcing drugs, including importing drugs, and selling drugs." 22Her Honour referred to the principles enunciated by the High Court in Harriman v The Queen (1989) 167 CLR 590, considered by this court in R v Quach [2002] NSWCCA 519, 137 A Crim R 345. She accepted the Crown prosecutor's submission, saying that she was "persuaded that the evidence the Crown intends to tender in respect of each count has high probative value in respect of the other counts in the way the Crown has outlined, ... , which high probative value well outweighs any prejudicial effect it may have on the accused." She added that directions to the jury as to the purpose of the evidence should prevent any prejudice or improper use of it. 23Her Honour noted a submission by defence counsel that, if the counts were heard together, there was a risk that the appellant's defence in relation to one count may prejudice him in relation to the others. She found that risk difficult to assess, as counsel had not elaborated on what those defences would be. In this court the defences raised were the centrepiece of the argument on behalf of the appellant. 24Neither counsel for the appellant nor for the Crown in this court had appeared at the trial. Counsel for the appellant, Mr Brassil, argued that the evidence in respect of each count did not have the probative value in respect of the others for which the Crown contended, and that the joint trial of the counts was gravely prejudicial to the appellant. He referred to the different defences raised to each of the counts, which I have set out above. These emerged from the evidence of the appellant, which was supported in part by the evidence of his ex-partner, Ms Le. Mr Brassil submitted that the joint trial would have "left the jury with a great deal of scepticism" about each of those defences. 25His fallback position, expressed in ground 2, was that, while the money laundering and drug supply counts might have been linked in such a way as to warrant their trial together, the importation count should have been tried separately. He argued that evidence of the appellant's involvement in the supply of drugs did not have the requisite probative force in respect of the allegation of importation, just as evidence of his involvement in the importation did not have that probative force in respect of the allegation of his being a supplier. The broad assertion by the Crown that the four counts demonstrated the appellant's involvement in a drug supply business, he submitted, was not justified by the evidence. 26Mr Brassil also submitted that to allow the evidence of the counts to be used in that way was effectively to introduce tendency evidence, even though the Crown had not presented it as such. That being so, he argued, it should have been submitted to the test of significant probative value under s 97 of the Evidence Act 1995 and to the assessment of its probative value against its prejudicial effect required by s 101(2). That was not done and, his argument continued, the evidence may well have been found to be inadmissible if it had been. 27The foundation of the joint trial of the counts was the cross-admissibility of the evidence of one in proof of the others. In Sutton v The Queen (1983-4) 152 CLR 528, a case concerned with multiple counts of sexual assault, Brennan J said (at 542-3): "Usually, there is no risk of impermissible prejudice arising from the conduct of a single trial upon an indictment containing more than one count where the evidence relating to the accused's implication in an offence charged in one count is admissible in proof of his guilt of the offence or offences charged in the other count or counts. The admissibility of the evidence relating to one count upon a trial for another count is thus a question of importance affecting both the exercise of the discretion ... and, in the event of a trial on multiple counts, on the direction given to the jury relating to the way in which they may use the evidence tendered in proof of each count at the trial." 28Of course, evidence relating to two or more counts may be cross-admissible on a basis other than tendency or coincidence. It is on this issue that the cases of Harriman and Quach are important. Neither case was concerned with the joint trial of counts, but each of them raised the question whether evidence of wrongdoing on the part of an accused other than that charged was admissible. Harriman involved a charge of being knowingly concerned in the importation of heroin, while Quach was concerned with a charge of supplying heroin. In each case the accused was alleged to have committed the offence with an accomplice, and in each evidence of their prior dealing with heroin was held to be admissible to provide context to the conduct giving rise to the offence charged, so as to demonstrate its criminality. 29It is sufficient to refer to some passages from the judgment of Spigelman CJ in Quach. In that case the evidence had not been relied upon as tendency evidence, and the Chief Justice had occasion to consider whether the admissibility of the evidence in Harriman involved tendency reasoning. His Honour concluded that it did not. 30At [23] -[25] (351-2), his Honour said: "[23] In Harriman the accused and his co-offender, Martin, had travelled to Thailand together. The co-offender had then travelled abroad and posted heroin to various addresses in Australia. Evidence was admitted of prior involvement between Harriman and Martin in the sale of heroin. [24] ... The reasoning in Harriman is consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning. In Harriman, it was admitted that there was in fact a meeting between Harriman and his co-offender Martin and the issue was to determine the events that occurred at that meeting. The same is true in this case, albeit the fact of the meeting is not admitted. [25] Brennan J identified the principle he would apply at 594 in a way which clearly distinguished between tendency reasoning and other uses: 'However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible. I would therefore respectfully agree with McHugh J that evidence of events which are part of the res gestae is admissible - and will usually be admitted - even if that evidence reveals the commission of an offence other than the offence charged.' [Emphasis added] [26] With respect to the particular aspects of drug dealing in issue in the proceedings, his Honour concluded at 595-6: 'Evidence of prior involvement by Harriman and Martin in the sale of heroin in association, evidence (from the witness Lisk) of prior sales of heroin by Harriman and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more than the commission of prior offences was thereby revealed. In my opinion, more was revealed. The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organization, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply. A person who is shown to have participated to a substantial degree in that trade - I am not speaking of mere use or of an isolated sale - is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case. In this case, the extent of Harriman's participation was such that, in the absence of anything to suggest that the participation by Harriman and Martin in the sale of heroin in Western Australia had been discontinued, the guilty inference might properly have been drawn. Evidence of Harriman's participation in the heroin trade not only strengthened the Crown's allegation of motive; it tended to make it more likely that Harriman's relevant contacts with Martin - providing Martin with his (Harriman's) address in Bangkok and arranging to meet there, the visit to Chiang Mai, the furnishing of addresses in Western Australia - were for a guilty rather than an innocent purpose: see Plomp v The Queen (1963) 110 CLR 234. That evidence was highly probative of the offences charged. It was admissible, whether or not Harriman had raised in cross-examination the 'defence' that Martin was acting alone. There was no ground for excluding it in the exercise of a discretion.' [Emphasis added]" 31The Chief Justice went on to consider the judgments of the other members of the court in Harriman, finding their approach to be consistent with that of Brennan J. Turning to the facts of Quach itself, his Honour concluded that the evidence of prior dealings between the appellant and the accomplice was relevant to show that their contact on the occasion in question was, to adopt the phrase of Brennan J, "for a guilty rather than an innocent purpose": [28]. That approach is pertinent to the present case. At [44] (355-6), his Honour referred with approval to a passage, also pertinent to the present case, in a South Australian decision which did involve cross-admissibility of evidence between counts in an indictment: "[44] A similar issue arose in the Full Court of the Supreme Court of South Australia in R v Ngo and Le [2002] SASC 373. In that case also there were a number of intercepted telephone calls in which a rudimentary code was used. It was submitted that evidence of the conversations which was relevant to the earlier counts could only have relevance to the later counts as propensity evidence. Besanko J, with whom Doyle CJ and Wicks J agreed, rejected this submission at [53]: 'In my opinion, there was a basis for the admission of the evidence other than a propensity basis. The prosecution was entitled to put forward evidence which as a whole showed the operation of a well organised and substantial business of buying and selling heroin. The jury was entitled to use the evidence of the telephone calls between April and August 1998 in assisting it in determining who was in possession of the heroin in the main bedroom and laundry of the house at 55 Addison Road on 17 August 1998 and in the various places at 39 Addison Road. Equally, the jury was entitled to use the evidence of the telephone calls as assisting it in determining who was in possession of the heroin at 55 Addison Road on 15 November 1997. Such a use of the evidence does not involve the jury reasoning on a propensity basis. The evidence, together with the evidence of the financial position of the appellants, was capable of establishing the fact that as at the time of the first recorded telephone call in April 1998 and for some time prior to that date there was a well-established and large-scale business in operation. In other words, the evidence was not put forward to support a conclusion that the appellant was a person likely from his criminal conduct or character to have committed the offences. (R v Nieterink [1999] SASC 560; (1999) 76 SASR 56.)'" 32The submissions of the Crown prosecutor in this court that the evidence relating to the four counts was cross-admissible are persuasive. In relation to count 1, the attempted importation of heroin, the critical issue was whether the appellant was proved to have known that the package contained heroin or was reckless as to that matter. The appellant's case was that he had no knowledge of its contents. The Crown had to rely upon circumstantial evidence to establish the contrary. Plainly enough, evidence relating to the other three counts to the effect that he had large quantities of drugs in his possession for sale, together with a large sum of cash and various indicia of drug supply, was strongly probative on that question. It might be added that the quantities of heroin the subject of counts 1 and 3 were both found to be of South-East Asian origin, with similar purity levels. 33Equally, the evidence relating to counts 1, 3 and 4, pointing to the appellant's involvement in the importation and supply of illicit drugs, was relevant and probative in respect of count 2, the money laundering count. Particularly was this so given the appellant's defence that it was the proceeds of gambling. Similarly, the evidence relating to counts 1 and 2 was important in considering the issue raised by counts 3 and 4, the supply of the heroin and methylamphetamine. Those counts relied upon the deeming provision to be found in s 29 of the Drug Misuse and Trafficking Act, and the appellant bore the burden of proving that he possessed them otherwise than for supply. His case, as I have said, was that he was minding them for another person (albeit with that person's permission to use some of them). 34The appellant has no legitimate complaint if the joint trial of the counts had indeed left the jury "with a great deal of scepticism" about his defence to each of them. A realistic assessment of each defence would not have been possible without the evidence relating to the other counts. Justice would not have been done by separate trials of the counts, with each jury left to evaluate the defence case in ignorance of whole of the circumstances established by the evidence on the other counts. 35Her Honour rightly found that the probative value of the evidence of each count in proof of the others well outweighed its prejudicial effect, and there was no basis upon which the use of the evidence in that way might have been prevented by s 137 of the Evidence Act. 36In summing-up her Honour explained to the jury how the evidence could be used in the light of the Crown case that the appellant was conducting a business involving the importing and supplying of drugs, but warned against the impermissible use of it as mere propensity. When dealing with the use of evidence relating to counts 2, 3 and 4 in proof of count 1, she said: "... you cannot take the evidence in support of the other counts into account in the sense of thinking, 'If the accused committed those other offences, therefore he must have been the kind of person who commits offences, and therefore he must have committed this offence charged in count 1.'" Her Honour went on to explain that, in considering counts 2, 3 and 4, the jury could similarly take into account all the evidence in respect of the other counts, but added: "But you cannot at any stage rely on the evidence relating to other counts to reason in the way that I have just said. You cannot reason, 'The accused must be a person who commits offences or a person who commits drug related offences and therefore he must have committed this offence we are considering now.'" No objection was, or could have been, taken to those directions. 37I am satisfied that no miscarriage of justice was occasioned by the joint trial of the four counts. Grounds 1 and 2 should be dismissed.

Defence case - counts 3 and 4 38Essentially, the appellant's answer to counts 3 and 4, the (deemed) supply of heroin and methylamphetamine, was a Carey defence: R v Carey (1990) 20 NSWLR 292, that is, that he was minding the drugs for Mr Dung and intended to return them to Mr Dung when he reclaimed them. However, as I have said, it was the appellant's case that Mr Dung had given him permission to use the drugs during that period. This ground complains of a passage in her Honour's summing-up. To evaluate the ground it is necessary to place that passage in its context in the summing-up and to refer to some earlier discussion between her Honour and counsel about the matter. 39In the course of discussion about directions before counsel addressed the jury, there was consideration of how the defence to counts 3 and 4 should be put. The position of defence counsel was that the jury should be told that if they rejected the appellant's account that he was minding the drugs for Dung, they should still consider whether they were for his personal use, rather than for supply. Counsel argued that, given the evidence of the extent of the appellant's use of the drugs, it would be open to the jury to find that the whole of each drug was for his personal use. The Crown prosecutor's position was that it had never been the appellant's case that he had all the drugs for his personal use. He submitted that the jury should be instructed that if they rejected the appellant's evidence that he was minding the drugs for Dung, they should find him guilty even if they accepted that he intended to use some of them. 40The matter was the subject of extensive discussion, and her Honour ruled upon it on the following day. She accepted the Crown's submission, deciding that she would direct the jury that, if they did not accept that the appellant was minding the drugs for Dung, then it had never been his case that the whole of the amount of those drugs was for his personal use, and that "therefore it would not be open to them to find he had discharged his onus on that basis alone." 41Her Honour directed the jury accordingly. She referred to the appellant's evidence that Dung had left him the heroin and methylamphetamine to mind "until he found a better flat on his own, and that with Dung's permission, he used some of the heroin and methylamphetamine for his own personal use." Her Honour continued: "In order for the accused to satisfy you that he had each of the drugs in his possession other than for supplying it, he would have to establish that on the balance of probabilities in relation to the whole of the quantity of the drugs in his possession, not just a part of the quantity of the drugs. If you were to not accept the accused's evidence that Dung gave him the drugs to mind, it has not been the accused's case that the whole of the quantity of each drug was for his personal use. So his case has been presented as having the two limbs, minding the drugs for Dung and using some for himself. It was not presented as two alternative explanations; they are interrelated in that way. In order to discharge his onus of proving that each of the drugs was in his possession other than for supply, on the basis of personal use only, the accused would have to establish, on the balance of probabilities, that the whole of the quantity of each drug was in his possession for personal use. But that has not been his case in this trial." It is that last paragraph which has been specified as the relevant misdirection in this ground of appeal. 42A little later her Honour added: "So, if you do not accept that the accused was minding the drugs for Dung, and you find that he was using part of the drugs only for his personal use, and not the whole of the drugs, which as I said, the evidence does not support, then you would have to find him guilty of counts 3 and 4. If you accept Mr Mac's dual explanation, that he was minding the drugs for Dung and using some for his personal use, on the balance of probabilities, then you would find him not guilty of counts 3 and 4." 43As I understand Mr Brassil's submission on this ground, it is that the italicised passage from the summing-up may have misled the jury to believe that to acquit the appellant of counts 3 and 4 they would have to be satisfied that he had the whole of the drugs for his own use. That being so, what her Honour said in that passage would have conveyed that the defence could not succeed and that conviction was inevitable. In effect, as I understand it, the argument was that the jury might have been diverted from consideration of the Carey defence. 44However, when the italicised passage is viewed in its context, that submission is untenable. Her Honour clearly conveyed to the jury the Carey defence and, equally clearly, the purpose of the directions about personal use were to explain to the jury what the position would be if they rejected that Carey defence. Presumably this is how defence counsel at the trial understood it because he made no complaint about those directions at the end of the summing-up. 45This ground is without substance and should also be dismissed.

Sentence 46The maximum sentences for the offences in the indictment are as follows: 1: Attempting to import heroin, 25 years imprisonment; 2: Dealing with the proceeds of crime, 20 years imprisonment; 3 & 4: Supply of the large commercial quantity of heroin and methylamphetamine, imprisonment for life with a standard non-parole period of 15 years. 47Her Honour sentenced the appellant as follows: Count 1 - imprisonment for 9 years, count 2 - imprisonment for 8 years, both to commence on 23 October 2011. In respect of those sentences she fixed a non-parole period of 5 years imprisonment. Count 3 - imprisonment for 8 years, comprising a non-parole period of 5 years and a balance of term of 3 years, commencing on 23 October 2014. Count 4 - imprisonment for 9 years, comprising a non-parole period of 5 years and a balance of term of 4 years, commencing on 23 October 2015. The sentences for counts 1 and 2 were backdated to allow for a discrete period of pre-trial custody. The aggregate sentence, as I have said, was imprisonment for 13 years with an effective non-parole period of 9 years. 48The challenge to the sentences is expressed briefly in Mr Brassil's written submissions. It is said that her Honour erred in her finding that no part of the money found in the appellant's safe was the proceeds of gambling, and in failing to take into account the time the appellant spent on bail subject to onerous conditions. It is also asserted that the aggregate sentence imposed is manifestly excessive. These submissions were not developed in writing. Nor were they in oral argument except to refer to submissions on sentence made to her Honour by counsel then appearing. 49What emerges from the transcript of those submissions is that, on questions of fact, her Honour rejected some of the arguments put on behalf of the appellant. Mr Brassil did not expose any error in the manner in which her Honour dealt with those matters. 50In particular, as to the money found in the safe, her Honour noted that the trial had not been conducted on the basis that some of the money was the proceeds of gambling and some of it was the proceeds of drug sales. She expressed herself to be satisfied that the jury's verdict "entailed a rejection" of the appellant's evidence that the money in the safe was the proceeds of gambling and "an acceptance of the Crown case, that it was the proceeds of drug sales." Given the issue at the trial about the source of the money, and having regard to the indicia of drug supply found at the home, her Honour expressed herself to be satisfied beyond reasonable doubt that the whole of the money was the proceeds of drug dealing. No error in that process of reasoning was identified. 51Her Honour did not refer at all to the appellant's conditions of bail, no doubt because the matter was not raised in submissions to her. I might add that, while there were a large number of bail conditions, including submission to electronic monitoring and restriction upon the appellant's movements, it is not apparent that they were so onerous as to have had any significant bearing on sentence. 52The assertion that the aggregate sentence is manifestly excessive was also not developed in argument, written or oral. Her Honour noted the appellant's generally favourable subjective case, being a mature man with no criminal history, the father of a number of children, and a person who had been involved in legitimate business enterprises and had commanded respect in his community. Nevertheless, her Honour rightly found the offences to have been serious and there is no basis upon which it could be said that the sentences, individually or in their cumulative effect, are excessive. 53I would refuse leave to appeal against sentence.

Orders 54Accordingly, I would propose that the appeal against conviction be dismissed and that leave to appeal against sentence be refused. 55RS HULME AJ: I agree with the orders proposed by Hidden J and with his Honour's reasons.

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