R v Nicholas [2000] VSCA 49

2. The applicant, who is aged 59, was convicted in the County Court at Melbourne in November, 1998, of one count of possession of a trafficable quantity of heroin (count 1 on the indictment) and one count of attempting to obtain possession of a commercial quantity of heroin (count 2). These offences, which carried maximum penalties of 25 years' imprisonment and or a fine of $100,000 (subject to s.235(3) of the Customs Act 1901) and life imprisonment respectively, were alleged to have been committed at Melbourne on 24 September, 1994. The reason why the counts were pleaded as they were was that they related to a "controlled delivery" of heroin imported from Thailand. Upon its arrival in Melbourne the Australian Federal Police ("the AFP") removed from 24 compressed blocks of powder containing heroin and with a nett weight of 8,389.6 grams, 51.6 grams as a sample. 490.2 grams was repacked for the purpose of the controlled delivery and the balance, 7,847.8 grams was retained by the police. Count 2 related to the entire amount of powder which was found to be 74% pure heroin.

5. The applicant admitted having been previously convicted in June, 1990, in the County Court at Melbourne, of 22 counts of obtaining financial advantage by deception for which offences he was ultimately sentenced to a total effective term of three years and six months' imprisonment with a minimum term of two years and six months' imprisonment.

8. After a plea for leniency which was conducted over several days and which involved viva voce evidence and medical evidence, the learned judge, on 10 February, 1999, sentenced the applicant to be imprisoned for ten years on count 1 and for 15 years on count 2. Both sentences were ordered to commence on 10 February, 1999, thus making for a total effective sentence of 15 years' imprisonment. His Honour fixed a non-parole period of ten years and made a declaration as to pre-sentence custody. There was an alleged co-offender, one Lu, against whom informations were laid by the police. However, proceedings against him were discontinued prior to any committal upon the ground that he was mortally ill. The applicant later lodged notices of application for leave to appeal against conviction and sentence pleading a variety of grounds. Those touching convictions and which were argued were:

"1. The learned trial judge erred by failing to find and hold that the Listening Device Warrant dated 23rd September, 1994, and purportedly issued under s219B(5) of the Customs Act 1901 was invalid and that the evidence obtained thereby was illegally obtained. 2. The learned trial judge erred by admitting into evidence the out of Court conversation between the co-offender Lu and the Police Officer Termsrisuk as an exception to the rule against hearsay. 3. The trial miscarried as a result of the admission into evidence of parts of the Police interview of the third party Lu and the subsequent invitation by the Prosecutor in the course of her final address to use the evidence for a hearsay purpose. ... 6. The trial miscarried as a result of the learned trial judge giving the jury a direction in accordance with the rule in Browne v. Dunn in circumstances where it was not required and where the effect was to cause unfair prejudice to the applicant. 7. The learned trial judge erred in finding that the evidentiary preconditions to the operation of s15X of the Crimes Act 1901 were satisfied. ...

"1. The learned sentencing judge erred by finding as a circumstance of aggravation that the applicant was a principal in the matter and thereby elevating his role to a level that was not supported by the evidence. 2. The learned sentencing judge erred by attributing too much weight to the applicant's prior convictions, in particular by finding that in each instance the applicant had been motivated by unlawful self enrichment which finding was both contrary to the evidence and to the findings of the Court of Criminal Appeal. 3. The learned sentencing judge erred in that having accepted the medical evidence led on behalf of the applicant to the effect that at the relevant time the applicant was suffering from a significant brain injury and disturbed intellectual functioning, he failed to accord that evidence any weight when considering issues of general and personal deterrence. 4. The sentence imposed on the applicant was, in all the circumstances, a crushing sentence."

18. The applicant's case has had a considerable history. Prior to the importation of the heroin and the applicant's arrest the Regional Director of the Australian Customs Service ("the ACS") granted, on 22 September, 1994, in respect of the proposed importation a Request for Exemption from Detailed Customs Scrutiny on behalf of the AFP which will be set out below. On 23 September, Einfield, J. of the Federal Court of Australia issued two warrants under s.219B of the Customs Act 1901. The first, which was said to relate to "a particular person", purported to be issued under sub-s.5 of that section and the second, which related to "particular premises", was issued under sub-s.7 of that section. The applicant was arrested on the same day shortly after 9:30 in the evening and was charged with three offences contrary to the Customs Act 1901. These charges related to an alleged importation, possession and attempted possession of a prohibited import, heroin. As we have said, Lu faced similar charges. The applicant was granted bail on 21 December, 1994. Lu was granted bail on 29 March, 1995. On 10 April, 1995, committal proceedings in relation to the applicant commenced. Those relating to Lu were adjourned to 11 April to enable the Director of Public Prosecutions to consider whether the prosecution against him should continue having regard to his short term life expectancy due to lymphoma. On 11 April, the charges against Lu were struck out. On 12 April, the applicant was committed for trial in the County Court. His bail was continued. On 11 May he applied for the reporting conditions of his bail to be removed following the decision of the High Court in Ridgeway v. The Queen [1995] HCA 66; (1995) 184 C.L.R. 19. (Judgment had been given on 19 April, 1995.) His application was granted.

21. There were various arraignment proceedings in the County Court upon an indictment which then contained four counts. On 27 March the applicant first came before His Honour Judge Crossley who subsequently presided at the applicant's trial. After various proceedings his Honour, on 27 May, 1996, ordered a stay of the counts on the indictment laid under the Customs Act. This decision was based upon Ridgeway which provoked a retrospective amendment to the Crimes Act (Cth.) which introduced a number of new sections including s.15X, the operation of which will be analysed later. The prosecution sought to rely on the new section and, as a result, further proceedings ensued during which its constitutional validity was challenged. Ultimately, after the proceedings were removed to the High Court pursuant to the Judiciary Act 1903 and a hearing conducted in September, 1997, s.15X was declared by the High Court on 2 February, 1998, to be a valid law and the matter was remitted to the County Court for further hearing: see Nicholas v. The Queen [1998] HCA 9; (1998) 193 C.L.R. 173. Trial proceedings commenced on 28 September, 1998, and certain rulings were made by his Honour. Leave was granted to the Crown to file over a fresh indictment containing only the Customs Act counts. On 6 October, the first jury was discharged for reasons not presently relevant.

24. On 7 October, 1998, a new jury was empanelled. Presentation of the Crown case lasted until 9 November. The defence case commenced on 10 November. The applicant and his wife gave evidence together with three expert witnesses. Counsels' addresses followed and the jury's guilty verdicts were returned on 26 November.

28. It is necessary to give a summary of the facts relating to the alleged commission of these offences, as well as some of the specific evidence by which the prosecution sought to prove its case. The facts now outlined amount to what in effect the prosecution asserted was the basis upon which it sought and obtained convictions at the trial and may, unless it otherwise appears in this judgment, be accepted as substantially the basis upon which the jury convicted and upon which the judge sentenced the applicant, assuming that the prosecution witnesses were accepted and the inferences asserted by the prosecution were drawn.

31. So far as is known to the Court, the events commenced on 17 September 1994 when a narcotic investigator, Niyom Termsrisuk, employed by the Thai Narcotic Control Board, took delivery of the 24 blocks of heroin from a person in Chiang Rai in Thailand. To get these blocks he had posed as a courier, having travelled to Chiang Rai for the purpose of obtaining them. The Court was told little, not surprisingly, of the circumstances in which Termsrisuk came to know of the consignment or from whom it was obtained. It was told only that he had received information about a potential drug importation into Australia, with the result that the relevant Australian authorities had been contacted and a decision made that they would co-operate in relation to the importation, in circumstances where obviously Termsrisuk and the Australian officials were complicit in that importation. The circumstances under which controlled importations were made were analysed by the High Court in Ridgeway which held that such importations were illegal and that evidence of them was not admissible. But evidence of the importation of the heroin in the context of a controlled operation was permitted to be adduced under s.15X. That aspect of the trial is the subject of ground 7 which will be analysed later.

34. Suffice it to say that Termsrisuk made various appointments by phone and took delivery of the heroin. It was contained in a black vinyl Fendi bag which will be referred to later. Having returned to Bangkok he met with Det. Acting Sergeant Proebstl of the AFP who had arrived there on 20 September for the purpose of participating in the controlled delivery. Termsrisuk handed Proebstl the bag containing the 24 blocks.

37. On 23 September 1994 both Termsrisuk and Proebstl boarded a flight in Bangkok destined for Sydney and thereafter Melbourne. Proebstl carried the bag of heroin but Termsrisuk travelled to Australia with the intention of acting as the courier on arrival in order to detect the intended Australian recipients of the consignment. Proebstl took the bag of heroin through Customs, completing inaccurate declaration forms for the purpose and, in accordance with the exemption granted by the ACS on 22 September 1994 to which reference was made earlier, without interference by Customs officials.

40. After Termsrisuk arrived in Melbourne he went straight to the Hotel Como in South Yarra and checked into Room 320 under the name Prasait Temasek. At the same time Proebstl went from the airport to AFP headquarters where federal police effectuated a substitution of the heroin by removing all of it except for a sample amount and controlled delivery amounts and repacking the latter into substitute blocks prepared by them. Thereafter each substitute block was repackaged so as to resemble its original form. The street value of the heroin at the time was said to be $12,484,000. Later that day, at about 5.10 p.m. Proebstl and Det. Sgt. Hamilton took a block described during the trial as the "rooster" block (because of a symbol printed thereon) and the other substituted blocks in the black bag to Termsrisuk at his room in the Hotel Como.

43. Meanwhile Termsrisuk made a number of telephone calls from his room at the Hotel Como on 24 September 1994. It appears that he was seeking instructions about what to do with the heroin. All the telephone conversations were recorded by authorised telephone intercepts or by listening devices which were installed by the AFP. Some of the tapes were played in evidence. In the course of five calls between about 1.29 a.m. and 5.23 p.m. he telephoned a number in Thailand and spoke to a person there, asking for the relevant contact address. He was given a number shortly before 12 noon and spoke to a person in Australia who referred him to a "fat" Chinese male aged between 45 and 50 who would come to see him after he had made contact. Termsrisuk made a number of unsuccessful attempts to contact that person by telephone. Eventually, at about 5.36 p.m. he received a call from one Cjun Khe Lu, which came from a mobile service number connected nearly a year earlier in the name of the applicant at his Malvern address. (The applicant later said in evidence that he had lent Lu the mobile phone because they had had a number of business dealings concerning racehorses in Malaysia.) During the 5.36 p.m. conversation Termsrisuk gave Lu details about the Hotel Como and they arranged to meet in the hotel lobby just before 6 p.m. Lu put a question to Termsrisuk as to how much money he wanted and it was agreed that $2,000 was sufficient.

46. At 6.01 p.m. the same day Termsrisuk went down to the foyer of the Hotel Como where he met Lu. Inspection of a sample was thought unnecessary but an arrangement was made that Lu would arrange for a Range Rover to come there with "my man" but he would arrive ten minutes before the time of the car's agreed arrival. The question of money was again discussed, $2,000 again being thought sufficient, part being necessary to pay the hotel bill. This conversation and many others was recorded by use of listening devices for which authority had been given by Einfeld, J. as has been mentioned earlier, but that authority is disputed on the basis that, inter alia, the form that the warrant took went beyond that which the Customs Act permitted. This issue will be discussed more fully in the context of analysing ground 1. The 6.01 p.m. conversation will also be further discussed in the context of ground 2, under cover of which it was also argued that the conversation between Termsrisuk and Lu did not take place in the course of carrying out any conspiracy involving the applicant which was proved to be in existence at that time.

49. The first direct evidence of the involvement of the applicant came from a phone call to him at about 6.15 p.m. by Lu in which he asked the applicant for $2,000 to which the latter immediately said "No worries". (The taxi driver who gave evidence of the terms of the conversation could not, of course, identify the applicant but Lu made the call on the mobile phone lent to him by the applicant and the records obtained from Telstra showed that the call made at that time, as was a later call at 6.19 p.m., was to the applicant's home number.)

52. The taxi driver had taken Lu to the hotel known as the Chateau Melbourne in Lonsdale Street. There seems to have been no other relevant contact between those involved until about a quarter to nine when federal police officers saw the applicant's Range Rover being driven by him with Lu in the front passenger seat leave the hotel car park in Lonsdale Street. From there they travelled to the Hotel Como. At about 9.01 p.m. Termsrisuk in his hotel room received a phone call from Lu. He confirmed Termsrisuk's phone number and said "We go for dinner now". They arranged to meet in the lobby of the hotel. As a result of this call Termsrisuk went to the hotel foyer and met Lu. They sat down and had a conversation, which was again tape recorded by means of a listening device worn by Termsrisuk. They discussed various arrangements about phone calls to unidentified contacts and then how the bag would be brought to Lu while seated in the car, while at the same time Lu would in return hand over the $2,000. If it was not safe to hand over the bag, Lu would not be wearing his hat.

55. At about 9.07 p.m. Lu walked to the Range Rover from the front entrance of the hotel while Termsrisuk returned to his hotel room to retrieve the travel bag containing the 24 substituted blocks. A few minutes later Termsrisuk left the hotel himself and went towards the Range Rover which was double-parked just north of the hotel front entrance, with Lu seated again in the front passenger seat and wearing his hat as agreed. Termsrisuk then went to the rear passenger door, opened it and placed the black bag on the floor of the rear of the cabin immediately behind Lu's seat. In turn, Lu handed Termsrisuk $2,000 in cash while they had a brief conversation. Termsrisuk later handed this money to a police officer.

58. The conversations Termsrisuk, Lu and the applicant then had were seen as being of critical importance to the prosecution case in that they included the only recorded conversation of any length between the applicant and the others involved in the importation of the heroin and which took place less than half an hour before the car was stopped and the applicant and Lu arrested. The conversation (which we shall call "the 9.15 p.m. conversation") was recorded by a number of devices, at first by one on Termsrisuk and then by others in the black bag containing the substituted blocks of heroin. Termsrisuk's participation in the conversation finished shortly after he had received the money and with agreement that he would call Lu in one hour. The applicant then remarked, significantly so it was said, that Termsrisuk was "so cool". Lu made a number of phone calls during the journey in the course of which he told the applicant that he was seeking permission to call Bangkok. The applicant offered Lu the use of his own phone which he turned down. The applicant then asked whether it was "okay to put it in the back of the car", which led to their deciding to go to the car park at the Jam Factory in Chapel Street.

61. During this conversation the car was observed entering the car park, parking at the western end nearest the Jam Factory. The applicant was seen getting out of the driving side door, walking to the rear and opening the glass panel tailgate. Lu passed the black carry bag with the substituted blocks over the rear seat to the applicant who lifted up a rear ledge over the boot space and placed the bag inside. Having covered the bag with sheets he closed the tailgate, got back in again and left the car park at about 9.18 p.m. During the moving of the bag the applicant asked how much Lu wanted him to take out, to which Lu responded by asking for one piece. One piece was later found under the front passenger seat. The applicant referred to the bag as a "nice bag", but laughing at the same time, perhaps, at his description.

64. The conversation continued as the car started up again and in due course they travelled, so it was observed, back down Chapel Street and thence into the City so as to be travelling east along Lonsdale Street. That conversation was also recorded but, principally because the transmitting device was located in the bag containing the heroin which was located at the rear of the vehicle, not all of it was reproduced on the tape that was played to the jury. What they heard were, in effect, snippets of the conversation which included the following. It seems that shortly after Lu had taken a sample block of the heroin, the applicant asked whether he wanted to have a look, but Lu responded by saying that he had "plenty of time to look at it". The applicant himself asked to "give me a look". A little later Lu explained that the brand of the heroin was one which they called "virgin because, virgin prostitute", (apparently, so it was claimed, because it was 70% pure); "nobody can imitate this brand because their whole family will be massacred ...". Although the engine was heard running at this time they had still not left the Jam Factory for an attendant then asked for $4.50 which was paid. There is then further intermittent conversation, at first largely from Lu, who described a manager who had already checked "if you follow the law". Lu confirmed that, if they had done it "all right", "he should have come out with the luggage and then walk out as I told him just now ...". Then Lu said "nobody knows, only you know", although the applicant said in evidence that this related to Lu's medical condition, for Lu himself was in the advanced stages of cancer and did not survive to the trial. Then, significantly, the applicant said: "I'd ... really die if they find it ... in my house". Lu reassured him on that but then advised the applicant that he should not turn into the hotel. The applicant then uttered these words: "Certainly if I have it in my office no problem". Lu then had a conversation by phone in Cantonese, after which there was further, largely unintelligible, conversation, including the applicant saying "once a crook always a crook ...". Lu then starts telling the applicant that, "once you confirm the quantity ... or ... getting confirmed that they have to pay ...". This is interrupted by the applicant asking "how?", to which Lu replied that "Look like you just keep ... next couple of days ...". There was then some conversation as to what was thought to be the weight of the packages, for Lu describes something as being "700", which the applicant repeated, but which is said to be significant because it is known that two blocks of heroin weigh 700gms. After a few more words the applicant then said "These poor bastards that grow the stuff they get nothing ...". Apart from a brief further comment by Lu about the costs of transportation, that is all that was recorded before they were intercepted.

67. As will be seen later the applicant's case was that this whole conversation did not take place in the order suggested by the tape played to the jury but had been reconstructed by the AFP by deleting some conversations on the tape and moving others into different contexts so as to implicate him in relation to the heroin. The applicant's counsel attacked Hamilton in particular on this issue alleging, in effect, that he was primarily responsible for the falsification of the tape. The applicant produced in evidence a tape which he claimed set out accurately the order and the content of his conversations with Lu.

70. It was while the Range Rover was travelling east along Lonsdale Street that it was intercepted by the federal police, between Swanston and Russell Streets at about 9.31 p.m. on 24 September 1994. Both Lu and the applicant were arrested and placed in handcuffs.

73. When the Range Rover was intercepted those involved in arresting the applicant and Lu called out "police" before opening the doors, but the applicant resisted being removed from the car. He was told that he was being arrested for possession of a large quantity of heroin and advised that anything he said would be recorded. The applicant repeatedly asked for a solicitor but was told that that was up to Hamilton who was in charge of the police arresting the applicant. Hamilton was also asked by the applicant if he could get in touch with his wife. That decision was ultimately left to Det. Supt. Phillips who was in general command of the operation but not present at the arrests. An operational decision was made that the applicant could not see his solicitor or have access to his wife because of the ongoing nature of the inquiries and the need to preserve any evidence at places where searches might be carried out at the applicant's home or elsewhere.

76. At 9.52 p.m. there was a brief conversation, which was recorded, between the applicant and Hamilton, together with two detective constables. In substance he said, after having been warned, that the Range Rover was owned by a family trust. He said that Lu had been a partner trying to locate hotels on behalf of the Wandong Provincial Government. Having been told that he was arrested in relation to the importation of a large quantity of heroin, the applicant asked "What's that got to do with this?" He was asked to describe the contents of the car, and at first identified the mobile telephone and a number of general files on the floor near the rear seat. When shown the rear area of the vehicle he described the contents as including material he used when he went to Buller, as well as a bag, being the black vinyl bag. He described how the bag came to be in the car by saying that he picked it up from a person at the hotel about an hour ago. He said that person came out because he was checking out and he supposed that he was going to be checking into a hotel in the City. He had been asked to take him to a hotel into the City, rather than stay out in South Yarra, although he did not know the person. He had been asked to do that with Lu whom he collected from the Chateau Commodore. However, the unknown man had given him the bag but he was going to meet them later at the hotel. The conversation did not proceed any further because the applicant complained that he was standing in the street and he was in a state of shock. That interview concluded at 10.10 p.m.

79. He was then taken to the headquarters of the AFP in Latrobe Street where he was again interviewed, sometime later, starting at 11.53p.m Each time the applicant objected that he could not get in touch with his wife or get proper legal representation. The last of these interviews commenced at 12.46a.m. and continued beyond 1a.m., but no questions effectively were answered by the applicant in the circumstances.

82. In the meantime the Range Rover had been taken to the AFP headquarters and searched. Not only was there the black carry bag with the substituted blocks of heroin but there was later found the white envelope under the front passenger seat containing one of those blocks. Later searches were conducted at the Chateau Melbourne Hotel at 131 Lonsdale Street and the applicant's home. Finally, but relevantly in particular to ground 3, Lu was interviewed and gave answers which were, of course, not led directly before the jury. However, there was extensive cross-examination of Hamilton in relation to this interview and considerable comment as to what Lu had said and how the AFP had used it. It is sufficient to say that Lu sought to accept complete responsibility for the events, although his answers were, so it was said, capable of being used to implicate the applicant further than he accepted at trial, but further details of this matter will be described in discussing ground 3 of the application.

85. No identifiable fingerprints were found on any article examined by the police. Nor was any incriminating evidence discovered in searches of the applicant's home.

88. The matters summarised above were taken from the evidence of a large number of witnesses called at the trial by the prosecution, as well as from exhibits tendered by them. Many of the witnesses were able to observe and hear only a small part of the events and they were cross-examined in various ways to test their reliability. In addition there were a number of expert witnesses called, especially Dale Warren and Dr. Prandolini, whose evidence was likewise challenged though in certain limited ways, as will be discussed in considering ground 6.

92. The applicant gave evidence as part of his defence and sought also to call some witnesses as to his allegation that the tape recordings had been tampered with so as to produce an untrue or misleading version of what the applicant had said. The applicant in the course of his evidence, which will be described below, gave a very different version of the events, in substance stating that he only drove Lu on the night because he was anxious to help his business friend and so they might have a meal together. He said he knew nothing about the heroin and sought to explain his participation on the night by placing an innocent construction on the events, certainly in terms of his reconstructed version of the tape recording of his conversations with Lu on the trip from the Hotel Como to their interception in Lonsdale Street.

30 The applicant said that he was 58 years old and was a partner with his wife in a marketing business. In 1994 he was the general manager of CNCC Malaysia Engineering in Kuala Lumpur, which is a wholly-owned subsidiary of the Chinese National Government. He was based in Kuala Lumpur, living there for 3-4 weeks at a time before returning to Australia for 10 day periods. The business was involved with construction and infrastructure financing for major government projects. He was paid approximately $75,000 per annum plus all expenses and airfares. He was also able to draw on the funds of his family trust.

96. He met Lu in the mid-1980s in Hong Kong when Lu's business was involved with shipping Indonesian timber to China. During the late 1980s he saw Lu infrequently. At some stage between 1992 and 1994 Lu approached him to see if the applicant would assist him in the export of Australian thoroughbred horses to Malaysia. As a result, they carried out this business very successfully over the next few years.

99. In July 1994 he was working in Kuala Lumpur but arrived back in Australia for his birthday on 8 August. He returned to Kuala Lumpur immediately after his birthday. He spoke to Lu once or twice in July and August, when he was told that Lu was coming to Australia. At one stage Lu asked if the applicant could arrange for him to have a mobile phone in Australia. The applicant offered Lu his phone and made arrangements to leave the phone at his home and Lu subsequently collected it from there in his absence. He returned to Australia to look after his wife a few days before she had a scheduled hysterectomy on 30 August. She suffered serious post-operative complications, confining her to bed. He had advised colleagues in Malaysia that he would be returning there around the third week of September because of considerable work he had to do prior to a scheduled visit to China in early October.

102. In September the applicant had regular telephone contact with Lu during which they discussed various business matters. The applicant also saw Lu on 2 or 3 occasions in September for short meetings during the day. Prior to 24 September, he last saw Lu around 22 September, to discuss an extensive offer for racehorses and arranged to meet him for lunch at a restaurant near Lu's hotel on Friday 23 September. At that meeting they discussed expanding the business of horse exports. Lu asked if they could get together for a social engagement prior to him leaving. On the Friday night Lu rang and asked if they could have dinner on Saturday night. The applicant rang Lu back on Saturday and told him that he would be able to join him for dinner but that he could not confirm a time as he had to make arrangements with his mother-in-law to be with his wife. (The applicant said that he had absolutely no idea that Lu was involved with Termsrisuk or drugs.)

105. Lu called back later and the applicant told Lu that he would be late for the dinner. To his surprise, Lu called him again a few minutes later and asked to borrow $2,000. He agreed to lend him the money because Lu had always repaid his debts. The applicant said he had the $2,000 in cash; he usually carried cash of $2-$3,000 because overseas he found travellers cheques inconvenient. He drove to the city from his house in Malvern and parked in the car park of Lu's hotel, anticipating that they would be eating in Chinatown and called him from the lobby. Lu told him to come up to his room as he was not ready. When he arrived Lu looked terrible. At this stage the applicant knew that Lu was very sick. He said that he presumed Lu was on medication because of the fluctuations in his mood and hot and cold fevers. Lu asked him to take him to the Hotel Como where he had to meet a friend at 9.00 p.m. Lu said that the man was involved with a China hotel project and that he would be taking his friend to the Casino afterwards. The applicant said that the change in plans made no difference to him as the Hotel Como was on his way home and it meant he could get home earlier. He was under the impression that they would all dine out together there. During the conversation the applicant gave Lu the $2,000. He then drove from Lonsdale Street to the Hotel Como in his Range Rover. They discussed Lu's health. Lu said that he (the applicant) was the only one who knew about his dying state; he did not want anyone else to know because of his business dealings.

108. The applicant said that he imagined that Lu would go into the hotel, bring his friend out and they would go for dinner together, but Lu came back to the car and said his friend was checking out and wanted to go to the City because he was uncomfortable because there were no Asians in the hotel. The applicant expected the person to come to the car after he checked out. He told Lu that he would take him to the Tokyo Teppanyaki, a restaurant close to the Jam Factory, and later would drive both him and his friend back to the City. He saw a person he now knows to be Termsrisuk, whom he had never seen before, come out of the hotel. Termsrisuk came to the car, opened the back door, put his bag on the floor of the back seat, closed the door and, after a conversation with Lu which the applicant could not understand, headed off. He could not understand what was said because it was a mixture of English and Chinese. He believed that Lu handed Termsrisuk money for the purpose of paying his bill. He asked Lu why the person was not getting in and about the proposed dinner. Lu said that the person was frightened and had told Lu to go. We have already mentioned that the applicant claimed at the trial that the AFP had manipulated the tapes so as to delete some conversations and alter the sequence of others. He said that the changes took place after about this point in his discussions with Lu. When Lu told him "Let's go", he said "OK" and drove off towards the Tokyo Teppanyaki where he thought they would dine. As there was no parking in Chapel Street, he decided to park in the Jam Factory. He asked Lu if he minded if he put his luggage in the back and Lu said it was okay. The applicant said that he wanted to stick the luggage in the back because he would never leave anything exposed in his car for fear of it being stolen. He parked the Range Rover as close as possible to the walkway through to the Jam Factory so that they could go straight out into the street to the Tokyo Teppanyaki.

111. The applicant said that he then went to the back of the Range Rover and opened the back compartment. He had papers and files in the compartment into which people could not see. By then Lu was in the back seat of the Range Rover where it was dark but he could nevertheless see him fiddling with the bag. When the applicant asked him what he was doing, Lu said he had to get something or a sample out of it but that it had nothing to do with the applicant and was none of his business. The applicant said he had not heard this part of the conversation reproduced on the tape (which was tendered in evidence). He said he did not open or close the bag at any time. Lu asked him for a piece of paper off the back deck and he thought Lu wanted it to wrap his sample. He said that he handed Lu all the papers and files. The applicant agreed that it was unusual that Lu was opening his friend's bag. Lu eventually handed him the bag which, to his surprise, was very heavy and resulted in the back deck collapsing. The applicant thought he was not going to be able to get the back cover on again so he covered the bag with drop sheets and dog sheets he had in the car so that nobody could see it and be tempted to break in and take it. He said he would not have covered it if he had not been going for dinner to the Tokyo Teppanyaki. By the time the applicant got to the front of his car, Lu was on the telephone. He said to Lu to come to dinner but Lu asked to be taken back to his hotel as he had to meet his friend in an hour. He thought Lu was behaving in an extraordinary way but that this was due to the medication. They then drove out of the car park.

114. The applicant said that he remembered Lu saying on the way back to his hotel "Nobody knows, nobody knows", which was a reference to nobody knowing about his illness. Lu said that if people knew that he was dying they would never sign contracts with which he was involved.

117. Lu said "I don't need that" because the applicant claimed that he had given Lu all the papers. The bag was shut when it fell into the boot cargo area. He did not understand Lu when he was on the phone. As they left the car park, Lu asked him not to let anyone know about his health. He never heard the conversation "I tell you this is the brand, this is virgin... Nobody can imitate this brand because their whole family will be massacred ...". He did not take part in this conversation. He did not believe he could reconstruct it. There was a lot of inaudible discussion regarding the timber business. The references to the manager and "the law" probably related to Lu's manager in Indonesia and the international methods of inspection for loading timber. Lu was at the bag when the opening and scrunching noises on the tape took place. He cannot recall how Lu got to the back of the car. He heard Lu unzipping and fiddling with the bag. Lu told him that he was taking something out of the bag and it was nothing to do with the applicant. Lu talked on the phone. He was at the back of the car for 2-3 minutes. Lu beckoned for him to get into the car and he sat there waiting until Lu finished his call, when he asked Lu what about dinner, but Lu had asked him to take Lu back to Lu's hotel to meet Lu's friend.

120. Some of the conversation was peculiar. The applicant put it down to Lu's medication. He had no idea what Lu was talking about when he described how somebody "should have come out with the luggage". "Nobody knows" was said in the car park. Lu was talking about dying.

123. The applicant had absolutely no idea about the portion "I'd really die if they find it in my house". He could not recall the conversation. It had no connection to Lu's friend's bag because that was going back to Lu's hotel. Lu had said "No you should not turn into the hotel" on Lonsdale Street but the passage appears on the tape prior to having crossed the King Street Bridge. "Certainly if I have it in my office no problem" referred to his having asked whether he had any old timber contracts in relation to his dealings with China. He did not know who Lu was calling on the mobile phone. Lu knew he did not speak Chinese. "You know it will be 700" related to the contract figures of $700 per cubic metre of timber. "The poor bastards that grow the stuff, they get nothing" was his comment because he'd had dealings with those who grow the timber. Transporting timber was a big cost.

126. When intercepted the applicant did not hear the police yell out "police, police". He had intended to do a U-turn, drop Lu off with the bag and head home as he told his wife that he'd only be a few hours. The intercept was frightening, so he had put his arm down to lock the door because he thought it was a gang attack. His head hit the ground when he was dragged from the car and thrown to the ground and he bled profusely. When speaking to Hamilton, he had tried to give precise details but was confused and shaken and in hindsight could not be certain what time he left home or arrived at Lu's hotel.

129. On 27 September Hamilton came with another officer to fingerprint him. There was a bail application. On a subsequent bail application the tape was played but it was virtually totally inaudible, and he was released on bail. A copy of the tape and transcript were provided to him in 1995.

132. He had an operation in 1995 as his brain was under enormous pressure from multiple cysts and he was raced to hospital because he could have had a cerebral haemorrhage at any time. The cysts were removed in September 1995 in an operation that initially had some impact on his memory and coordination. He denied that he was involved in an attempt to possess the heroin. He had no idea that Lu was involved with drugs or would try to involve him. He declared that he never knew for a minute that the bag contained heroin. He did not see the contents of the bag until the court hearing.

135. The applicant was cross-examined in detail, especially about the recorded conversation and about his reconstruction of it. It is not practical to summarise those matters and it would seem, by reason of the verdicts brought in against the applicant, that the jury chose not to accept his version of events, or at least a significant part of it.

138. A number of other witnesses were called on behalf of the applicant. His wife gave evidence generally supportive of him. She confirmed his friendship with Lu extending over about eight years and the applicant's business dealings with him. She had no idea that Lu was involved with drugs and denied firmly her husband's involvement. She confirmed generally her understanding of the arrangements by her husband to meet Lu on the Saturday night in question. She confirmed the applicant's evidence about her own illness and said that the applicant had had significant brain surgery after his arrest which resulted in becoming "a little bit vague". A general practitioner was also called confirming that the operation took place on 17 August 1995 but that he had made a reasonable recovery. He also confirmed that the applicant had had hearing difficulties.

141. The other witnesses for the defence were three expert witnesses. First was an associate professor of scientific photography who had to concede that his expertise related to photographic and visual imagery and not to audio recording. Nevertheless he said that it was possible to fiddle with and reconstruct tape-recordings. A second witness, one McDougall, said that he was a computer technology analyst who had worked in audio engineering and tape analysis. He said it was not impossible to prove that a tape was an original one but said that digital editing these days could not be detected. Finally one Morgan said that he was the director of Soundhouse Studios and was involved in digital editing, mastering and sound recording. Although one could detect editing done at home, one could not be aware of a "good edit" and he gave a demonstration on the re-arranged tape of the conversation.

145. Upon these applications being called on, counsel for the applicant applied for a member of the Court, Chernov, J.A., to disqualify himself on the ground of perceived bias. Argument ensued on this application in the absence of the other members of the Court. The application was not acceded to. Chernov, J.A. delivered his reasons for judgment ex tempore and they were later published. Counsel for the applicant then applied for what he termed a "review" by the entire Court, of the decision of Chernov, J.A. As the Court was exercising Federal jurisdiction, it was submitted that it possessed an inherent or implied jurisdiction to prevent a member "affected" by perceived bias from sitting. Counsel for the Crown expressed reservations about the proposed procedure.

148. In any event, argument ensued and it is sufficient to say that it followed the lines set out in the judgment of Chernov, J.A., which is annexed to this judgment. (Annexure 1) At its conclusion we ruled that assuming, without deciding, that the Court was properly constituted for reconsideration of the issue raised by the applicant, we were unpersuaded that Chernov, J.A. should stand aside. We said we would later publish our reasons. Again, it is sufficient to say that having given consideration (in the case of Chernov, J.A., reconsideration), to those reasons we find them free of reviewable error.

152. We turn now to consider the submissions made on behalf of the applicant in relation to his conviction and we do so in the order in which they were argued.

156. This was the first ground that was argued by counsel for the applicant. In essence, it was submitted that his Honour erred in finding that the factual preconditions to the operation of s.15X of the Crimes Act 1914 were established by the prosecution. The context in which his Honour made that finding can be briefly summarised. We have already mentioned that on 27 May 1996, following pre-trial argument, his Honour effectively ordered a stay of the proceeding on the basis that, in light of Ridgeway the evidence relating to Proebstl's importation of the heroin would not be admissible and without it, the prosecution would fail. The decision in Ridgeway provoked the passing of the Crimes Amendment (Controlled Operations) Act 1996 (which came into operation on 8 July 1996) and which, in certain circumstances, made evidence of unlawful importation of narcotic goods in the context of a controlled operation, admissible at the hearing of prosecutions for offences against s.233D of the Act and associated offences. Consequently, at the mention on 31 July 1996, the prosecution foreshadowed an application to lift the stay of 27 May 1996. The applicant, however, challenged the validity of the amending legislation so that the Crown's application for the removal of the stay was adjourned pending the determination of the constitutional validity of the new legislation. This issue was resolved against the applicant in Nicholas. On 28 September 1998 the prosecution applied to his Honour for an order lifting the stay of 27 May 1996 and in the course of that application, led evidence which was directed to establishing the factual preconditions to the operation of s.15X of the Crimes Act. On 1 October 1998 his Honour ruled that the preconditions had been satisfied, that the Proebstl evidence was admissible and that the stay order of 27 May 1996 be lifted.

159. The applicant argued before us that his Honour erred in ruling that the preconditions to s.15X had been made out by the Crown and, therefore, the Proebstl evidence of the importation of the heroin was wrongly admitted. Hence, it was submitted, the conviction should be quashed.

162. Before examining further the applicant's submissions under this ground it is convenient to look briefly at the relevant legislation and, in particular, s.15X of the Crimes Act 1914 which was introduced by the 1996 amending legislation. It is expressed to operate in specified circumstances which can only be understood by reference to the complex background of the relationship between the bodies responsible for drug enforcement and in particular, the enforcement of the provisions of the Customs Act relating to narcotic offences. Much of this is described in the judgments in Nicholas which in turn refers back to what was said in Ridgeway, being a decision which, as we have previously mentioned, provoked the passing of the amending legislation which introduced into the principal Act Part 1AB, the objects of which are set out in s.15G. The relevant provisions of it are in the following terms:

"The objects of this Part are ... (c) to provide what evidence of importation of narcotic goods obtained through a controlled operation: (i) started before the commencement of this Act; and (ii) in which the Australian Federal Police and the Australian Customs Service acted in concert to allow the narcotic goods to pass through the Customs is not to be rejected because of the unlawful conduct of law enforcement officers that took an active part, or where otherwise involved, in the importation of the narcotic goods."

166. For present purposes it is sufficient to note that Division 2 of Part 1AB is concerned with exempting in certain circumstances law enforcement officers from liability for, inter alia, an offence against s.233B of the Customs Act that may be committed by them (in the future) in the course of their participation in a controlled operation. The new Part does not, however, operate to exempt such officers from liability in respect of relevant offences which were committed by them before the amending legislation took effect. Thus, for example, Proebstl's conduct in relation to the importation of the heroin in this case would not be excused by the new provisions. But Division 3, and more particularly s.15X which forms part of it, provides that evidence of such importation will not be rejected on the ground that the importation was in breach of the Customs Act, provided the factual preconditions set out in the section have been satisfied. The provision is in the following terms.

"15X. In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded, if: (a) the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and (b) for the purpose of the operation: (i) the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901), be exempted from detailed scrutiny by officers of the Australian Customs Service; and (ii) the request for exemption was granted."

The Ministerial Agreement ("the Agreement") to which reference is made in the section, is defined in s.15V(2) as being the Agreement "concerning the relationship between the Australian Customs Service on the one hand, and the National Crime Authority and the Australian Federal Police on the other, with respect to narcotic drug law enforcement ... made by the Minister for Industry, Technology and Commerce and the Special Minister of State on 3 June 1987". Thus, this critical piece of legislation was written in the context of an Agreement which had been in operation for almost a decade and which in form, resembles more a Heads of Agreement than a carefully worded document which seeks to define with some specificity the rights and liabilities of the parties to it. We will examine the terms of the Agreement and its operation a little later.

54 That s.15X has retrospective operation has been accepted by the parties to the appeal. Its terms and those of ss.15G and 15V(1) in particular, make that clear. It follows, therefore, that if s.15X applies, then, notwithstanding the decision in Ridgeway, the evidence of Proebstl as to the unlawful importation of the heroin by him was admissible in the course of the applicant's trial. This was not challenged by the applicant. His case on this issue was that the prosecution has not established that all the preconditions to the operation of the section were satisfied and that, therefore, the provision did not operate so as to render the evidence of the unlawful importation of the heroin by Proebstl admissible at his trial. More particularly, the applicant contended that the written request of the AFP of 21 September 1994 that the ACS exempt from detailed scrutiny the then proposed importation of the heroin, did not satisfy all the requirements of s.15X(b)(i). Before dealing with the way in which the applicant put his case on this issue, it is desirable to set out the terms of the request which are as follows:

"REQUEST FOR EXEMPTION FROM DETAILED CUSTOMS SCRUTINY In accordance with Section D paragraph 7 of the Ministerial Agreement, signed 3 June 1987, between the Minister of Industry Technology and Commerce on behalf of the Australian Customs Service and the Special Minister of State on behalf of the Australian Federal Police and the National Crime Authority with respect to narcotic drug law enforcement, the Australian Federal Police requests that exemption from detailed Customs scrutiny be accorded in respect of a suspected importation of heroin that is likely to take place through Melbourne (Tullamarine) Airport between 14 September, 1994 and 30 September, 1994. The heroin will be carried in a case by Glenn Trevor PROEBSTL, born 19 February, 1963 an officer of the Intelligence and Drug Operations Division, Australian Federal Police, Melbourne who will be accompanied by an officer of the Thai Office of the Narcotic Control Board (ONCB). More precise details of the importation will be supplied to you as they become known. It is the intention of the Australian Federal Police to allow a controlled delivery of the heroin to take place in order to arrest the Australian based principals of this importation. Pursuant to the granting of this exemption, the Australian Federal Police accepts total responsibility for compliance with all Customs statutory requirements in respect of the above named, in accordance with the Ministerial Agreement. In accordance with Section E paragraph 1 of that Ministerial Agreement all relevant information/intelligence related to or deriving from this matter will be made available to the Australian Customs Service as soon as practicable."

173. It was the applicant's case that this request did not satisfy the requirements of s.15X(b)(i) in the following ways.

(a) Properly construed, the request was for the transfer of Customs control to the AFP and was, therefore, not a request that was contemplated by the section.

(b) Alternatively, if the request sought the relevant exemption, it did not do so (and did not purport to do so) "in accordance with the Agreement", because the Agreement deals with the request for transfer of Customs control and not with a request for exemption from relevant scrutiny.

(c) If, however, the request was made in accordance with the Agreement, it did not seek, as is required by s.15X(b)(i), that the goods be relevantly exempted while they were subject to the control of the ACS within the meaning of the Act.

(d) In order to come within s.15X, the request must be issued when the goods are subject to the control of the ACS. The request in question, however, was made when the heroin was in Thailand and, therefore, before it was subject to the control of the Customs.

179. Since the applicant's attack on the sufficiency of the request is based in part on his construction of the Agreement, it is convenient to examine at this stage its relevant parts and its operation. As its heading suggests, it is concerned with the orderly enforcement of narcotic drug law by three agencies that are involved in that operation, namely, the AFP, the ACS and the National Crimes Authority ("the NCA"). In general terms, the Agreement seeks to allocate amongst the three agencies separate responsibilities relating to drug enforcement in order to maximise the expertise of each and to avoid duplication of effort and other inefficiencies that might otherwise flow from the overlapping activities that might be pursued by them in respect of the detection, investigation and prosecution of drug related offences, particularly those arising from the illegal importation of narcotic drugs. For present purposes, it is not necessary to consider the role of the NCA under the Agreement; it is sufficient to refer briefly to the allocation by the Agreement of drug law enforcement functions and responsibilities as between the ACS and the AFP.

182. The Agreement is divided into a number of sections. So far as is relevant, Section A provides that primary responsibility for drug law enforcement within the Commonwealth is vested in the AFP, while the ACS is given the responsibility for detecting and intercepting drugs at the "Customs Barrier". Consistently with this policy Section B provides that the AFP is to have responsibility for all decisions in respect of drug seizures and arrests at the Customs Barrier and any resulting prosecutions, while the ACS is to be responsible for liaising with the AFP and informing it of relevant drug related matters occurring at the Customs Barrier. Section C is essentially concerned with the role of the ACS as a Customs organisation which operates under the Act; the section does not deal with drug law enforcement. In that context there is recognition in para.1 that all persons, goods, ships and aircraft arriving from or departing for overseas are subject to Customs control, that this term "includes the full range of legislative powers and responsibilities of the [ACS]" and that such control "is exercised at the Customs Barrier". It also deals with the location where "Barrier Control" is normally exercised, namely, at ports and airports and other places in Australia as well as all points within the 12 nautical mile limit where, inter alia, persons and goods arrive from or depart for overseas.

185. Section D is concerned with some of the practical aspects of the operational relationship between the ACS and the AFP in relation to the unlawful importation of drugs. It is headed "Drug Detection by ACS - Operational Relationship". The section is predicated upon the ACS performing on a day-to-day basis, the role of drug detection at the Customs Barrier and passing on relevant information in relation to such activity to the AFP which is to make the ultimate decision as to whether and how the investigation should proceed. That is essentially the effect of paras.1-6 of Section D. Thus, this aspect of the scheme seems to contemplate that the AFP is to have the overall responsibility for drug law enforcement and the ACS is to have the initial task of conducting day-to-day drug detection work at the Customs Barrier. Paragraphs 7 and 8, on the other hand, seem to provide the mechanism whereby the AFP effectively replaces the ACS in relation to drug detection work at the Customs Barrier. These provisions are in the following terms:

"7. A request, in an agreed format, for the transfer of Customs control from the Australian Customs Service to the Australian Federal Police or the National Crime Authority shall be made to the Australian Customs Service where certain persons, goods, ships or aircrafts, suspected or known to be carrying or having an involvement in drugs, are required by the Australian Federal Police or the National Crime Authority to be exempted from detailed Customs scrutiny and control and in cases where there is to be substitution of imported goods. 8. Upon acceptance by the Australian Customs Service of such a request, total responsibility for compliance with all Customs statutory requirements shall rest with the Australian Federal Police, or the National Crime Authority as the case may be.

* Such exemptions do not exclude the stipulated persons, goods, ships or aircrafts from mandatory Customs requirements.

* An obligation is placed upon the Australian Federal Police and the National Crime Authority to refer any Customs offences, other than narcotic related matters, back to the Australian Customs Service as soon as practicable."

191. Once the AFP has decided to replace the ACS in relation to such drug detection work at the Customs Barrier, it would follow almost as a matter of course that it would not want the ACS to subject the goods in question to detailed scrutiny and thereby risk cutting across the AFP investigation. Put another way, any requirement by the AFP that the goods in question be accorded the relevant exemption, would go hand in hand with its taking the responsibility from the ACS in relation to drug detection work at the Customs Barrier in respect of those goods. The reference in para.7 to "the transfer of Customs control" is, in our view, a reference to a transfer from the ACS to the AFP of the practical, but not the legal, control over relevant goods at the Customs Barrier. No doubt such practical control is required by the AFP to enable it to conduct its drug detection and investigative work at the Customs Barrier in place of the ACS. Under the Agreement, such control is "transferred" by the ACS granting to the AFP the exemption sought by it. But para.7 is not concerned with the ACS transferring to the AFP all its statutory responsibilities and powers in relation to the goods in question having regard to the circumstances and matters to which we now turn. First, there would be no point to the AFP seeking a transfer, or in the ACS purporting to transfer to the AFP, all its statutory powers and duties in respect of goods or persons for the purpose of enabling it to perform effectively its functions at the Customs Barrier. It would be sufficient for the purposes of the AFP if it procures the situation whereby its work and activities there are free from the risk that the narcotic goods or the relevant person might be subjected to detailed scrutiny by the ACS. This is seen to be best achieved by the ACS granting the relevant exemption. Secondly, notwithstanding its confusing language, para.7 is, in essence, a machinery provision which facilitates the AFP's seeking exemptions from detailed scrutiny in relation to certain goods. To that end, it provides that the request is to be made "in an agreed format" and, according to the only evidence at the trial on this subject, the agreed format was that which is reflected in the request of 21 September, namely, a request for exemption from detailed scrutiny. Furthermore, it is plain that the ACS cannot divest itself of its statutory powers and responsibilities (Birkdale District Electric Supply Co. v. Southport Corporation [1926] A.C. 355 at 364; Municipal Council of Sydney v. Hermann (1948) 49 S.R.(N.S.W.) 46 at 52; Attorney General (N.S.W.) v. Quinn (1990) 170 C.L.R. 1 at 17, per Mason, C.J.). Thus, it seems clear enough that the real function of para.7 is to facilitate the AFP procuring an exemption of goods from detailed scrutiny by the ACS. As we have said, the provision is not concerned to facilitate the handing over to the AFP all of the ACS's statutory control over the goods in question, only the practical control.

194. Similar considerations apply to the operation of para.8 of the Agreement. The takeover by the AFP of "total responsibility for compliance with all Custom**'s** statutory requirements" under that paragraph cannot be taken to mean that a transfer of those responsibilities to the AFP has been thereby effected to the exclusion of the ACS. The ultimate obligation for complying with the responsibilities imposed on it by the Act remains with the ACS notwithstanding that, as between it and the AFP, the latter has assumed responsibility for such compliance.

197. We now turn to examine the applicant's four principal submissions made in support of his principal contention that all the factual preconditions to the operation of s.15X have not been established by the prosecution. It will be recalled that the first submission was that the request of 21 September 1994 did not seek the relevant exemption contemplated by s.15X(b)(i); rather what was sought by the request was the transfer of Customs control as is contemplated by para.7 of the Agreement. Thus, it was said, the request did not fall within s.15X(b)(i) and hence, that factual precondition to the operation of that section was not satisfied. In support of the claim that the request was for the transfer of Customs control, the applicant's counsel pointed to the opening words of the request, namely, that it was being made "in accordance with Section D paragraph 7 of the ... Agreement" which, of course, speaks of a request for the "transfer of Customs control". He argued that this showed that what was requested was a transfer of Customs control and that s.15X(b)(i) simply did not operate in relation to such a request. He emphasised that there is an asymmetry between the provisions of s.15X(b)(i) which is concerned with the exemption of narcotic goods from relevant scrutiny and para.7 of the Agreement which deals with the request for the transfer of Customs control.

200. In our view, the answer to this submission is that on a plain reading of the request of 21 September, it seeks an exemption of certain goods from detailed scrutiny by officers of the ACS. It is headed "Request for Exemption from Detailed Customs Scrutiny" and in terms seeks an "exemption from detailed Customs scrutiny" of the importation of the heroin that was likely to occur at the place and during the period described in the document. In our opinion, such a request clearly falls within the terms of s.15X(b)(i). We mention for completeness' sake that we doubt whether there is any relevant asymmetry between the section and para.7. Each is concerned, inter alia, with a requirement for exemption of certain goods and persons from detailed scrutiny by officers of the ACS. In that respect at least there is no imbalance between the two provisions. Any asymmetry is more apparent than real; a requirement for exemption and a request for transfer of control are but two sides of the one coin. If the AFP requires exemption for a particular importation, then a request in the "agreed format" will achieve both effective control and the desired exemption.

203. The applicant's alternative submission was that, if the request of 21 September was that the ACS grant the relevant exemption, such a request was not made "in accordance with the ... Agreement" as is required by s.15X(b)(i). It was contended that the relevant part of the Agreement, namely, para.7, is concerned with a request for the transfer of Customs control; it does not deal with what was sought by the request of 21 September, namely, an exemption from detailed scrutiny by the ACS of an importation involving narcotic goods by Proebstl. It follows, so it was argued, that the request of 21 September was not made nor was it purported to be made "in accordance with the ... Agreement" as is required by s.15X(b)(i).

206. In our view, however, the request of 21 September was clearly made "in accordance with the ... Agreement" within the meaning of the section. For reasons given earlier, para.7 is essentially concerned with the request by the AFP to the ACS that certain goods or persons be exempted from detailed scrutiny and control by officers of the ACS. In particular, the agreed format by which a request is to be made under that paragraph is that which is reflected in the AFP's request of 21 September 1994 relating to the then proposed heroin importation by Proebstl. Although the agreed format did not seek, as might be expected from para.7, a transfer of control, it sought that which "control" was desired to effectuate, namely, exemption from detailed scrutiny. It follows, therefore, that the request in question was made "in accordance with ... the Agreement" for the purposes of s.15X(b)(i). Doubtless in its form para.7 makes a requirement for exemption a condition precedent to the making of a request for transfer of control ("where certain persons etc. ... are required by the AFP etc"), but the transfer of control is clearly intended to achieve only that which is required and desired. The formalities of the paragraph's grammatical structure should therefore give way to its plain meaning, as the "agreed format" has recognised. We note for completeness' sake that we have accepted for the purposes of this analysis the submission made on behalf of the applicant namely, that "purported" in s.15X(b)(i) does not reduce the requirement of the section that the request must, in substance, have the effect of being made in accordance with the Agreement. For the reasons already given, it is our view that the request was made in accordance with the Agreement.

209. We now turn to the applicant's third submission, namely, that if the request was made in accordance with the Agreement, it did not seek, as is required by s.15X(b)(i), that the heroin be exempted from scrutiny "while [it is] subject to the control of the [ACS]" within the meaning of the Customs Act. It was contended that the request sought an exemption from scrutiny when the goods would be subject to the control of the AFP and not the ACS. This was said to follow from the fact that under the Agreement (pursuant to which the request was made), once a request is accepted, there is a transfer of effective control of the subject goods at the Customs Barrier from the ACS to the AFP. But it is plain that the "control" of which s.15X(b)(i) speaks is the control within the meaning of the Customs Act. Such control of the goods by Customs "comprehends the totality of the rights which the [Customs Act] confers upon [the ACS]" (Goben Pty. Ltd. v. The Chief Executive Officer of Customs (No.2) [1996] FCA 1657; (1996) 68 F.C.R. 301 at 304 per Davies, J. and see on appeal (1997) 74 F.C.R. 36 at 52 per Beaumont, J., at 57-8 per Hill, J. and 59-60 per Lehane, J.). It is clear in our view that neither the agreement by the ACS to exempt the goods from detailed scrutiny nor the undertaking by the AFP under para.8 of the responsibility for compliance with the ACS statutory requirements, would deprive the ACS of control of the goods for the purposes of the Customs Act. For reasons we have given, the term "Customs control" in para.7 means practical as distinct from legal control in respect of goods at the Customs Barrier. Moreover, the powers and responsibilities of the ACS under the Customs Act in relation to the goods - that is, the legal control over them - cannot be assigned to the AFP. Thus, during the operation of the exemption, the goods will remain subject to the control of the ACS within the meaning of the Customs Act notwithstanding that the ACS will not be able to subject them to detailed scrutiny and notwithstanding that they will be in the physical possession and control of the AFP through Proebstl. As Davies, J. said in Goben at 308, "it is not inconsistent with the concept of Customs control that goods, subject to such control, should be in the possession, custody or control of others. Section 35A of the Customs Act has this precise fact as its foundation."

212. There are, in any event, a number of factors that confirm that the request of 21 September sought the relevant exemption while the goods were to be subject to the control of the ACS. First, it recognised by necessary implication that the exemption will operate while the goods are subject to such control. This follows from the fact that it was the ACS which was asked to give the exemption. There would have been no point to the AFP's seeking an exemption from the ACS if it was considered that relevant control would pass to the AFP immediately upon acceptance of the request. If that were the case, the AFP would merely direct the ACS not to examine the goods. Secondly, the request only sought that the goods be exempt from detailed scrutiny, thereby recognising that the ACS may undertake at least some scrutiny of them pursuant to its statutory powers. Next, the last paragraph of the request, by which the AFP effectively undertook to make available to the ACS as soon as practicable relevant information relating to the importation, recognised that throughout the relevant period, including the period of exemption, the goods will be subject to the statutory control of the ACS in the sense that the ultimate control and responsibility under the Customs Act in relation to them will remain with it.

215. In the circumstances, therefore, we are of the opinion that this precondition to the operation of s.15X has been satisfied.

218. We similarly reject the applicant's fourth principal submission that the request was premature because it was made before the goods came under the control of the ACS. In our view, there is nothing in s.15X (or in the Agreement) which limits the making of the relevant request to a period when the goods in respect of which an exemption is sought, are under the control of the Customs. It is obvious that exemption from detailed scrutiny by the ACS can literally occur only when the goods are physically with or near ACS officers or where they have an opportunity to gain access to them. But it does not follow from that that a request for a relevant exemption cannot be made and accepted prospectively. There is no legal or practical consideration that we can think of that would require such a limitation to be placed on the making of a request for exemption. Indeed, in our view, the opposite is the case. If a request could not be issued until the goods or persons are under the control of the ACS, there would be many situations where the goods or persons would have passed through Customs before the request for exemption could even be considered by the ACS and in those circumstances, s.15X would be ineffective. A construction of the section (or the Agreement) along the lines contended for by the applicant would give the section only a limited operation. As we have said, we see no proper basis for such a construction of the section.

221. In the circumstances therefore, we are of the opinion that this ground must fail.

225. The second ground argued asserted that conversations between, variously, the applicant, Lu and Termsrisuk recorded by a number of listening devices, were recorded pursuant to a warrant which was invalid and defective, with the consequence that the evidence of these conversations should not have been admitted into evidence. The argument raises two issues, the first being whether the warrant failed to comply with the requirements of s.219B of the Customs Act and secondly whether any such want of compliance or illegality was of a kind which required the exclusion of evidence obtained pursuant to the warrant by reason of public policy or unfairness.

228. Section 219B was introduced as part of Division 1A of Part XII of the Act in 1979. For present purposes the critical provision is s.219B(5) which read at the relevant time as follows:

"Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorising the use of a listening device in relation to a particular person, the Judge is satisfied, by information on oath, that: (a) the person has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a narcotics offence; and (b) the use by officials of the agency of a listening device to listen to or record words spoken by or to that person will, or is likely to, assist officials of the agency in or in connection with; (i) inquiries that are being made in relation to a narcotics offence that the person has committed or is reasonably suspected of having committed; or (ii) if there are circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence - inquiries that are being made in relation to the likely commission, by that person, of that offence; the Judge may, by warrant under his hand in accordance with the prescribed form, authorise officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person, and such a warrant may authorise officials of the agency to enter any premises in which the person is, or is likely to be, for the purpose of installing, maintaining, using or recovering a listening device or part of a listening device." (Emphasis added.)

232. Other provisions in Division 1A may be seen here to be relevant. Under s.219B(10) warrants may be granted for periods of up to six months. The expressions "listening device" and "narcotics offence" are defined in s.219A in terms which do not require further discussion except to say that no dispute was raised as to whether the devices here in question and the offences suspected came within those definitions.

235. It is important to notice that the sections in this Division, including s.219B, which give law enforcement officers powers to obtain warrants for the use of listening devices, make clear that they were perceived by the legislature as interfering to such an extent with what were seen to be a suspect's, and other persons', rights to privacy that additional and explicit protection was given by those sections. For example, in s.219B(1) it is stated:

"It is unlawful for an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics enquiries that are being made by officials of the agency, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless: (a) he is the speaker of the words or is a person, or is included in a class or group of persons by whom the speaker of the words intends, or should reasonably expect, the words to be heard; (b) not being a person permitted to listen to or record the words under paragraph (a), he does so with the consent express or implied, of such a person; or (c) he does so in accordance with the warrant issued to the agency under this Division."

239. Sub-section (3) imposes a duty on the chief officer of each agency "to take reasonable steps to ensure" that s.219B(1) is not contravened. By s.219D powers conferred by a warrant are to be exercised only by the chief officer of the relevant law enforcement agency or by officials "approved for the purposes of that warrant" by the chief officer or by an "authorised official" appointed by the chief officer for the purposes of the section. Section 219F provides, with a penalty of up to three years' gaol, that persons "shall not divulge or communicate to another person, or make use of or record, any information obtained by using a listening device ..., being information that has come to his knowledge ... by reason of his being ... an official of the agency ... except for the purposes of those inquiries", subject to certain very limited exceptions set out in sub-ss.(2) to (4). Section 219G requires records made "by virtue of [any] warrant ... under this Division" to be destroyed when they are no longer likely to assist in current inquiries or proceedings. The chief officer is obliged to submit to the Minister a copy of each warrant issued and a report as to its use: s.219K.

242. In the present case a warrant was obtained for the purpose of the AFP's inquiries as to the suspected importation of the heroin in fact being brought in by Proebstl and Termsrisuk, and more particularly to obtain evidence as to the persons concerned in that importation who might, on its arrival in this country, seek to obtain possession of the heroin from the two "couriers". The warrant of the Federal Court, took the following form (omitting presently irrelevant provisions):

"WHEREAS application has been made to me ... for the issue of a warrant under section 219B of [the Customs] Act to the Australian Federal Police authorising the use of a listening device within the meaning of Division IA of Part XII of that Act in relation to a particular person, namely a person who obtains or seeks to obtain possession of a bag described as an 'ELITE' brand, soft-sided, carry bag on casters, black in colour with brown trimming, containing 24 blocks of compressed white powder each weighing approximately 350gms, measuring 14cm x 3cm x 9cm approximately, and wrapped in clear cellophane paper stamped with a 'UOGLOBE' marking. The total consignment of 24 blocks contain a total of 480gms of heroin approximately. AND WHEREAS I, the Hon. Marcus Richard Einfeld, a judge of the Federal Court of Australia, am satisfied by information on oath, that: (a) a person or persons who obtains or seeks to obtain possession of a bag described as an 'ELITE' brand ... containing 24 blocks of compressed white power ... is suspected on reasonable grounds of being likely to commit a narcotics offence within the meaning of that Division; and (b) the use by officials of the Australian Federal Police ... of such listening device to listen to or record words spoken by or to the last-mentioned person will, or is likely to, assist such officials in or in connection with enquiries that are being made in relation to the likely commission, by that person, of such a narcotics offence, I HEREBY AUTHORISE you to use a listening device within the meaning of that Division for the purpose of listening to or recording words spoken by, to or in the presence of a person or persons who obtains or seeks to obtain possession of a bag described [in precisely the same terms as appear in the first paragraph], anywhere in Australia subject to the following conditions or restrictions: AND I FURTHER AUTHORISE you to enter on any premises in which a person who obtains or seeks to obtain possession of a bag described [in exactly the same terms again] is, or is likely to be, for the purposes of installing, maintaining, using or recovering such a listening device ... and such entry may be made at any time of the day or night without permission first being sought or demand first being made; AND this warrant may remain in force for the period of thirty days commencing on 23rd day of September 1994." (Emphasis added.)

246. The short point is whether the warrant has on its face sufficiently described "a particular person" within the meaning of s.219B. The applicant argues that the attempt to particularise the offender by giving the description "who obtains or seeks to obtain possession of a bag" as therein identified is far too general, for it was or might have been capable of describing a number of people, some only of whom might fairly be said to have been suspected of being likely to commit a narcotics offence. Moreover, it was said that, because the description was capable of referring to more than one person, it was invalid inasmuch as the language of the section was intended to limit such a warrant to one referring to a singular and identified individual, not a number of persons. The language of s.219B(5), so it was said, shows that s.23(b) of the Acts Interpretation Act 1901 was not intended to apply so as to permit the singular expression to encompass the plural, its language evidencing the necessary "contrary intention". Finally, and most importantly, the warrant was said to be a "general" warrant of a kind looked on with disfavour by the common law inasmuch as it permitted an invasion of privacy of a kind which the Division itself appeared astute to avoid, except in so far as any invasion pursuant to the Division made absolutely necessary.

249. The respondent contended, on the other hand, that, whatever be the consequences and effect in other circumstances of the general principles called in aid by the applicant, the language of the section was sufficiently clear to permit the suspected person to be identified as a "particular" person by reference, not only to name and address and the like, but also to characteristics or activities which would enable the authorised officials to identify one or more persons with accuracy. Here, having regard to the accurate description of the bag and its proposed contents, it was said that there could be no doubt as to what persons were said to be the "particular" persons described in the warrant.

252. In our opinion, upon a proper construction of the section and its evident purposes, the person or persons suspected were clearly not sufficiently identified for one or more of them to satisfy the expression "a particular person" within the meaning of s.219B(5). At the very least, even assuming that a person or persons can be identified by characteristics other than their names and addresses or occupations, there was here no identification of any individual, only the identification of the type of act or acts which might on their occurrence purport to bring an individual within the purview of the warrant. The relevant authority, appearing after the recitals, merely refers to "a person or persons" who obtain or seek to obtain possession of the described bag. Over the warrant's 28 day period of operation that could refer not merely to a first or second person who might collect the bag from the "couriers" but a series of persons who might happen to come into the possession of the bag, including entirely innocent persons such as porters and taxi-drivers. One may concede that the persons said to be suspected in recital (a) are persons who would obtain possession with knowledge that the intended and described contents of the carry bag included heroin or at least some narcotic substance, inasmuch as they were suspected of "being likely to commit a narcotics offence", but the later description in the substantive part of the warrant, the authority, is not expressed in terms of any such suspicion. There could be no certainty that any of the authorised officials would have sufficient knowledge of the facts giving rise to the suspicion so that, on the face of the authority given in the warrant, they might act to use a device to listen to any one or more persons who sought to obtain possession of the bag whether or not parties to the suspected offences. Apart from the difficulty of identifying persons by reference not only to their obtaining the bag but also to their obtaining it with knowledge of its contents, we do not think it appropriate to read the relevant part of the warrant, the authority to use the listening device, as confined by reference to the suspicion held which was recited in paragraph (a) as a matter upon which the judge had been relevantly satisfied. That, however, is merely to attempt to interpret the warrant as it was issued, for in truth the "particular person" described in the warrant ought to be identical to the person who is suspected within the terms of s.219B(5). In our opinion, in the ordinary case, it would be the very person suspected who should be appropriately described in unambiguous terms in the warrant, even though his description may in certain circumstances have to depend on matters other than address or occupation. Sub-section (5) does not authorise the use, except incidentally, of a listening device in relation to persons who are not suspected of having committed or being likely to commit narcotics offences. This may be contrasted with the provision contained in s.219B(7) where a warrant may be obtained for use of a listening device in relation to "particular premises" where the judge has only to be satisfied that the premises have been or are likely to be used in connection with the commission of a narcotics offence by any persons and by the sub-section's terms the device may be used in such defined premises "for the purpose of listening to or recording words spoken by or to any person while the person is in those premises.

255. These difficulties of description, however, serve to point to a more fundamental defect in the warrant. From the seventeenth and eighteenth centuries, at the latest, the common law has consistently expressed disapproval of and refused to enforce "general" warrants. At that time the principal warrants recognised by the law were warrants for arrest and search warrants but we can see no reason, as indeed subsequent courts have observed, to confine the restrictions there imposed to warrants of those kinds, except in so far as the language of any authorising statute excludes the operation of the principle.

258. The significance of the two leading cases decided in the middle of the eighteenth century, namely Money v. Leach [1746] EngR 362; (1765) 1 Black. W. 555; 96 E.R. 320; (sub. nom. Leach v. Money) [1765] EngR 11; 19 State Tr 1001 and Entick v. Carrington [1765] EWHC J98; (1765) 2 Wils. K.B. 275; 95 E.R. 807; 19 State Tr 1029, is that they have been consistently cited by common law courts both in England and this country as supporting propositions that warrants, whether for arrest, search or the like, should be carefully construed and that what have come to be known as "general" warrants are not to be enforced, unless there be specific statutory authorisation for the issue of warrants of that kind. It is not necessary here to examine the circumstances which induced the Earl of Halifax to authorise the issue of a series of warrants purporting to give the King's Messengers powers variously to make arrests or searches arising out of what were alleged to be a series of seditious libels published at the time by John Wilkes and others. Nor is it necessary to examine precisely what was decided in each case or what led to what was at the time thought to be at least as significant, namely, a series of resolutions by the House of Commons including "a declaration, that general warrants were universally illegal, except in cases provided for by Act of Parliament": see Journal of the Commons 22nd and 25th April 1766. See also the notes on the subject by Hargrave, the editor of the State Trials, in Vol. 19 at pp.1028 and 1074-1075. Although this conclusion appears consistent with what Sir Matthew Hale had stated nearly 100 years earlier when writing his History of the Pleas of the Crown shortly before his death in 1676 (the work was published first in 1736), there seems no doubt thereafter that general warrants were treated not merely as ineffective but improper: see 1800 ed. Vol. 1 at p.580 and Vol. 2 at pp.111-112.

261. That the same view has been taken in Australia can be seen from a decision reported in the first volume of the Commonwealth Law Reports, namely, MacDonald v. Beare [1904] HCA 22; (1904) 1 C.L.R. 513. There Griffith, C.J. said (at 522) on behalf of the Court, after referring to the resolutions of the House of Commons (incorrectly dated as having been passed in 1756, an error seemingly perpetuated from the 8th ed. of Hawkins: Pleas of the Crown Vol. II p.130 fn.):

"In the case of Money v. Leach ... a case of trespass and false imprisonment for acts done under a general warrant, the question arose whether such warrants were valid. The marginal note is 'general warrants are illegal and void'. ... The warrant in that case was to search for the authors, printers and publishers of a certain seditious and treasonable libel, and to apprehend and seize them together with their papers, not for the apprehension of any particular person or to search any particular place. It was held to be bad on the ground that it was a general warrant."

Then, after referring to two later textbooks disapproving general warrants, Burns' Justice of the Peace p.1131 and Hawkins at p.130, the Chief Justice continued (at 522-523):

"There is therefore no doubt, regarding the matter historically as to what was the meaning of the terms 'special warrant', when it was first used in England; that it meant a warrant, which did not purport to authorise the person to whom it was addressed to search for and arrest any person whom he thought fit, or to search any place that he thought fit, that was limited to some particular person or to some particular place, sometimes the term 'limited warrant' was used in the same sense in contradistinction to 'general warrant'. There is no doubt that, the attention of the people of England having been drawn by these well known cases to this distinction, between general and special warrants, subsequent Acts of Parliament use the term 'special warrant' in that sense ...". (Emphases added.)

267. Having regard to the fact that it has been argued that the description given in the present warrant was sufficient inasmuch as it described the activity of the persons whose conversations were sought to be overheard by use of listening devices, it is important to notice what was characterised as a general warrant in one of those leading cases, namely Money v. Leach. As may best be seen from p.1004 in 19 State Tr the warrant issued by the Earl of Halifax to the Messengers authorised and required them "to make strict and diligent search for the said authors, printers and publishers of the aforesaid seditious libel, entitled 'the North Briton, No. 45 April 23rd 1763'; and them or any of them having found, to apprehend and seize, together with their papers, and to bring in safe custody before the said Earl, to be examined concerning the premises and to be further dealt with according to law ...". (The word "said" preceding "authors" etc. did not refer back to any named person.) The vice perceived by Lord Mansfield, as concurred in by Wilmot, Yates and Aston, JJ., was that it did not identify any person but left it to those executing the warrants to determine whether the persons arrested satisfied the description of authors, printers or publishers of the particular alleged seditious libel which was itself identified by reference to the issue of the North Briton newspaper: cf. here the description of the bag. That seems to us to be effectively the same lack of particularity which the present warrant suffered from and why, unless there be statutory or other authority to the contrary, we would consider this warrant bad as likewise being a general warrant which insufficiently identified the persons who were intended to be made subject to its operation.

270. Moreover, having regard to the course of authority both in England and this country, it would be well known to those responsible for drafting legislation of this kind that warrants would be construed in this way. Although there is no relevant material in the explanatory memorandum or in the Parliamentary debates when this section was added in 1979, this course of authority seems to us to suggest that the word "particular" was used in subs.(5), and for that matter in subs.(7), in order to ensure that the warrants issued under s.219B would not be general warrants but would only be sought and issued in circumstances where a listening device was thought necessary in order to listen to a specific "particular" person's conversation.

273. One may therefore ask whether the course of more recent authority would suggest that this power to issue warrants should be more generously interpreted. In our opinion the very opposite conclusion should be drawn. Entick v. Carrington has been cited with approval on numerous occasions and Leach v. Money at least once, and the principles reiterated in emphatic terms. Moreover, notwithstanding that it might well be concluded from a reading of those earlier decisions that the primary concern, at least so far as search warrants were concerned, was protection of property, a broader base has now been ascribed to the principles, in particular, one including and emphasising the protection of privacy. For example, in what might be considered the first leading case on these subjects in recent times, at least in relation to search warrants, a bench consisting of all members of the High Court expressed themselves as follows in George v. Rockett [1990] HCA 26; (1990) 170 C.L.R. 104 at 110:

"The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, a History of English Law, Vol. 10 (1938), pp.668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v. Money; Entick v. Carrington. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick at p.1066. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986) pp.1-2."

277. The "shift" there referred to may be traced, in this country at least, to the description by Brennan, J. of rights to private property in his dissenting judgment in Halliday v. Nevill [1984] HCA 80; (1984) 155 C.L.R. 1 where, in discussing these concepts and after having cited (at 10) Entick v. Carrington 19 State Tr at 1066, he said that the common law has "long protected the privacy of the home ...",: at 12. It is interesting to note that when a claim for trespass arising out of the entry of police onto private premises again came before the High Court, it was the dissenting judgment of Brennan, J. which was cited in two judgments given by the members of the Court: Plenty v. Dillon [1991] HCA 5; (1991) 171 C.L.R. 635 at 639 and 647. Privacy was referred to in the concurring judgment of Gaudron and McHugh, JJ. at 647 in these terms:

"The policy of the law is to protect the possession of property and the privacy and security of its occupier ...".

See also Environment Protection Authority v. Caltex Refining Co. Pty. Ltd. [1993] HCA 74; (1993) 178 C.L.R. 477 at 551 per McHugh, J., referring to the passage quoted above from George v. Rockett.

282. The issue of privacy was next looked at in general terms in Coco v. The Queen [1994] HCA 15; (1994) 179 C.L.R. 427. Entick v. Carrington was there again referred to with approval by the majority (at 435) and by Toohey, J. (at 454). At issue was a warrant issued pursuant to the Queensland Invasion of Privacy Act 1971, but in question were also powers given pursuant to the Australian Federal Police Act 1979. A critical question was whether the relevant section of the Queensland Act gave the police power, by reason of the issue of a warrant, to enter upon private premises. On this it was held there was no such right, upon the proper construction of the statute. The issue of privacy was emphasised but it should be acknowledged that it was necessarily important because the statute itself required that "the extent to which the privacy of any person is likely to be interfered with" should be taken into account. All members of the Court expressed themselves in terms which emphasised the need, in legislation of this kind, to find clear and express authority for the invasion of the rights of the individual. The matter was canvassed in detail and in forceful terms in the judgment of Mason, C.J., Brennan, Gaudron and McHugh, JJ. at pp.435-438 but for present purposes it is sufficient to take the following brief exposition of the relevant principle from the concurring judgment of Deane and Dawson, JJ. at 446:

"It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear."

If significance should be seen in the choice of specific words, the judgment of the majority was expressed in arguably broader terms inasmuch as it referred to the "abrogation or curtailment of a fundamental right, freedom or immunity": at 437.

287. The observations in George v. Rockett as to the nature of search warrants and "the need to protect the individual from arbitrary invasion of his privacy and property" were referred to again briefly, but with approval, in Jacobsen v. Rogers [1995] HCA 6; (1995) 182 C.L.R. 572 at 584 per Mason, C.J., Deane, Dawson, Toohey and Gaudron, JJ. That same year the High Court examined the nature of warrants under the Telecommunications (Interception) Act 1979 and the extent to which they might be challenged: see Grollo v. Palmer [1995] HCA 26; (1995) 184 C.L.R. 348. In considering the nature of the power to issue warrants the majority (Brennan, C.J., Deane, Dawson and Toohey, JJ.) (at 359) considered Entick v. Carrington and George v. Rockett and then observed that, although the duty to exercise the power to issue warrants must be exercised judicially, "that means only that the power must be exercised without bias and fairly weighing the competing considerations of privacy and private property on the one hand and law enforcement on the other": at 359-360. They later referred (at 367) to their belief that it was "precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime" that "impartial" authorities should be authorised to control the grant of such warrants, because they were "accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy and property (both real and personal) ...". See also per McHugh, J. (dissenting) at 384.

290. Most recently, members of the High Court made reference to their concerns as to privacy in relation to the issue of warrants when considering those issued pursuant to the Listening Devices Act 1969 of this State. In Ousley v. The Queen (1997) 192 C.L.R. 69, a number of issues were raised relating to the issue of warrants and the form that they should take, including the need for such warrants to show the basis of jurisdiction on their face. The question of privacy, however, was not seen as central to the resolution of the issues in the case. Gaudron, J. (at 95) noted the undesirability of warrants which are "issued otherwise than in strict accordance with statutory requirements", citing the passage from George v. Rockett referred to above.

293. McHugh, J. examined the matter in greater detail in Ousley because of the manner in which he chose to deal with the need to disclose jurisdiction on the face of a warrant. Thus he expressed this view (at 105):

"The common law courts, anxious to protect the liberty and privacy of a citizen, have always insisted that those who would invade the liberty or privacy of the citizen must unambiguously show that they have authority to do so."

Having referred to the history of warrants in common law courts in some detail, with references to Hale and Entick v. Carrington, and the condemnation of the use of general warrants, he reiterated (at 106) that: "The common law has met this challenge to the liberty and privacy of the subject by insisting that, subject to a legislative direction to the contrary, a warrant is invalid unless it meets certain conditions." His Honour there noted that there were a number of matters which, in the case of warrants issued by a subordinate authority, rendered them bad for failure to set out a number of matters relating to jurisdiction such as a failure to identity an offence, the object of the search, or, in the case of search warrants, a failure to specify precisely the place to be searched: see at 107-108. However, his Honour pointed out that the warrants there in question, as are the warrants in the present case, were issued by judges of a superior court, so that there ought to be a presumption of regularity in relation to their issue, unless the contrary can be shown: see at 108-109. In considering the extent to which it is necessary that there be a recital of satisfaction as to the matters set out in the statute, McHugh, J. emphasised two matters. First he referred (at 111) to the fact that listening device warrants differ from search warrants "because the execution of the former is by way of covert installation of the listening device. Its installation is intended to go undetected by the person against whom or against whose interests the warrant is executed." Therefore he would see that, although a requirement for disclosure of jurisdiction might easily be understood in relation to search warrants, "the need for such a requirement is less clear in the case of listening device warrants, which are not presented to affected persons prior to execution": at 112. (It may be observed that some listening warrants, at least, might on occasions have to be shown to others, so that, with great respect, the need to avoid invasions of rights of privacy, again referred to at 112, might for that limited purpose be the better satisfied by ensuring that warrants were confined within their common law and statutory limitations.)

298. Secondly, McHugh, J. pointed out that a listening device "does not necessarily authorise what would otherwise amount to tortious conduct" (at 112), but, again with the greatest of respect, we are not sure how far that would deny the need for strictness. Undoubtedly, as was pointed out in the judgment, listening devices may be installed without committing a trespass to land, but, as in the present case, there may also be a trespass to goods or some other act committed or contemplated which would render the recording illegal unless otherwise authorised. Moreover, as his Honour earlier pointed out (at 99), a warrant is a document authorising the person "to do some act which would otherwise be unlawful". If the activity not be tortious or otherwise unlawful, the need for a warrant would, with respect, be unnecessary for the particular activity could continue without warrant or other authorisation. The assumption in the cases to which we have referred would appear to be that invasions of privacy are now, at least in the broadest of senses, illegal so that specific authorisations are needed for police and other law enforcement officers. Even if that were not so, each of the statutes referred to which have dealt with listening devices, as was the Act considered in Ousley and is also the present provision, are structured with the object of making the recording and use of all private conversations unlawful unless the very stringent conditions of the particular statute are satisfied. It is here unnecessary to examine the extent to which eavesdropping remains a common law offence and whether the use of listening devices would otherwise offend against the law, for the legislative scheme which sets up the relevant powers to install listening devices in this case, as in Ousley, makes clear the illegality of overhearing and using in evidence conversations which are not heard or recorded in accordance with a warrant authorised by the terms of the statute or are otherwise excepted.

301. What was said by McHugh, J. in Ousley as to the need for the basis of jurisdiction to be expressed on the face of a listening device warrant under the Victorian Act is not here strictly of relevance. The present case involves the use of a device authorised by a warrant which on its face, according to our interpretation of the legislation, exceeds the powers given in that behalf by s.219B. In this case the warrant must state the subject matter of its operation and express the "particular person" whose conversations are authorised to be overheard and recorded by the warrant here challenged. There seems nothing in his Honour's judgment which would require the words "particular person" to be given a wider, rather than a narrower, construction consistent with the need to ensure the protection of privacy so consistently recognised in each of the other High Court judgments to which we have referred.

304. In Ousley Gummow, J. likewise expressed himself in terms which suggest that listening device warrants ought to be viewed differently from search warrants and the like, in language not entirely different from that used by McHugh, J.: see at 118-120. Although emphasising that in each case it is a matter of determining the operation of the legislation in accordance with "its proper construction" and that that may result in the principle being disregarded (at 120; see also at 118) it is also clear that his Honour thought that that process of interpretation is one in which one should give "proper weight to the precept that a legislative intention to interfere with fundamental rights by the commission of what otherwise would be tortious or criminal acts 'must be clearly manifested by unmistakable and unambiguous language'": at 118, citing Coco at 437. For reasons we have already stated, we would see the use of warrants of the kind presently under consideration as necessarily authorising, and intended to authorise, acts which would otherwise be unlawful, so that for the purposes of determining the scope of the present warrant no assumption should be made that the legislature intended to qualify the rights of privacy to any greater extent than is clearly evidenced by the language of the section.

307. The only other judgment in Ousley, that of Kirby, J., was a dissenting judgment, taking a significantly different approach to that of the majority. His Honour referred to and discussed in detail the common law's attitude to "the enjoyment of an individual's property and privacy" and explicitly noted the observations in George v. Rockett that "the justification has shifted increasingly to the protection of the right to privacy": at 141. See also generally his observations at pp.141-144.

310. The constant emphasis by members of the High Court, regardless of the minor qualifications which appeared in some judgments in Ousley, as to the need to protect the citizen's rights to privacy shows that the analysis we adopted earlier of the critical words "particular person" ought not to be qualified by reason of anything said by that Court. Although all those decisions were decided after the insertion of the term "particular person" into the legislation by the addition of s.219B, they all point to reasons of policy and good sense why the legislature chose to restrict the form of listening warrants in the way that it did. There would have been no need to employ the word "particular" if the interpretation placed on the words by the Crown were to be accepted. The word "person" or "that person" could equally have been adopted, as indeed may be seen in the more general use of the word "person" in sub-s.(7). Particularity was intended, in our opinion, by the legislature to ensure that warrants should not be issued of a general kind, of the kind indeed upon which the common law has for at least three centuries frowned. The present case shows an attempt by those seeking the warrant to use an ambulatory description which might, if valid, permit the recording of one or many persons' voices without any warrant being obtained which would identify that person in the conventional way. Undoubtedly, a person might be described by reference to clearly identifiable characteristics, if that person's name were unknown to the law enforcement authorities, but that is far removed from what occurred in the present case. It was not even a case where there was an attempt to identify the person by reference to a specific suspected event, but we would not for the present wish to suggest that the section could be satisfied by use of a term of description such as "the person who first obtains possession of the carry bag from Mr Termsrisuk when he arrives in Australia" or words to like effect. That might again seek to delegate the decision as to who was the "particular person" to those officials seeking to enforce the warrant, the very matter which offended the Court in Leach. It seems no more acceptable to authorise the AFP in this case to identify the subject of the warrant as some one or more persons who obtain or seek to obtain possession of a named bag, than it was for Lord Halifax to authorise the arrest of persons no more particularly described than as the "authors, printers or publishers" of the seditious libel in the North Briton newspaper. The decision as to who satisfies such a description cannot be left to those who would desire to execute the warrant but must be resolved by the judge under whose name it is issued. The warrant here, therefore, was not authorised by s.219B and was thus unlawful.

313. There remains the question whether the unlawfulness of the warrant is of a kind which would require the Court to refuse to allow into evidence the material gathered as a result of its being carried into effect by the use of the listening devices in question. The relevant authorities cited were Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54, The Queen v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321, Pollard v. The Queen [1992] HCA 69; (1992) 176 C.L.R. 177 and Ridgeway. Undoubtedly, the trial judge had a discretion to exclude the evidence if he had concluded that it had been obtained unlawfully. He did not reach that conclusion and thus did not exercise the relevant discretion but the question remains whether it would have been appropriate to exercise that discretion in the present case. We are clearly of the opinion that it would not. There seems no suggestion that in obtaining the warrant the officers did not act honestly, whatever criticisms were made of the later investigation in the course of cross-examination at the trial. Unfortunately, they chose to cast the warrant in terms which were too wide and, if the task of identifying the subject persons had been entirely left to them, a question might have arisen as to their behaviour. But they sought, so far as one can gather, in a proper way and by the use of appropriate materials, the exercise of the power by a judge of the Federal Court. That judge chose to grant the warrant in terms which defined the subject persons in the wide and unacceptable form which has been set out above. The terms were clear to the judge and he, for better or worse, accepted them and granted it. Under those circumstances it seems hard to argue that there was such a conscious impropriety in their participation in an illegal act which would require the Court to exclude evidence of the conversation. For present purposes the materials were obtained in good faith and in reliance upon a judicially endorsed warrant. It is not necessary to examine the various authorities which have raised somewhat different considerations. There has been no contumelious or deliberate disregard of the law. For the present it is not a case, in our opinion, where the law should deny the prosecution the right to adduce that evidence. Nor for that matter was there any matter of unfairness of a kind which would require the exercise of a discretion to exclude the evidence. The material does not show any element of unfairness other than the fact that the warrant took a form which has now been held to be unlawful. In those circumstances it does not seem to us that the discretion could have been exercised against the admission of the relevant tape recordings.

316. It might be said, as was at one time suggested in argument, that the trial miscarried because, having reached his conclusion as to validity, the learned trial judge failed to exercise his discretion as to whether the illegally obtained materials should have been excluded from evidence. Even if that be the necessary approach in this case, we would have concluded that it was a proper case for the exercise of the proviso.

319. This ground has, in the circumstances, not been made out.

Ground 2 - Wrongful admission of out of court conversation

323. Ground 2, it will be recalled, complained of a wrongful admission into evidence of "the out of court conversation between the co-offender Lu and the police officer Termsrisuk". A transcript of this impugned conversation, which occurred at about 6:00 p.m. at the Hotel Como and which was covertly recorded, is annexed to this judgment (Annexure 2) There can be little doubt that, if properly admitted, it constituted damaging evidence to the applicant, for in it Lu, who had come alone to the hotel by taxi, went on to say that he had "never asked my man to come". After another reference to "my man", Lu referred to "my car" which he described twice as a "Range Rover".

326. The learned trial judge ruled this conversation to be admissible before the jury was empanelled, acting on the materials then available to him. He had made earlier rulings concerning certain matters and apparently a doubt arose whether those rulings included the impugned conversation. The matter was argued and his Honour gave a short ruling.

329. Before us, there was no dispute between the counsel as to the relevant principle touching admissibility. In Ahern v. The Queen [1988] HCA 39; (1988) 165 C.L.R. 87 at 94/5 five members of the High Court, (Mason, C.J., Wilson, Deane, Dawson and Toohey, JJ.) cited Tripodi v. The Queen [1961] HCA 22; (1961) 104 C.L.R. 1 at p.7 as revealing the following:

"When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of the acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others..."

"In our view, the test adopted in Tripodi is the appropriate one."

337. Before us, it was submitted by the respondent that the learned judge found such "reasonable evidence" in Lu's possession at the relevant time of a mobile telephone registered in the applicant's name; evidence from a taxi driver of a telephone call made by Lu from a taxi at about 6:15 p.m. during which he asked the applicant for $2,000; the applicant's movements in driving his Range Rover at about 8:45 p.m. from the new Chateau Hotel in the city to the Hotel Como with Lu as his passenger; and Lu's movements in entering the Hotel Como and returning therefrom followed by Termsrisuk who placed the bag containing the heroin in the Range Rover. We think that in addition to the abovementioned matters his Honour gave consideration to the content of a recorded conversation at the Range Rover involving the applicant and Lu and which occurred about 9:15 p.m. This conversation was taped and various tapes thereof were in evidence.

340. Counsel for the applicant, however, submitted that Lu's possession of the applicant's mobile phone was "meaningless" and that the evidence otherwise acted upon by the learned judge could not meet the relevant test, citing in this connection what was said by the Court of Criminal Appeal (Young C.J., Crockett and Southwell, JJ.) in R. v. Smith, Ashford and Schevella (1990) 50 A. Crim. R. 434 at 442. "...we think that the question for the judge is whether on the evidence the jury could lawfully and properly reach the conclusion that the accused was a participant."

343. The question is whether there was reasonable evidence of preconcert at the time of the impugned conversation. It was conceded before us that the content of the 9:15 p.m. conversation (and other events following the 6:00 p.m. conversation) were relevant to this question and, indeed, that the 9:15 p.m. conversation provided "reasonable evidence" of preconcert at the time it occurred.

346. In our opinion, the submission touching possession of the mobile telephone has force only if that possession is considered in isolation. It is now helpful to repeat some detail of the 9:15 p.m. conversation. That conversation supports the conclusion that the applicant opened the rear door of his vehicle and said to Lu "How much do you want, what do you want to take out?" Lu replied, "One only". The applicant said "One piece." The applicant then unzipped the bag. (A view of the bag when opened is conveyed by photo 17 in book 5 of Exhibit M.) A single block of heroin was later found under the front passenger seat in a white envelope. A number of similar white envelopes were found near the back seat of the car. The tapes also disclose an offer by the applicant that Lu use his phone and statements by Lu, to which the applicant responds, about "the brand" called "Virgin" or "Virgin Prostitute". At one point, the applicant says "I'd...really die if they find it...in my house..." and adds "No they...they won't be able to find it in my house, ha ha." There was also talk between the two men of "quantity" and "700", and the applicant remarks "these poor bastards that grow the stuff, they get nothing...". Termsrisuk had earlier given evidence that in drug dealer parlance a "unit" of heroin consisted of two blocks with a total weight of 700 grams. It is to be noted that the conversation entirely lacks any expression of surprise or concern in the applicant as to the contents of the bag. This conversation plainly conveys, in our view, an established criminal understanding between the applicant and Lu centred upon the heroin. That conversation can, we think, be properly used to throw light on earlier events which may be conveniently summarised as follows. By 5:00 p.m. the heroin is at the Hotel Como. At 5:36 p.m. Lu, using the applicant's mobile telephone, contacts Termsrisuk at the Hotel Como. Lu had travelled by taxi to that hotel arriving somewhat before 6:00 p.m. During that journey, again using the applicant's mobile telephone, he placed a call to a phone service which was connected by independent evidence to the applicant. He seeks $2,000. The response of the receiver of that call, which the judge could conclude was the applicant, was, according to the independent evidence of the taxi driver, unquestioning and immediate. "No worries." Lu meets Termsrisuk at the Hotel Como. At 9.15 p.m. the applicant drove Lu in his Range Rover from the city to the Hotel Como. There, Termsrisuk placed the heroin in the applicant's car and the 9:15 p.m. conversation took place.

349. Having regard to the foregoing, which the judge appears to have properly treated as a "chain" of "events occurring so close together" we think that there was ample "reasonable evidence" to support his Honour's conclusion that relevant preconcert was shown "back to shortly before six, at least" and that the impugned conversation was, accordingly, properly admitted. It was further contended that directions his Honour gave to the jury constituted an "abdication" of his Honour's duty. We are unable to agree. The evidence was properly admitted and the directions, we think, were orthodox in the circumstances. No ground pleaded alleges misdirection in them. This ground fails.

"The trial miscarried as a result of the admission into evidence of parts of the Police interview of the third party Lu and the subsequent invitation by the Prosecutor in the course of her final address to use the evidence for a hearsay purpose."

357. In the course of his cross-examination of the prosecution witness, Hamilton, senior counsel for the applicant asked a series of questions with the results set out below.

"Q. He (the applicant) was charged after he had denied being involved? A. Yes. Q. He was charged before...the police had searched his car? A. No, I believe no, that's not the case. Q. He was charged before you had any fingerprint analysis done on either the bag or its contents A. That is correct. Q He was charged before you had any fingerprint analysis done of the envelope that Mr Lu pointed out under the front passenger seat? A. That's correct, yes. Q. He was charged, was he not, before the record-of-interview with Mr Lu had concluded? A. Yes."

"Q. He was charged at a point of time when Lu was saying he (the applicant) wasn't involved. A. No, I don't believe Lu said that. Q. Don't you? You've read the Lu record-of-interview? A. Lu makes comment about Mr Nicholas, but he also suggests he handed him..."

365. An objection followed and then counsel asked:

"Q. You tell us what you say because then I'll have to put the interview to you, you see. What do you say Lu says in the record-of-interview? A. Well, I think at one point in the record-of-interview Lu says that Mr Nicholas handed him a block of heroin."

369. Counsel suggested this last answer was an "outright lie", which suggestion was rejected by the witness whereupon counsel stated that he would "come back in some detail" to the record-of-interview later.

372. It will be observed that although it appeared to be common ground at that point that the applicant had been charged before Lu's record-of-interview had been completed, counsel declared a return to "the record-of-interview". As will appear, counsel was true to his word. Thereafter, the matter of statements by Lu in the absence of the applicant was revisited, variously, in cross-examination and re-examination of Hamilton both before the jury and upon the voir dire. (Indeed, earlier questioning had gone beyond the content of Lu's record-of-interview to include the content of a telephone call said to have been made by Lu to Hong Kong and the content of a conversation between Lu and police officers at the Range Rover.) Much argument ensued and, throughout, his Honour appears to have adhered to the view that this material had been admitted for a limited purpose, viz: for such light as it might throw upon the police decision to charge the applicant, and that the jury could be satisfactorily instructed accordingly.

375. In fact, as earlier noted, the introduction of such material had long preceded Hamilton's entry into the witness box. It had also been put in cross-examination to Proebstl, the second witness called for the Crown:

"Q. And what Mr Lu had said was this, I suggest, that his job, he had been paid to go and collect the bag from Como and what he then had to do was ring a number in Hong Kong and he would be told where to take the bag to. A. I am not aware of that, no. Q. Are you aware of the fact that Lu was saying that his job was to collect the bag and contact Hong Kong to get instructions as to what to do? A. I think we hear something of that ilk on the tape do we not?"

379. A little later, it was further put to Proebstl in cross-examination, he having said that the applicant was charged whilst Lu was assisting police in further enquiries,

"And after Mr Lu had said Nicholas wasn't involved?"

383. The Crown Prosecutor had then objected on the ground that nothing said by a co-accused in the absence of the accused was admissible and counsel for the applicant had defended the question on the basis that it went to the witness's credit. The judge had allowed the question. Other attempts to obtain such material had occurred with the witnesses Masters and Hamilton.

386. In re-examination of Hamilton, the prosecutor reminded the witness that it had been put to him that the applicant was charged at a time when Lu was saying he was not involved. He was also reminded of other relevant questions and his answers. The prosecutor then asked "What was it that made you say that yesterday because you seem to want to direct your attention to other things as well?" Before the witness could answer objection was taken by senior counsel for the applicant and discussion ensued thereafter in the absence of the jury. In the course of this, the prosecutor sought leave to play tape-recordings of the whole of Lu's record-of-interview to the jury, less some parts where guns were referred to. His Honour indicated again that he thought that "certain warnings" would be necessary for the jury having regard to what had occurred and pointed out that the evidence was that the applicant had been charged before the conclusion of Lu's record-of-interview. Senior counsel for the applicant acknowledged that the record-of-interview would be inadmissible as to the truth of its contents. The Crown Prosecutor indicated to the judge what she had in mind by way of further re-examination. Hamilton was recalled on the voir dire and re-examined. It is sufficient to say that he maintained his position that Lu told the police the applicant had handled a block of heroin, calling in aid not only the record-of-interview but the circumstances of the bag being placed into the Range Rover. He said that Lu's record-of-interview had no bearing at all on his decision to charge the applicant. The witness then withdrew and further discussion ensued. His Honour opined "I desperately want to contain this, but it has got a foundation and it's admissible, but it seems to me to invite a further elaboration of what Lu said." As we understand the transcript, it appears to have been agreed between counsel and the judge that re-examination should occur in which the witness was enabled to refer to specific passages in the record-of-interview which justified his view of its tenor.

389. Hamilton was recalled in front of the jury and further re-examination occurred commencing with other matters. Counsel reminded him of the questions which had previously been addressed to him as to whether or not Lu made mention of the applicant handling the block of heroin. The witness reiterated his earlier position. His Honour then gave the following directions to the jury:

"Ladies and gentlemen, you've heard some evidence about some of the questions that were put to the late Mr Lu about his part in this. Now, the reason that you've heard that I'll come to in a minute, but you must realise that nothing that Mr Lu said can be used in any way as evidence for or against the accused or the Crown. And the reason for that's pretty obvious. When you think about it, if somebody in a person's absence says something about someone else and that person has no - is not there and has no way of agreeing with it, disagreeing with it, changing it, adding anything to it, or whatever, it's unfair to use it against that person. Especially when that person might well have reasons for saying things, being the truth, or telling an untruth such as a person who is, as Mr Lu was, being charged with a serious crime. So you must not use anything you hear about what Mr Lu said about Mr Nicholas' involvement in any way as evidence in respect of his involvement. However, you have heard some of this and the reason you've heard it is this. It is suggested that this witness acted improperly in the way that you have had suggested and will no doubt be argued later and it is relevant when you judge his conduct and the propriety of it to have an idea of his state of knowledge of the investigation and of course, part of his knowledge about the state of the investigation is what Mr Lu was told him and that's the reason that you've been told about it and its use is limited to your assessment of the credibility of this witness. Having said that and I've gone into a bit of detail and you'll hear me say it again, but that essentially is it."

393. Further re-examination, objections and discussion ensued and his Honour observed to senior counsel for the applicant "The subject of what this man believed or thought or knew, all of which goes to explain or otherwise his actions, was brought into this by your cross-examination." Later Hamilton was further re-examined on the voir dire and his Honour subsequently refused an application on behalf of the applicant for the jury's discharge. Re-examination then continued in the presence of the jury. In the course of it, Hamilton said that he would have been informed of comments made by Lu "probably along the early hours or on the morning of the 25th." He was then asked "I think it's pretty clear and there seems to be no dispute that you determine to charge Mr Nicholas before the record-of-interview commenced, is that right?" The witness answered "Yes".

396. Lu's record-of-interview was next adverted to during the final address of the prosecutor. As to her first reference, no complaint is made. She continued:

"He (Termsrisuk) is not in the hotel business. He was not checking out from one hotel to the other. He was not going out to dinner. He was never going to get in that car. So, therefore, if Mr Lu told Mr Nicholas that, Mr Lu was lying to Mr Nicholas. He must've been, because we know all the objective facts - we know about Mr Termsrisuk and, of course, that is exactly what Mr Nicholas says. He says, `I was deceived. The last thing I would ever have expected was that Mr Lu would be involved in drugs.' This is someone that the accused now says Mr Lu is a liar. Now, you remember, right from the beginning, the very first police witness who was called was Mr Proebstl, and that sparked objection, because it was put to Mr Proebstl in cross-examination that Mr Lu told the police that Mr Nicholas wasn't involved, and you will recall I made objection to that, because what Lu - what Mr Lu told the police is not admissible either for Mr Nicholas or against Mr Nicholas. Now, let's examine that in some detail, to see the common sense of that rule and how the rule has probably resulted in it backfiring in the face of the accused, but why I ask you not to use it that way. Firstly, we now know that, if Mr Nicholas is right, Mr Lu's a liar, but he wants you to believe this liar was telling the truth to the police, that he was not involved. And you'll remember in cross-examination of Mr Hamilton, Mr Dunn went through various passages of the record-of-interview between Mr Lu and the police. Part of that cross-examination involved Mr Lu telling the police that he had unzipped the bag as they were driving along, not in the car park, as they're driving along - he pulls out a block, he's got it sitting on his lap in an envelope at the time that the police intercept the vehicle. Mr Nicholas, on the other hand, he doesn't see that happening, he doesn't see the bag being unzipped as they drive along, and it's certainly not on the tape, and there's been no edit done to suggest where it happened on the tape, and may I suggest it would be physically impossible, given the layout of the car, for Mr Lu to sit in the car with the bag behind him like this, unzip the bag and reach to the back deck to get the envelopes. How could he do that? Because we know, according to Mr Dunn, and according to what we've seen, he's not a Gumby doll, he's not Inspector Gadget with his arms going all the way out. You can't reach, when you're in the seated position in the back deck. So, Mr Lu, when he was sitting here, unzipping the bag, as he would have the police believe, reaches all the way to the back deck, grabs an envelope, all without the accused seeing it, puts the block in the envelope, puts it under the chair. Mr Lu's a liar. He has to be. Now, this case cannot be determined on the truth or falsity of what Mr Lu told the police. So that, if you believe him, you acquit Mr Nicholas, or, if you disbelieve him, you convict. Because, Mr Nicholas was not present when Mr Lu was questioned by the police. He didn't get the opportunity to say, `Albert you're wrong. You didn't do that. You had the bag in the back of the car. I saw you in the back of the car.' And it's totally unfair to Mr Nicholas to suggest that something that happened outside his hearing, and without his control, can be used against him and that's why I, at the beginning of the trial, when it first came out, said, Your Honour, I object to this. It's not evidence for. It's not evidence against. And I stick with that, and I ask you, this case is not determined on whether or not Mr Lu is a liar, so that if you think he's lying, therefore, Mr Nicholas is guilty. Was Mr Lu trying to save his own skin, was he trying to save Mr Nicholas' skin? We'll probably never know, but could I ask you, take what you've heard about Mr Lu's record-of-interview and dump it. The way its inclusion in this case was justified was on the basis that, knowing that Mr Lu had not been yet interviewed, it was somehow improper to charge Mr Nicholas, and, then, knowing what they later knew he had said, that was some motivation for Mr Hamilton to fabricate evidence. That's the way it's been used. So, please forget that Mr Lu told the police that, as far as he was concerned, Mr Nicholas wasn't involved, and please forget the evidence that shows that he was lying. I'm about to move to a new topic. I know it's certainly not break time, but I wonder if there's any indication if you'd appreciate a break now, or you want me to keep going? ... Just coming back to that last point about Mr Lu's record-of-interview, and I'll be repeating this like it's one of the loops that can be created. The question is whether or not the Crown has satisfied you beyond reasonable doubt of the accused's possession and attempted possession on 24 September, 1994. Not whether Mr Lu was a liar or a truther."

400. As to all this, which represented a considerable segment of the applicant's trial, the following submissions were made:-

A. In re-examination the prosecutor sought to impermissibly delve into aspects of Lu's record-of-interview.

B. Evidence was used for an improper purpose during re-examination.

C. His Honour erred in refusing to discharge the jury when application had been made for such discharge on the basis of evidence given by Hamilton which represented a "complete divergence from what occurred on the voir dire".

D. Language used by the Crown Prosecutor in her final address created "a situation of incurable prejudice such that it was impossible for the applicant to have a fair trial".

E. His Honour erred in refusing to discharge the jury by reason of the abovementioned language having been used.

F. The learned judge's directions to the jury could not cure the prejudice created and the trial of the applicant miscarried.

409. We now turn to our conclusions as to this ground. As to submission A. it appears that in re-examination the Crown Prosecutor attempted a long question which was in great part a reminder to Hamilton of earlier cross-examination but concluded with his mind being directed as to why it was that he had earlier referred to the putting of the block of heroin in an envelope. Before the question was answered objection was taken and argument ensued in the absence of the jury. Remarkably, it was of such length that its recording took over 100 pages of transcript. When proceedings resumed in front of the jury the question was not repeated in the form to which objection was taken. Questions were put as to the authenticity of various tape recordings. Asked later as to his interpretation of Lu's record-of-interview, Hamilton said that he maintained an interpretation that the record-of-interview included material which suggested to his mind that Lu was saying that the applicant had handled the block of heroin. At this point, upon the suggestion of the prosecutor, his Honour gave the directions set out in paragraph 117 above. We do not consider this sequence of events occasioned impermissible prejudice to the applicant.

412. As to submission B. we are unable to agree with it. In our view, the questioning recorded in paragraphs 110, 113 and 114 was sufficiently wide to open up the topics of Lu's statements to the police and the witness's interpretation of them. The re-examination complained of in this submission was, therefore, legitimate.

415. We would not uphold submission C. It is not suggested that his Honour acted on any mistaken view of the relevant principle. The application was made at a very late stage of a long trial. His Honour took the view that the problems which had been the subject of so much discussion in the jury's absence could be dealt with by appropriate warnings. In our view such a conclusion was plainly open to him. We note that no ground of appeal complains of error in refusing the jury's discharge.

418. We now turn to submission D. In our opinion, reasonably viewed, the initial part of the prosecutor's remarks, while not altogether clear, constitutes no more than argument that the bringing to the jury's attention of matters Lu had said to the police in the applicant's absence was attended by considerable risk and little prospect of advancement of the applicant's cause. The learned judge gave the jurors appropriate directions as to the arguments of counsel. The latter part of what she had to say, we think, does not admit of any criticism. Specifically, we would not uphold the contention that she invited the jury to use evidence "for a hearsay purpose".

421. Submission E. complains that the learned judge erred in refusing to discharge the jury following on the prosecutor's address. We would not uphold this submission. His Honour thought the matter could be dealt with by directions. Again, that was a view open to him. He voiced no criticism of the prosecutor's conduct.

424. As to submission F., the following, we think, is a fair summary of directions given to the jury by the learned judge in his charge. We think these directions, so oft repeated, were sufficient in the circumstances to ensure a fair trial of the applicant.

"The reason that you heard anything about what Mr Lu said was simply so you could bear it in mind and use it as knowledge when you consider the reasonableness of the police conduct, given their state of mind at the time, and you must be very careful not to use anything Mr Lu said or did in the absence of the accused in any way against him, or indeed let me say, in any way against the Crown. There are reasons for that, and I will give you a general warning later, but when I now refer to evidence of what Mr Lu said, I warn you that you have got to be very careful how you use that evidence. It is to be used in your assessment of the reasonableness, or a decision as to what the police did or did not do at the time, given that that was their state of mind, or their state of knowledge of the situation at that time." "Now, this (the cross-examination of Hamilton as to whether Lu had ever said that the applicant gave him a block of heroin) is the subject - remember what I said earlier on about how you use Mr Lu's statements to the police. I just repeat it, and I am going to come back, and I will repeat it again more formally later. But you will make what you will of his recollection that Lu did say that Nicholas took the block from the bag. I must say, for myself on that evidence - and this is a comment from me, and I repeat, what you make of the evidence is in the end a matter for you, but it seems to be not so, or at least equivocal whether in fact he said that. But whatever he said, remember, you cannot use Lu's answers against the accused in the absence of Mr Nicholas, as indeed you cannot use them against the Crown." "Now, the issue on the subject in this case is the taped conversations of Mr Lu on the telephone arranging delivery, that is Exhibits B, C and following, those early exhibits you got at the beginning of the trial; because, remember, I told you you cannot use anything said by Mr Lu in the absence of Mr Nicholas. But this is an exception and it relates to those tapes." "...You have, of course, heard in this case some of the things that Mr Lu did and said after his arrest in the absence of Mr Nicholas. Now, your first rule is that it cannot be used against Mr Nicholas, and for that reason normally, were it not for other circumstances, you would never have heard it, because it cannot be used. But in this case you have heard something of it, and why have you? Because it was important to know what the police knew or thought or had been told, so you could evaluate what they did and said at the time they did and said it. In other words, you needed to know their state of mind, or something of their state of knowledge when you determined what they did in relation to Mr Nicholas, and so you use what Mr Lu has told police only in that way as part of the background information when you sit and determine the veracity of the police and consider the motives of the police and in particular Mr Hamilton, when they did what they did, did what they said they did, or did not do what they said they did, but when you evaluate their evidence. The reason that you were told what you were told about what Mr Lu said at that time was that you needed to understand what the police knew or believed after they have spoken to Lu, and when you consider what you make of what the police said and did after that. The propriety of the actions of the police is the issue in this case, an issue fairly raised by Mr Dunn and Mr Shirrefs. So when you examine the actions of the police, you need to know what the police knew or believed, and when they did whatever they did do - I think I have explained it. I am repeating myself now. You need to do it, so you can better evaluate what they did and said afterwards. So that is why you heard the evidence, and that is the only way in which you can use it, and although it may sound at first glance a little false to use evidence one way and not in another, it is an important matter and you must bear what I have said in mind. But do not use any of that evidence against Mr Lu, and I might add, you cannot use it against the Crown either. It is there for one purpose only and must be used only in that way. The general rule applies: nothing said in the absence of an accused can be used, and certainly it cannot be used against that accused person."

432. Counsel for the applicant sought next to rely on what was said to be a misapplication of what has come to be known as the rule in Browne v. Dunn [1893] 6 R. 67. The rule derives from the decision of the House of Lords wherein a rule of fairness has been prescribed in the conduct of trials, but with a sting in its tail, namely, that at least as a matter of practice the fact-finding tribunal, the jury in a criminal trial, may draw certain inferences as to allegations in evidence led on behalf of an accused or a defendant, which have not been foreshadowed in cross-examination of Crown (or the plaintiff's) witnesses who know or might be expected to be aware of the matters subsequently raised. For the most part it is not so much the legitimacy of the prosecution's (or plaintiff's) arguing in the course of address that the failure to cross-examine on some point or another might demonstrate the weakness of some evidence arising only in the course of the defence case, for, within limits, that is merely part of the forensic contest; rather the problem arises where the prosecution (or plaintiff) asserts that it follows in law or at least in logic that the later piece of evidence should be disregarded and, more importantly, where the judge gives a direction to the jury (or directs himself in a civil case) that that evidence ought to be disregarded by reason of the application of the "rule".

435. In the present case much time was spent at the trial, especially by counsel for the prosecution, on stating her complaints as to a considerable number of aspects of the evidence about which there had been no cross-examination or very little cross-examination or which failed to condescend to the kind of detail which later appeared in the course of the evidence called on behalf of the applicant. Some were relatively minor points, others more important, in particular those relating to the attack that the defence had made on the honesty and veracity of the witness Hamilton.

438. Counsel for the prosecution had first complained about the failure of the applicant's counsel to put his case to various witnesses at a relatively early stage of the trial, far earlier than the problem normally arises. It seems that counsel detected some failure or likely failure to put the whole of that case when certain questions as to the accuracy of the tape recordings were put to some prosecution witnesses, but were not put to others. As a result she then warned both counsel for the applicant and the judge of her intention to rely upon the rule in Browne v. Dunn, suggesting, however, that the prosecution witnesses could all be recalled in order that appropriate questions might be put to them.

441. The arguments as to these matters took some time, but were at first largely hypothetical and were raised in the course of the trial as and when practicable. Senior counsel for the applicant treated the arguments with disdain, but his opponent persisted. Later there was discussion as to what, if anything, should be said of these arguments by the judge in his charge for, according to counsel for the prosecution, her fears had been largely fulfilled inasmuch as a number of matters came out in the course of the applicant's case which had not been put directly to prosecution witnesses. The judge, for himself, was not prepared to dismiss the complaints out of hand, especially as few precise questions had been put in cross-examination either to Hamilton, whose credibility overall was attacked, or to a number of prosecution experts and other witnesses who had supported the authenticity of the tape recordings.

444. Fairly detailed arguments were advanced on behalf of the prosecution, but counsel for the applicant responded by down-playing the differences. Discussion again took place after counsel had forcefully attacked the conduct of the applicant's case in the course of her address to the jury. She had turned to the matter a number of times but in particular listed six examples which were said to show that the defence case had not been properly put to prosecution witnesses when they were in the witness box. To be fair to her she had described the rule as a rule of practice and not a rule of law and her arguments were, essentially, forensic arguments seeking to throw doubt on various aspects of the evidence given either by or on behalf of the applicant. She asserted that counsel had been afraid to put those submissions to prosecution witnesses for a number of reasons, including reasons which she would not pursue, but, primarily, for the reason that in each case the prosecution witness could have dealt with the assertion peremptorily.

447. In this respect she had given the following examples. First she had referred to Dr Prandolini's evidence about the listening device transmitter tape and the fact that, although it was a compilation, it was a continuous recording. Nothing was specifically put to him on this in cross-examination, but a defence witness, Professor Spring, not qualified as a sound engineer, nevertheless said there was something suspicious about the tape and gave particular examples which had not been put to Dr Prandolini, such as the apparent rise and fall of the voice which counsel said was affected by automatic gain control or the like. Counsel for the prosecution then dealt with the possibility that counsel had overlooked the rule or was not fully aware of how it might apply, an answer frequently put forward, especially by judges in seeking to deal with the use of the rule in Browne v. Dunn in circumstances where far less experienced counsel have been appearing for the accused. So counsel for the prosecution, by way of contrast, had given a detailed example of how the rule had been complied with and how specific questions had been put to a witness, one Wall from the Forensic Services Division, in relation to events which were said to have occurred outside the Court in which it was alleged that certain police officers had attempted in various ways to browbeat defence witnesses, in particular the applicant's wife. Those matters had been denied, so counsel merely gave chapter and verse for the way in which the rule in Browne v. Dunn had been properly complied with.

450. She had then returned to further examples. The second example of the failure to cross-examine in accordance with the practice was said to have arisen out of the witness Warren's evidence as to how an enhancement of the tape recordings might properly be effected. She had complained that the evidence of the defence witnesses was not put plainly to Mr Warren, particularly that in Professor Spring's report.

453. A third matter had arisen also from the evidence of the expert witnesses and in particular Dr Prandolini. He had spoken about the recorded sound being affected by the sound of the motor and of various buzzing noises and distortions which were typical of the recording units employed, but in his opinion there had been no features or characteristics which would have led him to conclude that the tape was not a continuous recording. That was said to be in direct conflict with Professor Spring's views as to indications of loops and re-recordings.

456. Fourthly, she had asserted that the jury might well have thought that there was little in dispute with Dr Prandolini because of the limited amount of cross-examination, especially about the effects of automatic gain control, saying that, although it is possible for a tape to be edited seamlessly, he formed the view that there was nothing about the exhibits which showed it likely that they had been faked. Again, the defence witnesses seemed to suggest the contrary but their specific evidence had not been put to Dr Prandolini. In particular, the witness Morgan, called on behalf of the applicant, professed to say that seamless tapes could be reproduced by editing which would not be obvious and then produced examples including a re-arranged tape of the critical conversation in the Range Rover, on which tape the applicant relied and which was put in evidence. Each of those tapes was played to the jury but none of them was specifically put to the witness Warren in cross-examination so that he might comment on what had been done. So it was said that possibly he might have been able to state that the reconstructed tapes were not in fact seamless. A similar point was briefly made in relation to voice identification evidence.

459. The fifth point made by prosecution counsel had related to the evidence of surveillance witnesses. Criticism was made of the fact that no questions had been put to those witnesses about the applicant's evidence that when he got out of the Range Rover in the car park he had gestured with his hands to Mr Lu to indicate that Mr Lu should get out of the car to go for dinner, but this had led to Mr Lu refusing to do so and suggesting to the applicant that they go to his hotel straight away. Complaint had been made that this gesturing would have been obvious to the surveillance witnesses, including one Rundus, but no questions were put to any of them, although, if we may say so, the point seems only clearly to have been raised in re-examination of the applicant.

462. Finally at the trial, counsel for the prosecution had raised the failure to cross-examine in detail about the allegations that the tapes were tampered with deliberately by prosecution witnesses including Hamilton. It had been contended that no questions were asked of the witness Westra who monitored the whole conversation and only two questions put to Hamilton in circumstances where many more precise questions might have been expected.

465. Counsel for the applicant dealt with those matters at various times during his address to the jury but not in the same detail, although he pointed out that the allegation against Hamilton had been made during the committal proceedings but that thereafter no additional tests as to the authenticity of the tapes had been made for the purpose of the trial.

468. In the end, after much argument as to how the matters should be dealt with, the learned judge explained the matter to the jury in guarded terms, leaving to them what conclusions should be drawn. The following is but a summary of what appears over some six pages of transcript. The judge began by calling the rule a "rule of conduct" relied upon by counsel, "and this is not a rule of law", although he called it a "very sensible rule when you think about it". He described it as a rule which "suggests" that counsel who proposes to lead evidence of a "material fact" should put it in cross-examination to "any witness who might be expected to be able to confirm or deny" it, so as to allow the witness the opportunity of doing one or the other. If counsel does not put such a question, "it renders it more difficult for you to readily accept" the version of the person who is called later. His Honour said it was an important rule because it enabled the jury better to make comparisons. The earlier witness might have agreed with the allegation or that witness might have made a "devastatingly effective denial of it".

471. The learned judge then, with some care and fairness, explained how a failure to comply with the "rule" may occur for a variety of reasons, only some of which were said to be "sinister". He referred to the possibility of mistake or forgetfulness, or that counsel had formed the opinion that it was not important or serious enough to put directly. Sometimes it was so obvious that there would be no point in putting any questions because the evidence could not possibly be believed, but he thought that that was not here a relevant consideration.

474. Nevertheless, the judge said failure to cross-examine is generally a "very telling point". The jury might wonder why the point was not put or that it was "a later invention", in which case the jury might well doubt the truth of that evidence. But he reiterated that "it is a matter for you what you think". On the other hand, there may have been tactical reasons such as a fear that the witness would "readily ... demolish" the point, so that the jury "might again have reason to doubt" the evidence altogether. His Honour made clear that a failure to put an allegation could not disprove any allegation, only that it might enable the jury "more readily to accept the evidence because the assertion was not put" and to reject that contrary assertion. The learned judge then briefly touched upon the areas in which prosecuting counsel had sought to rely on breach of the "rule", but he emphasised that by referring to those areas he did not intend to endorse either side's contentions. It is unnecessary here to repeat that element of the charge for it very briefly, under four headings, summarised the contentions of counsel for the prosecution.

477. After those brief references to counsel's argument, the learned judge returned to the proposition that it was "not a rule of law; it is a rule of practice", which the jury should understand as providing "a little bit of common sense about putting questions that should be put". He continued: "It is a matter for you, of course, whether they were put sufficiently or whether they were put or were not put". Then for the third time the judge repeated that it was not a rule of law, and it was only a rule of practice, but it did have a "rational basis". Although the learned judge's description of the rule and its possible application may not contain all the subtleties and all the possibilities leading to a failure to put questions in cross-examination, which were described in recent authorities such as R. v. Manunta (1989) 54 S.A.S.R. 17 and R. v. Birks (1990) 19 N.S.W.L.R. 677 (both referred to with approval in this Court in R. v. Laz [1998] 1 V.R. 453), it was in the circumstances a sufficient description of the rule of practice and the jury's proper approach to it. We did not understand counsel for the applicant on this appeal to criticise the judge's analysis in terms of principle or practice. The applicant's contention, rather, was that reference to the rule was unnecessary, throwing unfair critical light on the defence case where there was no true unfairness, nor witnesses who should be preferred by a proper application of that rule.

480. Without wishing to be critical of counsel conducting the prosecution case on her own in difficult forensic circumstances, it might be thought that there was an excess of zeal in detecting events which suggested breach of the "rule", even to anticipating a breach before any evidence was led on behalf of the applicant. Many of the points were clarified later or never again surfaced as real issues. Nevertheless, without examining every event to which counsel drew attention, it seems that the defence case was conducted on a very broad brush basis in cross-examination, of being "willing to wound, yet afraid to strike", so that a number of important matters later led in evidence were not put to prosecution witnesses, especially those relating to the tape's genuineness and the attack on Hamilton's character. Moreover, it seems wrong, in our opinion, to allow a witness to produce an important exhibit such as the reconstructed tape of the conversation and to put it before the jury when that tape had not been put to or examined by any of the prosecution's witnesses who were experts in the relevant field. These matters in themselves justified the reference to the rule by counsel for the prosecution and the judge's practical attempt to show the extent to which the rule may be applied.

483. As to the application here of the "rule", one may add that it was an unusual trial. Prosecution counsel during the Crown case gave warning of her intentions and offered to recall any relevant prosecution witness to enable the "rule" to be observed before the defence embarked on its case. Secondly, whatever caution may be said to apply in cases where there is either no professional representation of an accused or inadequate counsel, here the defence case was conducted by two very experienced members of the criminal bar, well aware of the rule, which in any event was raised explicitly at an early stage. It is also clear that they were fully briefed and already had expert witnesses who were in fact called. Thirdly, with one exception, the complaints were not related to the events as described, so much as to the nature of the evidence and the effect of the expert evidence called on each side.

486. We do not believe it would be fruitful to examine further every point raised one by one, because the need for and nature of a charge of this kind had to depend on what the trial judge, likewise experienced in this field, saw as live issues requiring the jury to be directed appropriately, having regard to the arguments already put to them. We are not persuaded by any argument put to the Court that the learned judge erred in his appreciation of the case or in the manner in which he left the matter to the jury. We cannot detect any unfairness or accept, as claimed, that it was impossible to have a fair trial because of the references made to the rule in Browne v. Dunn.

Conclusion as to application in relation to conviction

493. It follows that the application for leave to appeal against conviction should be dismissed.

497. We find it convenient to deal first with ground 2 which, it will be recalled, constituted a complaint that the learned judge attached too much weight to the applicant's prior convictions and that he erred by finding with respect to them that the applicant had been motivated by unlawful self enrichment. For the applicant it was submitted that such a finding was at odds with the findings of the Court of Criminal Appeal.

500. It will be recalled that 22 convictions for obtaining financial advantage by deception were involved. These convictions were initially incurred on 14 June, 1990 in the County Court at Melbourne. The applicant pleaded guilty. There were later proceedings in the Court of Criminal Appeal in the nature of an application for leave to appeal against sentence which was successful. Ultimately, the applicant was sentenced to a total effective term of three years and six months' imprisonment with a minimum term of two years and six months.

503. These convictions were mentioned on several occasions on the plea. When senior counsel for the applicant first adverted to the prior convictions, his Honour remarked "There is a relevance in the prior there". Upon counsel assenting to this, his Honour added, "A quick quid, that is the relevance".

506. Senior counsel went on to submit, as to the prior convictions, that money dishonestly obtained by the applicant was "ploughed into the business - - to keep the business rolling along", which submission referred to a company in dire financial circumstances of which the applicant was the Chief Executive Officer. Counsel disputed that there had been a direct personal gain from the applicant's fraudulent activities. Later in the plea, again referring to the prior convictions, the learned judge noted they were for a different offence "But one that has a similarity, in that it was an attempt to get easy money fast". Counsel demurred to this, whereupon his Honour said, "Perhaps I'll rephrase myself and say get money the easy way".

509. The Crown Prosecutor does not appear to have put submissions about the prior convictions contrary to those advanced for the applicant.

512. In his reasons for sentence, his Honour said, after noting the prior convictions:

"The nature of those prior convictions is such that they are relevant to my task of sentencing you today. Although they are of a somewhat different nature in that they are not drug offences and cannot now be regarded as being particularly recent, they were also crimes committed by you as a means of unlawful self enrichment and in that case as well as this, vast sums of money were involved - some millions of dollars." (During the plea, and referring to the sum "involved" in the prior convictions, his Honour had enquired "2.2 million, wasn't it?")

516. The judgment of the Court of Criminal Appeal, (Crockett, Murphy and Vincent, JJ.) delivered on 23 August, 1990, contains a detailed account of the applicant's prior criminal activities. Between 19 April, 1984 and 17 September, 1987 the applicant dishonestly obtained unsecured loans from the Australian Guarantee Corporation Limited totalling 2.2 million dollars. The applicant's method was to persuade this finance company to enter lease finance agreements in relation to plant and equipment. In all but one instance the items of equipment did not exist. Crockett, J., speaking for the court, gave the following description of the consequences of the applicant's offences.

"Whilst borrowings pursuant to such a scheme were taking place, repayments were being made to AGC under certain of the leases until October 1987 when the lessees defaulted on all agreements. The greater part of the moneys wrongfully borrowed in those circumstances found their way back to AGC under the repayments procedures to which I have referred. When detection of the offences occurred the net loss to AGC was seen to be approximately $500,000. Not any of the moneys so dishonestly procured found their way into the applicant's pocket: they were ploughed into the business ventures that he was operating. These appear to have been hopelessly short of cash liquidity and, as they in turn headed for financial disaster, so too were the moneys designed to assist their continuance themselves lost. In these circumstances detection of the commission of the offences was inevitable."

520. In the light of the foregoing, we think this ground must be upheld. It follows that the sentencing process in the court below is vitiated and it falls to this Court to re-sentence the applicant. The maximum penalties available are, count 1 - 25 years' imprisonment and or a fine of $100,000, subject to s.235(3); Count 2 - life imprisonment. The learned judge made findings as to the quantities of heroin involved which have not been disputed. They were, for the purposes of count 2, 8.4 kilograms gross and 6.5 kilograms pure. (As to count 1, it will be recalled that in the controlled delivery most of the heroin had been removed and replaced by another substance.)

523. Much debate occurred in the court below as to the applicant's role for sentencing purposes. It was submitted on his behalf that it had not been specified during the trial just what his role was. In his reasons for sentence the learned judge found the applicant to be "a principal offender, though certainly not as the only principal offender".

526. If we may respectfully say so, since the sentencing of the applicant much relevant assistance has been provided by the decision of the High Court (Gleeson, C.J., Gaudron, Kirby, Hayne and Callinan, JJ.) in R. v. Olbrich [1999] HCA 54; (1999) 73 A.L.J.R. 1550. That was a case where the offender pleaded guilty to importing a trafficable quantity of heroin into Australia (1.6 kg of powder containing 1.184 kg of pure heroin). The primary judge refused to regard the offender as a courier and sentenced him to eight and a half years' imprisonment with a non-parole period of six years. The Court of Criminal Appeal of New South Wales, holding that the identification of the precise nature of the offender's involvement in an importation of drugs was an essential part of the sentencing process and that the primary judge had not done this, remitted the matter for re-sentencing. The Crown appealed. The High Court, by majority (Kirby, J. dissenting) reversed the decision of the Court of Criminal Appeal. From the majority judgment the following statements of principle may be gleaned:-

1. The identification of the precise nature of an offender's involvement in the act of importation of drugs is not an essential aspect of the sentencing process. (See para.[13]).

2. For sentencing purposes, concentration should be on what it was that the offender actually did, in the setting of the offence for which he stood to be sentenced. (See paras.[19] and [21].)

3. R. v. Storey [1998] 1 V.R. 359 is to be followed as to the onus and standard of proof of sentencing facts adverse and favourable to an offender. (See paras.[24] and [27].)

532. Care must be taken, however, not to misunderstand what the High Court said in Olbrich, especially as to what the majority intended to connote by the first principle. The proposition was provoked by Spigelman, C.J. `s statement ((1998) 45 N.S.W.L.R. 538 at 544) that identification of the "precise nature" of the offender's "involvement" was "essential". Significantly that led the New South Wales Court of Criminal Appeal to the conclusion that the absence of evidence from the Crown as to the applicant's role in the importation there under consideration meant that the Crown had failed to discharge the onus of proof resting on it as to a critical matter. In turn that had led to the allowing of the appeal and in that respect the majority of the High Court held that the Court of Criminal Appeal was in error.

535. Moreover, the majority of the High Court said (at para.[15]) that the precise nature of Olbrich's involvement was in fact known in the sense that he had brought the drugs there in question into Australia. As they put it (ibid): "He was the importer". This had led them to say (at para.[16]) that the sentencing judge was "not obliged" to enquire about the course of events before or after the importation, partly because prosecuting authorities will very often have only the "most limited" information about how the offender came to be involved, "especially" so where there is a plea of guilty. (We may comment, with the very greatest of respect, that the identical problem may arise on trial and has arisen in this case after a very long trial, where the difficulties are even greater inasmuch as the applicant cannot fairly be expected, while challenging the conviction, to come forward with factual evidence which would relate to what he has been consistently denying. The Crown, for its part, has not a jot more evidence than was necessary to procure its convictions for possession and attempting to obtain possession. At least on a plea there is often some attempt to reach agreement on the background to the offence and, in relation to mitigating facts, there is no similar inhibition upon the offender.)

538. The High Court's observations must therefore be read in the light of what it had to decide. The majority were not saying that the accused's role was irrelevant, far from it. They made clear the relevance of each offender's participation where there are several to be sentenced (at paras.[14] and [20]). Even if there be only one offender before the Court, the majority's emphasis on what the offender actually did ought to make clear that the word "involvement" relates to the offender's place in the importing organisation. They were warning courts against the artificial imposition of a test which required the "precise" role of the offender to be established before the "process" of imposing sentence could be undertaken. In short, one must do the best one can with the facts known to the court. If additional facts are to be established, whether aggravating or mitigating, they are to be dealt with in accordance with the principles adopted from Storey.

541. Likewise one should be careful about the intended general effect of the majority's statements that "the distinction between courier and principal [is] not a distinction of assistance to the primary judge": at para.[23], and see paras.[19] to [23]. So they said in para.[19], "Characterising the offender as a `courier' or a `principal' must not obscure the assessment of what the offender did". But again all they were warning against was an over-concentration on the categorisation of offenders and on what others may have done, rather than on the activities of the offender. They were in no way denying the relevance of the fact that an offender was clearly at the top or the bottom of the importing hierarchy (see para. [20]), nor the need to make comparisons where several had to be sentenced (see para. [19]).

544. That leads to a further aspect of Olbrich which is here of relevance. The present is another case where the applicant's relationship with others in the importing chain is almost a complete mystery. The Court knows virtually nothing of those responsible for sending the heroin from Thailand, except that Lu apparently kept making enquiries by telephone to somebody in that country as to what should be done next. The applicant's own known connection with the importing chain was through Lu. What would happen next and who would receive or deal with the illicitly imported heroin was either never discovered or never the subject of evidence, except that the phone calls suggested that others were either to receive the consignment or to participate in its distribution. Nevertheless, as the majority expressed the matter in Olbrich (at para.[21]):

"Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity."

548. This passage likewise makes clear the limited nature of what the majority were criticising when they said that it was not "essential" to ascertain the "precise nature" of an offender's involvement. If such information were available, so much the better, as long as it did not cause the sentencing judge to pass sentence for crimes with which the offender had not been charged (see para.[18]). They were concerned with the "process", that is the course of evidence on a plea as properly affected by the burden and standard of proof, which was the subject of that appeal; they were not there primarily concerned with the significance of the facts surrounding the applicant's commission of the offence the importance of which they emphasised. The limited, though important, point they were making has been recognised in two subsequent decisions of the New South Wales Court of Criminal Appeal, not cited to this Court as they were decided later: R. v. Bimahendali [1999] 10 N.S.W. C.C.A. 409 at para.[8]; R. v. Wong and Leung [1999] N.S.W. C.C.A. 420 at para.[133].

551. It might be thought that a concentration on what the applicant here actually did would lead to a quite different outcome from that presaged in Olbrich, although no new sentence was there pronounced, the High Court's order being limited to remitting the matter back to the Court of Criminal Appeal which, to our knowledge, has not yet finally resolved the application. Olbrich, of course, was "the importer"; the applicant here seemed to play only a brief role, whatever he might later have intended to do. What we know of the applicant is apparently confined to little more than four hours, his actual contact with the imported drugs lasting little more than half an hour during which he neither bought nor sold them, nor did he enter into any agreement or arrangement to do so. His carriage of the consignment meant that his only contact with the drugs came when he moved the bag into the boot and under the flap of his Range Rover. Apparent control rested with Lu throughout this short period. If the applicant's role was more significant, then, so it was said, any aggravating feature had to be established by the Crown beyond reasonable doubt, whereas in Olbrich the High Court recognised that offender's central role as the importer, which he could only down-play by establishing mitigatory facts. The error of the New South Wales Court of Criminal Appeal, so it would appear, was that it sought, or held it appropriate to seek, even greater clarity as to Olbrich's position in the importing hierarchy than the Crown was able, or should be expected, to prove.

554. That analysis of the applicant's role, however, has a disarming but misleading simplicity. In the present case, the applicant's role was serious enough, however short it turned out to be. As with Olbrich, there was no suggestion, and no evidence to support the suggestion, that the applicant was a mere conduit, engaged in the chain of importing at a derisory fee because he was desperately poor or because it was the only way he could feed his habit. On the other side of the coin, it is important to realise that not only was there no suggestion that the applicant was playing a more serious role in the importation by committing other possible related offences, but proof of such activities would, in any event, be irrelevant to his proper sentencing. As the High Court said in Olbrich (at para.18):

"The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged. R. v. de Simoni [1981] HCA 31; (1981) 147 C.L.R. 383."

As will be seen, however, the hierarchy of offences under the Commonwealth Act is by no means obvious inasmuch as each of the offences listed under s.233A(1) attracted and attracts the same maximum penalties. It is a comparison of the quantity of the imported narcotic substances which provides the major differentiation point in fixing the penalties under s.235.

559. Consequently, although very little is known about the others involved in the importation of this consignment of heroin, except Lu, or about the applicant's role in relation to those other participants, the Court must concentrate upon what the applicant in fact did. In the circumstances what the applicant did can be characterised as a serious infraction of the law. The applicant sought to argue that because he was not the importer, because he was not a party to the importation and because he was not shown to be the purchaser or the distributor of the prohibited import, he was therefore not "significantly involved", inasmuch as he had merely come into possession or sought to come into possession of the consignment of heroin for a limited time. One should be careful not to confuse the seemingly similar charges of possession under s.233B(1)(c) with those under s.73(1) of the Drugs Poisons and Controlled Substances Act 1981. The latter is frequently invoked against small time addicts and charges thereunder are more often than not confined to them, for possession of a trafficable quantity in itself entitles the prosecuting authorities to bring a charge of trafficking, rather than possession, by reason of s.73(2) of the latter Act. On the other hand, under s.233B or any cognate provision of the Customs Act there is no equivalent offence of trafficking, or indeed of selling or dealing in prohibited narcotic imported goods. The relevant paragraphs of sub-s. 233B(1) deal with the activities of importing and incidental activities in relation thereto. Thus most of them deal with the act of importing, conspiring to import and aiding, abetting, counselling and procuring or being "in any way knowingly concerned in" the importation of prohibited imports. The only substantive offences relating to events after the importation are possession and attempting to obtain possession of narcotic goods in fact unlawfully imported into Australia or reasonably suspected of having been so imported, as well as the offence of conveying or attempting to convey narcotic goods imported into Australia. For present purposes one may ignore para.(e) which creates the offence of failing to disclose knowledge concerning the importation of prohibited imports.

562. It follows, in our opinion, that care should be taken in relation to the strictures of the High Court in Olbrich relating to the sentencing of persons for offences with which they have not been charged, under the Commonwealth scheme, there is no offence of trafficking in prohibited imports or otherwise of being involved in the distribution and marketing. (One may note that none of the offences described in the Crimes (Traffic in Narcotic Drugs and Psychotic Substances) Act 1990 is here relevant.) Thus, unless the person is charged with an offence under State law, a principal, or whatever word one wishes to use for a person in control or sharing control of an importing organisation, must be charged with offences either relating to the actual importation or with being in possession or attempting to obtain possession of the prohibited imports. That is not to say that a court is entitled to sentence offenders under the Customs Act on the basis that they have in fact trafficked in narcotic goods illegally imported into this country, but there is no reason why an offender should not be sentenced on the basis that the offender's criminal involvement can be "identified" by showing he or she was at the head (or the bottom) of some hierarchical importing organisation, if that could clearly be established: see at para. 20. We note again that the relevance of proposed sales of or other commercial dealings in narcotic goods is demonstrated by s.235(3) inasmuch as the Court is permitted to sentence on a lower scale in the case of a trafficable quantity where it is satisfied that the offender did not have those purposes in mind.

565. Here the applicant has been convicted of obtaining possession of a trafficable quantity of illegally imported narcotic goods and attempting to obtain a commercial quantity of the same, his attempt in that regard being frustrated only by the scheme for substituting a lesser quantity before it came into his hands. He is not shown to be the mastermind or a principal in the organisation which imported the goods. That much must count in his favour, or, more precisely, such a role cannot be held against him for this purpose. But he did seek to obtain possession, knowingly, of a very substantial consignment, a commercial quantity, of heroin and whether it be treated as six or eight kilograms and whether it be treated as worth $1.2 or $12 million is of little ultimate consequence. Though not the largest consignment of heroin to be imported, nor in the category which is recognised as including very large consignments (see the tabulations of Wong and Leung), it was still a very substantial quantity of heroin, capable of wreaking known and recognised havoc among those who may have come into contact with it.

568. Although the time the consignment spent in the applicant's possession was comparatively short we can say something more about the circumstances of the offending. It is clear beyond reasonable doubt that he was more than a carrier of the goods. Not only is there no suggestion that he was being paid a flat fee, appropriate for a mere "courier", for his services, but he was in fact being asked himself to make some intermediate payment, though only $2000, to one of the lesser participants, though that the precise destination of the whole sum is not precisely known. Certainly it went into the hands of Mr Lu who clearly enough had a significant role in the importing organisation and who might reasonably be expected otherwise to make such payments. So far as Lu was concerned, he was clearly familiar with his co-offender and their recorded conversation showed that they were both familiar with the drug scene, although Lu seemed to have had greater direct knowledge. It was suggested that the applicant was merely helping Lu out, as a friend, as would any friend if asked to transport something in a city with which he was not entirely familiar. We have no doubt that their conversation was inconsistent with that contention.

571. In summary, therefore, the Court is entitled, even in the absence of precise evidence as to the nature of the offender's participation, to treat these verdicts of possession and attempting to obtain possession of trafficable or commercial quantities of illegally imported narcotic substances as very serious offences, deserving, as counsel then appearing for the applicant conceded below, condign punishment. Knowingly obtaining the quantity of those substances here shown to have been found in the applicant's Range Rover implies that the attempt to obtain that quantity, and the actual obtaining of the lesser quantity, was not casual and was for a purpose other than mere personal satisfaction. A verdict that an offender is guilty of seeking to obtain a commercial quantity of drugs carries with it the implication that the offender knowingly sought to obtain a sufficiently large quantity of those drugs as satisfied the definition of "commercial quantity". According to the rules laid down in Olbrich and Storey, it is for the applicant to show that his participation in the offence was less significant, in other words the onus rested on him to prove such mitigating circumstances. Section s.235(3), referred to above, does not mean that in relation to obtaining possession of a commercial quantity offenders cannot show that their connection with obtaining such a large quantity had some less damning aspects, for example, that it was to be used personally or, to the extent that it be relevant, that the offender felt driven to commit such a serious crime in order to feed a habit. That is not the present case, nor can it be said (nor was it argued) that the applicant was merely conveying the goods from one place to another, as could have been prosecuted under paragraph 233B(1)(caa).

574. On the other hand, if there were aggravating factors, such as might have placed the applicant in a position of control in the importing or distributing organisation, evidence establishing that would have to have been proved beyond reasonable doubt. Again, the Crown did not seek to allege any such participation by the applicant. Nor did it seek to argue that he was one of the importers.

577. On behalf of the applicant it was urged that he had been sentenced on the wrong basis in that he was involved in a joint enterprise, that he was "very significantly involved" and that he should be sentenced as a principal offender. Were it not for the requirements of Olbrich and Storey, it would have been hard to say that the experienced judge, having heard and read several thousand pages of evidence on transcript and in exhibits, might not fairly have come to some such conclusions, at least if one accepted that the word "principal" means only a person with "significant responsibilities within a drug ... importing chain", as Kirby, J. defined it in Olbrich at para.[60]. His Honour was, nevertheless, well aware of the principles laid down in Storey, even though Olbrich had not yet then been decided. Other than in relation to his conclusion that the applicant was a "principal" we would think that the learned judge was entitled to reach the conclusions he did upon the requisite standard of proof in relation to the applicant. That word was, however, stringently criticised by the majority in Olbrich at paras.[19]-[23]. If the judge had meant that the applicant was one of the heads of an importing or distributing organisation with significant responsibilities for its day to day activities, then there would not have been sufficient material to reach that conclusion beyond reasonable doubt. But the judge used merely the expression "principal offender" and by that we would doubt that he meant anything more than what he had already said, and correctly said, namely that he was significantly involved in a "commercial" drug distribution scheme, a conclusion which an examination of the plea transcript would confirm.

580. In the present case the following matters may be taken to have been established beyond reasonable doubt and we would so conclude:

(i) The co-offender Lu was significantly involved in both the importation and the distribution of the large quantity of heroin brought in, as may be seen by his attempts to communicate with Hong Kong and Thailand for the purpose of taking further steps to deal with the consignment.

(ii) At the relevant time Lu was obtaining the consignment from the "courier" Termsrisuk in order to put it in the chain for distribution.

(iii) The applicant knowingly facilitated Lu's collection of the consignment and well knew what he had on board his Range Rover inasmuch as he deliberately took steps to hide it from general view. At the very least it seems that he would have delivered the consignment to Lu's hotel so that Lu might further deal with it in the distribution chain.

(iv) The applicant had provided Lu with his own mobile telephone for Lu's own business use and connived in its being used for collecting the consignment and seeking to make arrangements for the subsequent distribution of the consignment.

(v) At Lu's request the applicant provided a small sum of money ($2000) to Lu for a purpose or purposes connected with the offences including payment of the courier's expenses.

(vi) The applicant not only collected and was prepared to deliver the consignment but was prepared to drive his co-offender Lu for the purpose of collecting and dealing with those goods.

586. As to these matters it is desirable to refer to two submissions made to the sentencing judge by senior counsel then appearing for the applicant. The first was that Lu exhibited by his conduct and conversation a familiarity with the illicit drug scene. The second was that "Lu and therefore Nicholas's role, if this is a joint enterprise, seems to be to get the drugs from (indistinct) to a position where they can be delivered to buyers". Otherwise as to the applicant's role we are constrained by the lack of further information concerning it and our inability to find further facts upon the required standards. However, we would also conclude that the reason for the applicant's involvement in these offences was monetary gain, which we think is incontestable, having regard to the quantities of heroin involved, the applicant's knowledge of it and the nature of his conversation with Lu. We find it unnecessary to attach any particular label to the applicant's role in the criminal transaction such as "principal", but it seems beyond dispute that the offences were committed jointly with Lu and that thereby he was significantly involved with Lu, although not having the knowledge or apparent authority that Lu had in relation to the transaction overall.

589. Otherwise, we take into account the matters favourable to the applicant which were mentioned by the sentencing judge. Although ground 3 complains of insufficient weight being given below to the medical evidence, it has not been suggested that his Honour overlooked any of the favourable or mitigating matters. We are now also able to take into account the further materials tendered on this appeal. In our view, as counsel for the applicant conceded in the court below, the matter of general deterrence must be reflected in any sentence imposed, but we consider that its effect ought to be moderated by reason of the medical evidence tendered on behalf of the applicant. Senior counsel for the applicant acknowledged on a number of occasions on the plea that his punishment should be condign. In all the circumstances, we consider it appropriate that the applicant be sentenced to be imprisoned for eight years' imprisonment on count 1 and twelve years' imprisonment on count 2 with each of those sentences to commence this day making for a total effective sentence of twelve years' imprisonment. The Court fixes a non-parole period of eight years and will make a declaration as to pre-sentence detention. The application for leave to appeal against sentence is allowed accordingly.

COURTS and JUDGES - Judges - Disqualification for bias - Reasonable apprehension of bias - Where judge previously advised applicant in unrelated matter - Application refused.

619. Before the applications for leave to appeal against conviction and sentence were called on for hearing, counsel for the applicant informed the Court that he wished to submit that I should not sit as a member of the Court to hear the matters. The applicant has sought leave to appeal against conviction on one count of possession of heroin which was unlawfully imported into Australia and one count of attempting to obtain such heroin. The amount involved in the first count was not less than a trafficable quantity; in respect of the second count, the quantity of heroin was not less than a commercial quantity. There is a like application in respect of the total effective sentence that was imposed on him of 15 years' imprisonment with a minimum period of ten years.

622. Mr. Holdenson, who argued this aspect of the case for the applicant, submitted that I should hear the application for my disqualification alone, in the absence of the other two members of the Court. The Court acceded to that submission and, in the event, I alone heard the application for my disqualification.

625. The application was made on the ground of perceived bias which was said to arise from the claim that, so far as the applicant could recollect, I advised him in conference in about 1980 or 1981 in respect of charges that had been brought against him by the Commissioner for Corporate Affairs under the Companies Act 1961, involving, so it was said by the applicant, his alleged failure to declare that one of his companies, Mid-Eastern Minerals NL, of which he was Chairman of Directors, was a substantial shareholder in Metals Exploration Limited.

628. In the affidavit which was sworn by the applicant's solicitor on 22 October 1999 in support of the application, the solicitor states that the applicant also told him that in respect of the above charges -

(a) the allegations against him included dishonesty on his part;

(b) he maintained that "he had no knowledge of any breaches of the Act"; and

(c) he was convicted of the offence in the Magistrates' Court and gave instructions to have the conviction reviewed by a judge of this Court.

634. It is not alleged, as I understand it, that I appeared for the applicant in relation to the above prosecution, nor is it alleged that I am or might be motivated by actual bias.

637. In my view, it is appropriate that I should state at the outset my recollection of the circumstances of the relevant matters about which I informed counsel before he made his submissions. I told counsel that I have no recollection of the applicant or of having ever met him, in conference or otherwise. When I was informed that this application would be made, I analysed the fee book which I kept as a barrister to see if the information in it may shed some light on the issue. It shows that between December 1980 and May 1982 there were four occasions when I settled court documents for a defendant named Nicholas in a proceeding brought against him by the ANZ Bank. I assume, of course, that the defendant in that proceeding is the applicant. The entries did not show that I had a conference with him in relation to the settlement of those documents. There is also an entry in the fee book on 26 August 1980 which shows that I gave advice to "D.M. Nicholas", who, it is fair to assume, is the applicant. The entry does not show whether the advice was given in conference, in writing, or both. There is also nothing to indicate that the advice had anything to do with any of the applicant's companies to which I have referred, or any other entities that may have been associated with him. I note, however, that this entry was made only a few months before the entries which show that I settled documents pertaining to interlocutory proceedings in which the ANZ Bank was the plaintiff.

640. After I gave counsel for the applicant this information, his instructing solicitor conferred with the applicant. I was then informed by Mr. Holdenson that his client contended that the conference during which I advised him was held on or about 26 August 1980 and, as he has mentioned previously, the advice related to the charges that were laid against him under the Companies Act. I was not told, however, what information was given to me during the conference or what advice I tendered to the applicant. It is obvious, nevertheless, that if the advice that I gave during the conference concerned the laying of the charges against the applicant under the Companies Act, I would have been told about the circumstances surrounding the relevant transactions and the applicant's involvement or non-involvement in them. I also assume that, having regard to the solicitor's affidavit to which I have referred earlier, the applicant also told me that he had no knowledge of any breaches of the Companies Act arising from such transactions. Beyond that, in the circumstances, it cannot be said what information had been conveyed to me for the purpose of the conference.

643. Mr. Holdenson submitted, in effect, that the applications for leave to appeal will or may give rise to a number of issues that are of relevance to the present application. In respect of the application for leave to appeal against conviction, he said, they include -

(a) a possible consideration of the proviso to s.568(1) of the Crimes Act 1958, which may involve in turn, consideration of the merits of the defence conducted at the trial and therefore the applicant's sworn evidence which was attacked by the prosecution;

(b) in the context of an attack on the validity of the warrants that were issued by Einfeld, J., there may arise for consideration the proper application of the discretion under Bunning v. Cross.

In respect of the application for leave to appeal against sentence, the issues that could arise, said Mr. Holdenson, include -

(a) an assessment of the applicant's previous character, his prior convictions, his motivation for engaging in conduct leading to prior convictions, and what motivated him to engage in the conduct which led to the convictions under challenge;

(b) the role played by the applicant in comparison with the alleged co-offender Lu in the course of conduct which gave rise to the two convictions under challenge. It was said that his Honour's finding on that issue will be challenged;

(c) whether in all the circumstances the sentence is manifestly excessive. This would invoke the intuitive synthesis of the Court as to what should be, or should have been, the appropriate sentence passed.

649. Mr. Holdenson submitted that during my conference with the applicant, I must have obtained information from him, directly or indirectly, about his business dealings and was therefore placed in a position to form an attitude or reach a view about the applicant as to a number of matters. They would have included, Mr. Holdenson contended, the integrity, honesty, credibility and veracity of the applicant, his financial motives, how he may conduct himself as a witness in proceedings, and the manner in which he conducted himself or might conduct himself personally and in the business context. It was Mr. Holdenson's contention that these matters may have been raised, directly or indirectly, or may have been matters on which I may have formed views, bearing in mind that the allegations against the applicant by the Commissioner for Corporate Affairs involved dishonesty, or at least sharp practice.

652. Although in a sense, anything is possible, it seems to me that it is speculation whether I would or may have formed the views suggested by Mr. Holdenson, having regard to the following: the offences with which the applicant was charged were statutory offences, I did not appear for him, he maintained that he had no knowledge of any of the breaches of the Act and I was not told, even in the broadest of terms, what information was given to me about the applicant or his dealings.

655. Mr. Holdenson also contended that the rationale behind legal professional privilege would be undermined if the lawyer with whom the client communicated with complete confidence, were later to sit as a judge in a case in which the former client was a litigant. The risk would be present that the judge, in deciding the case, may use, however inadvertently, at least some of the information that was communicated to him or her during the former lawyer-client relationship. Mr. Holdenson pointed out by way of example, that there may be cases where a person who has been charged with an offence informs his counsel what he did, and even characterises himself as a criminal. It cannot be right, he contended, that, years later, counsel to whom the client confessed criminality could sit in judgment on the client, even though he may have no recollection of what he was told or has ceased to have any familiarity with the former client. The confession may affect the subconscious consideration by the judge of the issues before him or her.

658. It seems obvious enough that if there is a real, as distinct from a fanciful, risk of that occurring a judge should be disqualified on the ground of perceived bias. There is no need, however, to resort to the principle of legal professional privilege in order to reach that conclusion.

661. Mr. Holdenson submitted, and I accept, that the test for determining perceived bias is whether a reasonable fair-minded observer seized of the material objective facts might entertain a reasonable apprehension that the relevant member of the court might not bring an impartial and unprejudiced mind to the resolution of the issue or issues that will or may arise in the proceeding. There are many cases in which this test has been laid down and applied. They are well known and there is no need to repeat them.

664. Mr. Holdenson referred to what Dawson, J. said in Grassby v. R. [1989] HCA 45; (1989) 168 C.L.R. 1, at 20, namely:

"The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him."

668. It was Mr. Holdenson's contention that this passage lends support for the view that one of the matters which the fair-minded person would take into account in respect of a criminal case, was the sensitivity of a person in the position of this applicant to the fact that his or her previous counsel is sitting as a judge on the case involving that person. In my view, this passage does not support Mr. Holdenson's submission. As was pointed out by Tadgell, J.A. in Gascor v. Ellicott [1997] 1 V.R. 332, at 340, the knowledge which is attributed to a fair-minded lay observer is his or her knowledge of "material objective facts". Deane, J. in Webb v. R. [1994] HCA 30; (1994) 181 C.L.R. 41, at 73, referred to it as "a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court". In my view, what Dawson, J. said in the above passage is consistent with these observations. The facts that are to be taken into account for the purpose of establishing whether there is apprehended bias, are objective facts and do not encompass the subjective concern of the litigant.

671. I should have mentioned earlier that the Crown took a neutral stand in relation to this application although its counsel submitted, in effect, that many of the concerns raised by Mr. Holdenson are without foundation because, given the grounds of appeal, the applicant's credit is not likely to be considered in the context of the leave application that relates to the conviction. As to the appeal against sentence, the question of the applicant's bad character or motive might arise only if the Court were to re-sentence him. While there is much force in those submissions, in my view, the matter should be approached on the basis that the question of the applicant's motive and the extent of his participation in the offence and his prior convictions and the circumstances surrounding them, including his motivation, may have to be considered in the course of the hearing of the applications for leave to appeal.

674. I am conscious that this is a criminal appeal, both as to conviction and sentence, which necessarily involves the liberty of the applicant so that there has to be sensitivity in respect of the application for my disqualification. Nevertheless, in my view, the test for determining whether perceived bias exists is whether there is a reasonable, not a fanciful or fantastic apprehension that I will not be able to bring an impartial or unprejudiced mind to the resolution of the issues that arise or may arise in the particular case. The test is not whether I might decide the case adversely to the applicant. The ultimate question for decision is whether, in the circumstances existing in this case, a fair-minded observer might entertain a reasonable apprehension that, because I had a conference with the applicant almost 20 years ago for the purpose of tendering him legal advice in relation to a prosecution brought against him for breach or breaches of the Companies Act, in the course of which I would have received instructions pertaining to that matter, I might not bring to bear an impartial and unprejudiced mind to the resolution of the issues that might arise in the applications for leave to appeal, both from the point of view of the applicant and the Crown. As Tadgell, J.A. pointed out in Gascor v. Ellicott, at 342, "the court is to be satisfied that the criterion is met, not that it might be met."

677. In that context, it is important to bear in mind what Mason, J. said in Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 C.L.R. 342, at 352:

"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

See also Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 C.L.R. 288, at 294.

682. I note also that in S.& M. Motor Repairs Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1988) 12 N.S.W.L.R. 358, which involved, inter alia, contempt proceedings commenced by the respondent for whom Bryson, J. had acted over a very long period before going to the Bench, the majority of the Court of Appeal found that his Honour properly refused to disqualify himself on the ground of perceived bias, notwithstanding that he left practice only a relatively short time before undertaking the case before him.

685. It is trite that no litigant has the right to choose which judge will hear his or her case. The reasons for that are obvious. I should not be taken to imply by what I have just said that I have formed the view that the applicant is seeking to achieve that result by his application. I mentioned this only because the other side of that coin is that the judge cannot choose which litigant's case he or she will hear. Subject to administrative considerations, a judge is under a duty to hear the case that has been assigned to him or her unless exceptional circumstances require that the judge not sit on it. Such circumstances include a reasonable but not fanciful apprehension of bias on the part of the judge. In my view, it is not the case that, merely because at some stage in the past the judge has acted as lawyer for the person who is now before the court, he or she must be disqualified on the ground of perceived bias. Judges frequently hear, quite properly, cases involving their former clients. It would be a serious impediment to the administration of justice if judges would be automatically disqualified because they had previously acted for or conferred with a litigant before them. In many such situations, the requisite degree of apprehension may be established. In some cases it will be blindingly obvious. But it will not arise automatically. Each case must be determined on its own facts.

688. In this case, the fact that I have advised the applicant in relation to an unrelated prosecution over 19 years ago, where it has not been alleged that any specific relevant information has been imparted to me, and given my understanding of the situation as I have described earlier, I do not believe that a fair-minded person, seized of all the relevant facts might take the view that I might be biased in the resolution of issues that arise in the applications for leave to appeal, either for the applicant or the Crown.

691. Consequently, I am unable to accede to the application that I disqualify myself from sitting on this appeal by reason of perceived bias.

FIRST CONVERSATION HOTEL COMO BETWEEN LU AND TERMSERUK

(inaudible conversation)

Foreign Conversation translated as:-

T: Please sit down

L: Yes

T: Sit down please sit down may be do you speak (inaudible)

L: Speak to much don't speak (English conversation) "cannot speak"

T: Ah can't speak much

L: (inaudible)

T: Little bit do you go to Thailand often

L: What did you say

T: Do you go to Thailand often

L: Ipoh State

T: Ipoh State oh I see (inaudible)

L: Is it hmm hmm

T: Do you want to have a look first

L: Ha what

T: Have a look first

L: Don't look no bring it down what (foreign conversation ends)

English conversation begins:-

T: You want to see first

L: Might go in the room now

T: You see first

L: Go to room first

T: Something wrong

L: No no nothing wrong I just want to be sure

T: Mm Huh

L: Because must because this I'm I'm no good (inaudible) to want to check first

T: Huh huh

L: Is it right

T: Yes yes

L: Don't worry but (inaudible) but just want to be very sure

T: Ah huh hmm hmm

L: (Foreign language translated as) "Keep calm"

T: Ah I think you want to you you see sam sample.

L: No need to see (inaudible)

T: Not necessary

L: What for

T: Because of that (laughter)

L: (foreign language translated as) "is there a guarantee" guaranteed ah I don't know is that ah huh (foreign language translated as) "is that right is it" (foreign language translated as) "No problems" Ah huh

T: Should be ok

L: Mm hmm

T: Ah it ah what you think about it

L: What do you think any time now

T: Ah as soon as possible

L: Ah (inaudible)

T: I try to contact you and they give me the wrong number you know

L: (foreign language translated as) "fuck wife"

T: Wrong number

L: (foriegn language translated as) "oh one six"

T: Ah soon (foreign language translated as) "oh six (one?) three one three seven seveneight four two hasn't got number one" I try to contact Chuck Pong this morning don't call back but hey but (inaudible)

L: I only come by taxi I never asked my man to come you know but of course I better meet you first so better I ask you (inaudible) you know I use my man to come otherwise (inaudible)

T: (foreign language translated as) "but I don't want it with me for a long time understand" one two three take it off a long time

L: Yeah yeah yeah (inaudible) any time ok any time ok (inaudible)

T: You can not take it now

L: (inaudible)

T: Hmm

L: (inaudible) you stay here how many days

T: Just two days two three days

L: (inaudible)

T: Hmm it's in my room

L: (inaudible)

T: I try to contact you to contact ah Bangkok but very very difficult to call contact to the mobile phone (inaudible)

L: Oh (inaudible) telephone

T: (inaudible) cannot (foreign language translated as) (inaudible) "Downstairs"

L: (foreign language translated as) "Have a meal"

T: (foreign language translated as) "I think you should take it now I'm finding my way home"

L: (foreign language translated as) "You want to check out no good no problems no problems go upstairs my man" (inaudible)

T: Yes (foreign language translated as) "no problems" no

L: (foreign language translated as) "kind no problems kinder"

T: I take from ah (inaudible) oh you want to take more no good

L: (inaudible) don't worry by then all gone

T: Hmm Hmm

L: I tell myself (inaudible) first time security (inaudible)

T: Mmm Hmm

L: (inaudible) (laughter)

T: (foreign language translated as) **"**It's cold in here isn't it"

L: Huh

T: (foreign language translated as) "It is cold" it is cold

L: It is very cold yes

T: Yeah very cold I I think you want to see sample I take you (foreign language translated as) "today" you know

L: Ok I take away now

T: (foreign language translated as) "I'll put it in upstairs" put it all together and I will bring

L: No no no

T: Small bag

L: No no no

T: It's very simple

L: I never bring bag

T: What

L: I never bring bag I never bring my bag

T: Uh huh

L: (foreign language translated as) "Has packing" (inaudible)

N: Daa nylon bag ah (inaudible) very simple

L: Very simple

T: Very simple

L: Has paper

T: Yes yes

L: (foreign language translated as) "Keep cool" yeah ok eh

T: You can pay me now

L: Uh

T: Pay me now

L: Pay (inaudible) not to far (inaudible) walking (inaudible) you get pay no problem I get maybe shopping I pay when you come back come back you ready I (inaudible)

T: Ah I want to go outside

L: Oh you don't go

T: Because I just my asian guy here you know

L: Huh

T: (foreign conversation translated as) "I think only me (inaudible) here" I just look around

L: Hmm mmm (inaudible) ah (inaudible) near to ten o'clock

T: Why

L: No asian

T: No good

L: No asian (inaudible) one except near the chinatown

T: Huh huh huh huh

L: Many times

T: Huh huh

L: Many Thai's many Hong Kong many in Singapore Malaysia so (foreign conversation translated as) "there are no problems"

T: No.

L: I'll go back and take my car better.

T: Ok it's up to you uh huh (inaudible) and park it out here or

L: Ah (inaudible) its a range rover range rover

T: Uh huh

L: (foreign language translated as) "Big big"

T: Uh huh uh huh

L: Before I come I call you

T: Yes uh huh

L: I call you

T: Uh huh

L: I call you then ah ten minutes then you come down never mind I wait

T: Uh huh

L: You know

T: Uh huh I just saw your car and

L: Don't come immediately if you saw my car then you stay here one minute two minutes you look

T: Uh huh

L: If I just take out don't come

T: Ok

L: (foreign language translated as) "Understand"

T: Understand sir

L: If I take this out you go back (laughs) sleep ... don't run don't run money is yours

If I take out you just go back

T: Uh huh

L: I will call you again

T: Uh huh

L: Ok like this you look one minute then you come

T: Mmm

L: Then you come

T: Mmm

L: Good for you good for me (foreign language translates as) "isn't it"

T: Yes yes and I take it to your car

L: (inaudible) take it to my car and I drive you maybe out in the road then you come back by taxi

T: Its not necessary

L: Or you walk walking you go walk (inaudible) you must come to the car

T: I think no good if you go to together you know

L: If that's right if if I take off this you don't come If I put on then you come and then you come just on one corner and then you go down

T: Mmm

L: (foreign language translated as) "Understand"

T: Mmm

L: Then I let you go now then you (foreign language translated as) "smoke" (laughs) take a walk along

T: Mmm

L: (foreign language translated as) "Then I let you go now then you" (inaudible) then I pull it out I contact you

T: Mmm

L: Or not necessary any more

T: Hmm mmm

L: Ah

T: Hmm mmm

L: Ok

T: Uh what time it

L: (foreign conversation translated as) "Later six O'clock I'll come this is Malaysian H.K."

T: Twenty more

L: Now is six

T: Six

L: Eight o'clock o'clock nine o'clock

T: Nine o'clock you will come back nine o'clock

T: Why take a long time

T: (inaudible)

L: But this time there will be (inaudible) five minutes I call you then you come

T: Uh huh

L: (inaudible) take out Ok

T: Ok

L: (foreign conversation translated as) "Do you want money"

T: (foreign language translated as) "Don't need much just for paying hotel and others"

L: You need money

T: Yeah

L:

T: (foreign language translated as) "I think I want money to pay for hotel bill and others only" for hotel for food

L: I know I know I already they say ok two thousand ok

T: Ah

L: But now I can give you two hundred if you want or afterwards I come I give you the money

T: No problem

L: (Foreign language translated as) "Will come later"

T: Uh huh

L: (foreign language translated as) "Yes"

T: Uh huh

L: Ok (foreign language translated as) "Good night good luck"

T: (foreign language translated as) "You don't have to dig your money take it back take back"

L: (foreign language translated as) "Take it take it" don't worry no problems

T: Ah how long you live here

L: (inaudible) long time might not be

T: And you are Australian citizen

L: No

T: Cold

L: (inaudible)

T: Uh huh

L: (foreign language translated as) "Good luck"

T: Yuh

L: Ok see you back here

T: Yeah