R v Nicholas [2000] VSCA 49

R v Nicholas [2000] VSCA 49 - VSCA 2000 case summary — Zoe

[23]

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.

[38]

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.

[70]

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.

[76]

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."

[89]

"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.)

[92]

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.

[113]

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.)

[114]

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.

[118]

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.

[119]

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.

[131]

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.

[146]

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.

[151]

"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."

[165]

"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."

[213]

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.

[253]

(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

At a glance

Court

Decision date

Before

Source

Judgment (253 paragraphs)

Parties