R v Jan Ha Le Trinh [1998] VSCA 137

Court of Appeal (Vic)|1998-12-17|Before: WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

The applicant has sought leave to appeal against both the conviction and the sentence. The grounds of appeal are confined but, before turning to them, it will be necessary to refer to the evidence upon which the conviction was recorded, and to the directions given by the trial judge.

The evidence put before the jury, as a consequence of sensible admissions made by trial counsel on behalf of the applicant, was commendably short. Inter alia, it comprised a large number of recorded telephone conversations between the applicant on the one hand and Ken Ha, Vann La and Le Duc on the other. These conversations were in a foreign language but English translations of them were, by consent, put before the jury. It was clear, and accepted, that the parties to the conversations adopted various "codes" for the purpose of concealing the subject matter of their discussion. There was also put before the jury in documentary form a large number of bank records revealing many transmissions of money between September and November 1995 made by or at the direction of the applicant to either Hong Kong or Bangkok. All the transactions were of amounts below $10,000 (in order to avoid legally imposed requirements to report details) but, in total, amounted to about $200,000. The Crown, by aligning the dates of the transmissions to recorded telephone conversations at or about those dates between the applicant and her brother Ken Ha, alleged that the transmissions were made at the direction of Ken Ha to enable him, inter alia, to finance the purchase of the heroin. The transmissions of money were made in false names. Many were transacted at "the Melbourne end" by one Sarah Wong, a prosecution witness, at the applicant's direction.

Le Duc, who had pleaded guilty and been dealt with for his part in the importation, also gave evidence for the prosecution. His evidence, which was largely uncontested, demonstrated that he had come from France to Australia on two occasions in 1995. He was, and had for some years been, employed as a waiter in a Marseilles restaurant operated by Vann La. Le Duc said that he had first come to Australia in May 1995 on instructions from Vann La for the purpose of receiving and selling heroin. On that occasion he was accompanied by Vann La who arranged rented accommodation for him at 83 Springvale Road. He was given the keys to these premises and a mobile phone. Although the proposed consignment of heroin did not, on that occasion, arrive he had, in accordance with instructions from Vann La, received a quantity of heroin from an unidentified Asian man at the Casino, took it back to the premises at Springvale Road and concealed it under the floor. From time to time he was instructed to package various quantities of the heroin and take them to designated locations where he would deliver it to nominated "customers". He would then collect the purchase monies and give them to Vann La. When Vann La returned to France in or about July 1995 Le Duc was instructed to pass further monies to the applicant. It was not contended by the Crown that, at that stage, the applicant was aware of the provenance of the money. Thereafter le Duc kept in contact with the applicant using the code name "Peter". In the following weeks he had received and transmitted to the applicant something in excess of $70,000. He remained in Melbourne until August 1995 and, before he left, he gave the applicant the keys to the Springvale premises and the mobile phone with which he had been provided. When he returned to Marseilles in August 1995, he was told by Vann La that he was to return to Melbourne in the following month and that he was to wait there for a consignment of heroin. He left France in mid-September and flew to Australia via Bangkok where he was met by Ken Ha. He arrived in Melbourne on 28 September 1995 and booked into an hotel. He quickly ran out of funds and rang Vann La in France. In accordance with his directions, he contacted the applicant and arranged to meet her. She gave him money, the keys to the Springvale premises and the mobile phone. Thereafter he called the applicant on a regular basis to get his "wages" which were paid to him at the rate of $300 per week. He said that the weeks passed without him being required to do anything and he became concerned that his return ticket to France was about to expire. He said that he was told to stay and the applicant would make arrangements to extend his return ticket. On or about 19 November 1995 Vann La rang him to say that he should prepare himself for the arrival of the heroin in the following week. Some time later the applicant rang him and directed him to go to a named restaurant that night to meet a person whose name he could not recall. He went to the meeting place but, because he could speak no English, was unable to transact any business with the designated person. The following day the applicant rang him and directed him to go to the same place to meet the same person. He did as he was told and he was given a bag which contained $132,000. He took that money to the applicant. At a later time he was instructed to meet the same man. He did so and received another $20,000 which he gave to the applicant.

It was these monies which the Crown alleged were being transmitted by the applicant to Ken Ha in Bangkok and Hong Kong, and were used to facilitate the purchase of the heroin.

On 3 December 1995 Le Duc said that he was told by Vann La that the "boss" was about to send five "complet vest", which he said meant 10 packets of heroin. He said that "the boss" was the description used by him, Vann La and the applicant when referring to Ken Ha. On 5 December 1995, Vann La again rang to tell him to remain at the Springvale Road address because the arrival of the heroin was imminent. At 2 a.m. on 8 December 1995, Vann La rang to say that the package would arrive that day. In fact it arrived via the courier at about 11 a.m.

It was the Crown's allegation that the evidence demonstrated that all three family members - Vann La, Ken Ha and the applicant - were intimately involved in the importation. At the time of trial neither Ken Ha nor Vann La had been extradited, but the Crown alleged that Ken Ha's role was to arrange for the purchase and export of the heroin and that Vann La was to arrange for the recruitment of Le Duc and to be the conduit of information between Ken Ha and Le Duc. The use of Le Duc, the Crown alleged, was to "insulate" the family members against the risk of detection. The Crown further alleged that the applicant's role was to manage Le Duc whilst he was in Melbourne, to pay him his wages, to receive from him the funds which he collected and to transmit them when received in a clandestine fashion to Ken Ha in Bangkok and Hong Kong to enable him to finance the importation. The Crown alleged that her activities, and the secretive nature in which she engaged in them, amply demonstrated that she was "knowingly concerned" in the importation of the heroin. It was contended that the methods which she used to transmit funds were employed to avoid detection of her involvement; that is the use of other people to transact them; the provision of false names and details and the insistence of transmitting sums in amounts of less than $10,000 so as to avoid statutory obligations for report. The details of the false and deceptive transmissions and the fact that they were engineered by the applicant were the subject of admissions.

The Crown further contended that the transcribed telephone calls, the content of and parties to which were also admitted, inescapably pointed to the only inference being that the applicant was knowingly concerned in heroin importation by Ken Ha. It was alleged that the conversations, although heavily "coded", displayed the applicant's awareness of Le Duc's role and of the role which he had played on his previous visit to Melbourne. An analysis of the discussions, the Crown alleged, established that the intended importation had been delayed beyond the date upon which it had been first expected and that, in late November and early December 1995, the applicant was alert to the imminence of the importation and the need to quickly arrange for substantial further sums of money to facilitate it. The conversations also demonstrated, so the Crown alleged, that once the importation was imminent, the applicant was aware that she was to make no further contact with Le Duc.

The applicant gave evidence. She denied that she knew or believed that the activities in which she had engaged related to the purchase or importation of heroin. She conceded that she knew that she was engaged in illegal activities but said that those activities were related to "laundering" monies paid by persons who were involved in illegal gambling and prostitution rackets in which her brother and brother-in-law had an interest. She said that the extreme lengths to which she went to keep those activities secret, through coded conversations with her brother and transmitting monies to him in false names, were taken because she knew that "laundering" monies was illegal and she was concerned to ensure that bank records and intercepted telephone conversations could not be traced to her. It was always her understanding and belief, she said, that Le Duc was sent to Australia to facilitate the recovery and transmission of monies which were to be "laundered" to avoid exposure to the income tax authorities. In lengthy cross-examination, she was asked to explain many inconsistencies between her evidence and the contemporaneously recorded conversations.

The prosecution contended that her stated knowledge or belief that she was involved in a "money laundering venture" was a deliberate lie which was told to avoid implicating her in the crime with which she was charged, and that if the jury so found, it was evidence which they could use as demonstrating a consciousness of her guilt. Accordingly, at the conclusion of counsels' addresses, and shortly after the judge had embarked upon his directions to the jury, he enlisted counsels' assistance in formulating with precision the nature of the lies which the prosecution was asserting. Following discussion the alleged lie was formulated in the following form:

"All of my dealings with my brother, brother-in-law and Le Duc upon which the Crown relies, were done in relation to money laundering which had nothing to do with drug dealing and were not done in relation to drug importation."

In the course of the directions which he gave, his Honour told the jury in unexceptionable terms that the Crown bore the burden of establishing beyond reasonable doubt that the applicant was knowingly concerned in the importation and that she bore no burden of establishing her innocence. His Honour further directed the jury that, in this case, they could not convict the applicant unless they were satisfied beyond reasonable doubt that the applicant's account was untrue. He instructed the jury, again in terms to which no exception was taken, of what it was that they had to be satisfied before they could conclude that the applicant was knowingly concerned in the importation. His Honour further told the jury that even if they were satisfied that the applicant had, during her evidence, told the lie which the Crown asserted, that would not, of itself, establish guilt. He said:

"There are a whole variety of reasons as to why people may tell lies ... so the mere fact that an accused person tells a lie or lies does not necessarily lead to the conclusion that they are guilty. The Crown must still prove its case beyond reasonable doubt."

His Honour then instructed the jury that the Crown sought to prove the applicant's requisite knowledge from facts, established by the evidence, from which they could draw an inference beyond reasonable doubt. He further directed them that:

"If there is any reasonable explanation for the facts which is consistent with innocence, you must find the accused not guilty."

It was in this context that his Honour turned to the lie which the Crown was contending that the applicant had told during her evidence. He said:

"If you conclude that she did lie, you may use such a finding in different ways, depending upon the nature of the lie. Any lie at all may be used by you in assessing the credibility of the witness, whether it be the accused or anybody else. However, some lies can be used for a more significant purpose. I will deal with that more significant purpose in a few minutes but let me, firstly, deal with lies as they may affect the credit, or credibility of a witness."

His Honour then instructed the jury that the mere fact that a witness had told a lie in respect of a particular matter did not necessarily mean that what he or she said about other matters was not reliable because, inter alia, persons may tell lies for a wide variety of motives including the motive of protecting other people. He told the jury that it was for them to determine whether the applicant had lied and, if they found that she had, what the significance of the lie was. He then continued:

"In limited circumstances, the telling of a lie may be conduct which is inconsistent with innocence and amounts therefore to an implied admission of guilt. In that way the telling of the lie may itself constitute evidence and not merely be a factor affecting the credibility of the person. The critical difference between lies generally which merely affect credit and lies which amount to an implied admission is that the latter lies are told from a consciousness of guilt. It is because they are told from a consciousness of guilt that they constitute implied admissions. It is important that the particular lie ... which the Crown asserts to be a lie be identified with some precision. In this case ... the Crown submits that the accused person told a lie by saying, in substance, this: `All of my dealings with my brother, with my brother-in-law and with Le Duc upon which the Crown relies were done in relation to money laundering, which had nothing to do with drug dealing and were not done in relation to any drug importation.' In order to constitute evidence of consciousness of guilt, a lie must have certain features. First, it must be deliberate; secondly it must be told for a particular reason and, thirdly it must relate to a material matter. ... it must have been told for a particular reason, namely because the accused person realized that if she told the truth, the truth would convict her ... . In other words, in telling the lie she must be acting as if she were guilty. ... If you find that the accused did tell a deliberate lie, but in your view in all the circumstances, the lie might have been told even though she is innocent, you could not use that lie as evidence of her guilt. The final requirement is the lie must relate to a material matter - that is, something connected with the actual commission of the offence, and not merely some collateral issue or peripheral circumstance. It is essential that the lie relate to a material matter, because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which she is charged. ... So you may take a lie into account as part of the evidence against an accused person only if you were satisfied that it was deliberate, that it related to a material matter, that the telling of the lie revealed a knowledge of the offence or some aspect of it, and that the accused knew the truth that the matter about which she lied would implicate her in the offence. The defence contention is, of course, that she has not lied at all, that all she has told you about money laundering is borne out by what you see in the transcripts of the intercepted tapes. ... It is essential that you remember that there may be reasons for the telling of the lie apart from the realization of guilt. As I have previously pointed out to you, a lie might be told for a variety of reasons. In particular, you realize, as I have said to you, that a lie may be told out of panic, or to escape an unjust assertion, or to protect some person ... . An accused person who has not in fact committed a crime of which he is suspected may think that some particular aspect of the circumstances looks very suspicious, and in an effort to defend himself may falsely deny that particular circumstance. ... Obviously if you conclude that the accused person told a deliberate lie about a material matter, you would go on to consider any explanation which might exist for any such lie. If in your view there was a reason or explanation for the lie other than a consciousness of guilt you could not regard it as an implied admission of guilt. ... Although, as I have explained to you, guilt must ultimately be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with all the other evidence, and for that purpose, does not have to be proved to any particular standard of proof. It may be considered with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. Ordinarily a lie will form only part of the whole body of evidence to be considered by the jury in reaching a conclusion as to whether the Crown have proved the guilt of a particular accused beyond reasonable doubt. However, I can't say whether this case is such a case or not, because it depends on your assessment of the evidence. ... If in your view a lie which is said to constitute the admission is the only evidence against the accused, or if it is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an implied admission must be proved beyond reasonable doubt before you may conclude that the accused is guilty. So, as I say, if you find that the accused has told a deliberate lie about a material matter because of a consciousness of guilt, and that is the only evidence of her guilt, you could not convict her unless you were satisfied beyond reasonable doubt that the lie was a deliberate lie told for that reason, and related to a material matter."

His Honour then concluded his charge by reminding the jury that it was for the Crown to satisfy them of the guilt of the applicant beyond reasonable doubt; that the applicant bore no onus of proving her innocence and that the Crown's case against the applicant in respect of the disputed element of knowledge was circumstantial. He again reminded the jury that they could only draw an inference that she possessed the relevant knowledge if they were satisfied to the requisite standard that the evidential basis for drawing such inference was established and that they could not draw such an inference if the evidence disclosed some other reasonable hypothesis for her conduct consistent with innocence.

No exception was taken by counsel for the applicant in respect of his Honour's directions to the jury about the use which they could make of the asserted lie, if they found it to be such.

Mr. Tehan Q.C., who appeared with Mr. Ginsbourg for the applicant argued, in effect, one ground in support of the applicant's appeal against conviction. It was ground 2 which had been added to the grounds of appeal by leave of the Registrar on 2 September 1998. That ground is in the following form:

"2. The learned judge erred in directing the jury that they could use statements made by the applicant on oath concerning her dealings with her brother, brother-in-law and with Le Duc as implied admissions."

Although ground 1 asserted that the verdict was unsafe or unsatisfactory, Mr. Tehan informed the Court that he had no arguments to address in respect of that ground other than those which were put in support of ground 2.

In support of ground 2 Mr. Tehan submitted that the directions which his Honour gave to the jury as to the use which they could make of the lie asserted by the Crown, and to which I have referred above, were in error and prejudicial to the applicant because they invited the jury to use evidence given by her at the trial and central to her defence of the charge alleged against her as evidence probative of the Crown case. He submitted that in this case, where the asserted lie was "the defence case", it was inappropriate and wrong to direct the jury that they could use such a lie as evidence of the applicant's guilt. It was Mr. Tehan's submission that if the jury were to find that the applicant had told lies in respect of matters central to her defence of the charge against her, they could only use them in assessing her credibility as a witness and could not use them as probative of her guilt. To invite the jury to use the applicant's evidence denying the charge brought against her as evidence demonstrating a consciousness of her guilt was, as Mr. Tehan contended, to invite them to engage in a process of circular reasoning which was not countenanced by authority (cf. R. v. Laz [1998] 1 V.R. 453 at 466).

Although Mr. Tehan was at first disposed to concede that the impugned directions were, in the form given, unexceptionable and that the error was to be found only in giving them at all, he later sought to argue that they were in law erroneous because, at one point, the judge had instructed the jury that, if they formed the view that the asserted lie was but one of a combination of facts from which they could draw an inference beyond reasonable doubt of the existence of the requisite knowledge, they need not be satisfied to any particular standard of the fact that the applicant had lied. For my own part, however, I have no doubt that Mr. Tehan's initial concession was correct and that the instructions which his Honour gave on this topic were, in the form given, appropriate and in accordance with authority. Depending upon the view which the jury took of it, a lie might be simply one of a number of facts from which the jury are prepared to draw the ultimate inference of guilt beyond reasonable doubt. If, however, it is the only evidence upon which the inference can be drawn, they must be satisfied of its existence beyond reasonable doubt (Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 at 210; R. v. Gionfriddo & Faure (1989) 50 A.Crim.R. 327 at 339 per Gray, J.) This is what his Honour told the jury.

As a general proposition it can be said that lies told by an accused person, whether in court or out of court, may be capable of demonstrating a consciousness of guilt on the part of the accused of the offence with which he or she is charged (R. v. Perera [1982] VicRp 91; [1982] V.R. 901 at 904-5, per Young, C.J.; Edwards v. R., supra at 208-9 per Deane, Dawson and Gaudron, JJ.). Whether a lie is capable of implicating the accused in the offence charged must, of course, depend upon the circumstances of the case and the nature and materiality of the lie asserted (R. v. Perera, supra, at 911 per Murray, J.). Of course it can be accepted that a simple denial by an accused of guilt of the offence charged can rarely, if ever, be used by the jury as a lie evidencing guilt because the lie could only be established by proof by the prosecution of the crime charged. This is the "bootstraps argument" referred to in R. v. Gionfriddo & Faure, supra at 333 per Crockett and O'Bryan, JJ.) and re-affirmed in R. v. Laz (supra at 466); (see also R. v. Zheng (1995) 93 A.Crim.R. 572). The proposition is aptly summed up by Sir Charles Lowe's aphorism in Edmunds v. Edmunds & Anor. [1935] VicLawRp 35; [1935] V.L.R. 177 at 186:

"[B]y no torturing of the statement `I did not do the act' can you extract the evidence `I did do the act'."

However this was not a case where it was being asserted that a simple denial by the applicant of the offence alleged against her could strengthen or add to the case made by the prosecution. It is true that the applicant, in her evidence, denied knowledge of the heroin importation. But she went further and positively asserted, for the first time, that her only knowledge and/or belief was that her dealings with Ken Ha, Vann La and Le Duc related to the laundering of money. In so doing she was introducing an explanation for her conduct, otherwise conceded to be illicit, which the Crown contended was a false explanation and could be demonstrated to be so by other established evidence in the case. The Crown contended that this was a deliberate concoction designed by her to put an innocent construction on events in circumstances where she knew that the truth would implicate her. It is not, I think, to the point to contend that it was her "whole defence", any more than it would be for an accused to contend that a false alibi is a "whole defence" to a crime alleged to have been committed by him at a particular time at a particular place (see R. v. Perera, supra, at 911). The question is whether, upon other established evidence, it is capable of being construed as a deliberate lie told with a particular motive. It was on this basis that the Crown contended to the jury that they could use the "transparent falsity" of the explanation as some evidence of her guilt. It was not suggested by defence counsel, an experienced criminal advocate, that it was not open to the Crown to use the evidence in that way. What it did, having regard to the probability that the jury would reason that way in any event, was to impose upon the trial judge the obligation of giving to them careful directions to ensure that they did not misuse it. As King, C.J. pointed out in R. v. Forrest (unreported, Court of Criminal Appeal (S.A.), 5 October 1988):

"Lies are indicative of guilt, of course, if they are motivated by a consciousness of guilt and consequent fear of the truth. ... It follows that if the nature of the lies or the circumstances in which they are told possess a tendency to indicate that the motivation for them was a consciousness of guilt and consequent fear of the truth, they are relevant for consideration as affording positive evidence of guilt. If the circumstances in which the evidence emerges or the arguments of counsel or the summing up might lead the jury to rely upon lies told in court or out of court as positive evidence of guilt, it is desirable that the judge give a full and clear direction as to the circumstances in which they can be properly so considered, drawing attention to other common motives for telling lies. If the judge, in his summing up, leaves lies to the jury for consideration as positive evidence of guilt, it is imperative that he gives such a direction ... ."

In this case, where the Crown had asserted that the applicant had lied about the nature and extent of her relationship with her brother, brother-in-law and Le Duc in order to avoid incriminating herself, it seems to me that the judge was bound to do as he did; namely to formulate with some precision the nature of the lie which the Crown alleged and to give careful directions in the interests of the applicant to ensure that the jury did not misuse it. To that end he formulated the nature of the lie in discussion with counsel and thereafter gave the directions to which I have already referred. Those directions were, in my view, unimpeachable and were not the subject of any exception taken by counsel.

I cannot accept Mr. Tehan's submission that his Honour's directions were calculated to invert the onus of proof. On more than one occasion the judge reminded the jury that the Crown carried the burden of proving the guilt of the applicant beyond reasonable doubt and that the applicant carried no onus at all. It is true that he told the jury that they must acquit the applicant unless they were satisfied beyond reasonable doubt that the account given by her was untrue, but that was a direction given by the judge in the context of telling the jury that the Crown alone carried the burden of proving the guilt of the applicant and, having regard to the issues raised in the case, was an appropriate manner in which to structure the charge. In essence he was telling the jury that they had to reject what the applicant was asserting as a reasonable possibility before they could convict her (cf. R. v. Pahuja (No.2) (1989) 50 S.A.S.R. 551 at 568-9, per Prior, J.). It follows from the jury's verdict, in the light of these directions, that they must have found beyond reasonable doubt that the applicant's account was untrue. However, his Honour went on to instruct the jury, in the context of the Crown's assertion that the applicant had told lies about the extent of her knowledge or belief, that he wanted "to stress as strongly" as he could that:

"if you find that she did tell a lie or lies during the course of her evidence, that would not of itself, establish her guilt. There are a whole variety of reasons as to why people may tell lies, and I will say something to you about that later, so the mere fact that an accused person tells a lie or lies does not necessarily lead to the conclusion that they are guilty. The Crown must still prove its case beyond reasonable doubt."

This was a direction in accordance with Broadhurst v. R. [1964] A.C. 441 at 457 and, as I understood Mr. Tehan's argument, that was as far as the judge should have gone. However, for the reasons already given, the manner in which the case had developed made it incumbent upon the judge, in the interests of justice, to go on and give the directions which he did in accordance with Edwards v. R. (supra).

In my opinion, his Honour's charge was carefully constructed to meet the issues which had unfolded before him. The Crown case was, as defence counsel conceded at the trial, a "substantial" one and the directions which his Honour gave were, in my view, appropriate in their content and form and necessary to protect the interests of the accused. That, no doubt, was the reason why no exception was taken to them.

In any event, even if his Honour was in error in leaving the asserted lies to the jury as evidence probative of guilt, I am satisfied that no substantial miscarriage of justice has been occasioned to the applicant as a consequence of the error, having regard to the fact that he had already directed the jury that they must acquit the applicant if they were not satisfied beyond reasonable doubt that her account was false.

I would, accordingly, dismiss the application for leave to appeal against conviction.

The applicant has also sought leave to appeal against the sentence imposed. The original grounds upon which that application was based were also amended by adding to the ground that the sentence was manifestly excessive the following grounds:

"2. The [judge] erred in failing to properly reflect in the sentence passed his finding that the criminality of the applicant was of the same order as that of Le Duc. 3. The [judge] erred in failing to properly have regard to the principles concerning the imposition of the non-parole period; and thereby failed to allow for any greater disparity than two years imprisonment between the head term and non-parole period."

In passing sentence, the judge noted that the importation in which the applicant had been knowingly concerned involved almost twice the amount of heroin which the statute prescribed to be a "commercial quantity" and that the maximum sentence for such an offence was life imprisonment. However he also noted that, in passing what he considered to be an appropriate sentence, parity of sentence with that passed on Le Duc was of significance. Mr. Tehan placed particular emphasis on the following remarks made by his Honour:

"Obviously, your criminality is of a much lower order than that of Ken Ha and of Vann La. I have concluded that your criminality is, generally, of the same order as that of Le Duc. He received very considerable sentencing discounts, to which you are not entitled, namely discounts for his plea of guilty, to his past co-operation and to his promise of future co-operation. However, as I have indicated at the outset of these remarks, you are entitled to have your sentence mitigated by reason of the consequence of your co-operation in the conduct of the trial."

The "co-operation" to which his Honour referred in the last sentence of these remarks was the co-operation in the form of substantial admissions which resulted in the trial being much shorter than was otherwise expected, and the consequent reduction in the number of witnesses called by the Crown.

Mr. Tehan, in support of ground 2, did not strongly quibble with his Honour's equation of the criminality of the applicant with that of Le Duc in the December importation, but contended that his finding in this regard was not reflected in the sentence which he passed. Le Duc was ultimately sentenced to 7 years and 6 months with a minimum term of 5 years and 6 months. To have passed a sentence upon the applicant in which the minimum term to be served was almost double that of Le Duc, Mr. Tehan argued, was a failure to put into effect the principal finding which the judge had made, notwithstanding the discounts to which Le Duc was entitled. In this regard Mr. Tehan pointed to the remarks of the judge who had sentenced Le Duc where that judge had stated that, but for Le Duc's co-operation the appropriate sentence would have been a head sentence of 11 years with a 9 year minimum. Of the discount given, the proportion assigned for "future co-operation", in accordance with s.21E of the Crimes Act 1914 (Cth), was 18 months in respect of the head term and 2 years in respect of the minimum term.

On this application Mr. Tehan submitted that, although Le Duc had been charged with and sentenced for the offence of "being knowingly concerned" in the importation of 8 December 1995 - that is, the same offence of which the applicant had been convicted - the judge who sentenced him had taken into account, as part of the context in which his criminality was to be assessed, the fact that he had knowingly come to Melbourne earlier in 1995 to receive a further consignment of heroin and, when that did not eventuate, had knowingly engaged in trafficking substantial quantities of the drug at the behest of his principals. In committing the crime for which he was standing for sentence, he was, thus, continuing to immerse himself in a criminal enterprise which he knew to be both substantial and sophisticated. Mr. Tehan submitted that, in the case of the applicant, the Crown did not contend that she had any knowledge of her principals' involvement, or that of Le Duc, in heroin importation or dealing until later in the year 1995 when the arrangements for the December importation were being put in place. Furthermore, he submitted that whilst Le Duc's overall involvement was motivated purely by greed, the applicant's involvement, as his Honour acknowledged, was triggered by a "misplaced loyalty" to her younger brother. In the result, Mr. Tehan contended, the sentence of 12 years imprisonment imposed upon the applicant, which his Honour acknowledged to be a "very heavy sentence to impose upon a 44 year old woman with no prior convictions", was manifestly excessive, principally because it reflected an overstatement of her criminality.

After anxious consideration, I have come to the conclusion that the substance of Mr. Tehan's submissions is correct and that the sentence which his Honour imposed is manifestly excessive and disproportionate to her overall criminality in the offence of which she was convicted. Clearly the sentence which has to be imposed is one which reflects the community's attitude towards those who play a part in the introduction into this country of a substance which is so destructive to health, particularly that of young people. Those who engage in the activity purely for the purposes of greed and profit can expect to be severely dealt with by the courts. Even those who engage in the activity for other reasons, such as misguided loyalty to family, can expect heavy prison terms. However, in the circumstances of this applicant, those expectations will be adequately met, I believe, by the imposition of a head sentence of 10 years. I would order the applicant to serve a minimum of 8 years before becoming eligible for parole. I note, in passing, that in coming to this conclusion I have taken into account the provisions of s.16G of the Crimes Act 1914.

I agree that the application for leave to appeal against conviction should be dismissed for the reasons stated by Winneke, P.

The only significant issue in the trial was the state of mind of the applicant. The importation of heroin and her dealing with money derived from its sale and a source of its acquisition by those who arranged for its importation were not in issue. Further, it was not to be denied that the applicant and her brother and brother-in-law had been at pains to conceal their activities concerning the money from the authorities. Hence the cloaking of their communications in code and division of the money into amounts that avoided the requirement to report transactions concerning the money.

Accordingly, for all practical purposes the rejection by the jury of the applicant's account of her state of mind entailed a verdict of guilty. It is this circumstance that gives the use of the lie as evidence of the commission of the offence a resemblance to the bootstrap argument that a false denial is evidence of guilt. R. v. Gionfriddo and Faure (1989) 50 A.Crim.R. 327, at p.333; R. v. Laz [1998] 1 V.R. 453, at p.466. However, the resemblance is spurious. The applicant's evidence is properly described as an explanation rather than a denial, and the jury was entitled to conclude that the false explanation was adopted by the applicant because she wished to prevent the jury finding that she was knowingly concerned in the importation of heroin, and thus the lie constituted an implied admission of guilt. Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193, at pp.208-9.

I also agree with Winneke, P. that the sentence imposed upon the applicant was manifestly excessive in that it appears the sentencing judge did not give sufficient weight to the fact that the applicant was not the originator or architect of the importation scheme but rather was inducted by a man able to play upon her loyalty to him as her brother. I would re-sentence the applicant in the manner proposed by Winneke, P.

Criminal law - "Knowingly concerned in the importation of heroin" - Applicant giving evidence that she knew she was involved in illegal activity but contending that she believed she was involved in the activity of "money laundering" and not importation of heroin - Whether judge entitled to direct the jury that the explanation if found to be false, constituted a consciousness of guilt - Whether directions in accordance with Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 were appropriate in the circumstances - Application for leave to appeal against conviction dismissed. Sentence - Sentence imposed of 12 years with a minimum of 10 years disproportionate to criminality of applicant - Application for leave to appeal against sentence allowed.

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Judgment (48 paragraphs)

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Cases Cited (2)