R v Perrier, Pop & Tilley [2008] VSCA 97

CRIMINAL LAW - Conviction - Co-conspirator evidence - Whether trial judge failed to confine rule in Ahern's case to evidence of acts and declarations after accused allegedly joined conspiracy - Ahern v R [1988] HCA 39; (1988) 165 CLR 87.

CRIMINAL LAW - Conviction - Allegation conduct of defence counsel caused trial to miscarry - No miscarriage of justice - TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, R v Miletic [1997] 1 VR 593 applied.

**1 On 12 March 2003, Andrew Caddaye arrived at Melbourne Airport from Nepal. He was carrying 340 grams of heroin. Its purity ranged from 60.5 per cent to 64.2 per cent, yielding a total net weight of 208.4 grams. The wholesale value of the heroin was approximately $70 000, its street value approximately $500 000.

2 On 24 March 2005, after a trial before a County Court jury at which Caddaye gave evidence for the Crown, each of the applicants (Murray Perrier, Voicu Pop and Peter Tilley) was found guilty - together with Peter Malman - of one count of conspiracy to import not less than the trafficable quantity of heroin.[1] On 31 March 2005, Perrier was sentenced to life imprisonment; Pop to seven years and six months' imprisonment, with a non-parole period of five years and six months; and Malman to six years and six months' imprisonment, with a non-parole period of four years and four months. On 23 August 2005, Tilley was sentenced to seven years' imprisonment, with a non-parole period of five years.

3 Perrier, Pop and Tilley subsequently filed applications for leave to appeal against conviction. In the event, Tilley alone pursued a conviction appeal, Perrier and Pop abandoning theirs and persisting only with applications for leave to appeal against sentence. At the time of the hearing, the Court was informed that Perrier was suffering from cancer. He died soon after the appeal hearing was concluded. In the circumstances, the appropriate course of action is to refuse Perrier's application for leave to appeal against sentence.[2]

4 For reasons which follow, we have concluded that each application should be refused. We deal first with Tilley's application for leave to appeal against conviction.**

The importation and its aftermath[3]

**5 The drug courier, Andrew Caddaye, was a friend of Perrier's. In November 2002, Perrier contacted Caddaye and said he was looking for someone to be involved in an overseas operation, which would be profitable. Caddaye realised that Perrier was talking about heroin. He told Perrier he could not do it and suggested that Perrier contact his uncle, John Caddaye.

6 John Caddaye was then contacted by Perrier. At first he thought that Perrier was talking about taking opals overseas but soon realised that the proposal concerned importing heroin into Australia. John Caddaye at first agreed but subsequently changed his mind. Perrier then recontacted Andrew Caddaye, who agreed to take his uncle's place and travel to Nepal and bring back the heroin. Caddaye duly travelled to Nepal, on a ticket paid for by Perrier. Perrier gave him money for a hotel in Nepal. He was told to pick up 'the product' being heroin, swallow it and return. Caddaye said that initially Perrier was talking about one kilogram of heroin but this was later reduced to 700 grams. He believed he would be paid $50 000 for doing the importation.

7 Before Andrew Caddaye left, he and Perrier met Tilley twice on one day, once on his own and once together with another man (Neil 'Mud Guts' Virtue). Caddaye said in evidence that they had talked about opals, not about heroin. Tilley gave him some traveller's cheques which he said might be of use to him. They were forged cheques. Caddaye said that he was given the cheques by Tilley in the toilet at the hotel where they had met. In the event, Caddaye was not able to negotiate the forged cheques in Nepal.

8 There were lengthy delays in obtaining the heroin. When it finally arrived, it was not packaged properly and had to be repackaged. Caddaye then swallowed the heroin. He ingested 49 packages, 47 containing heroin and two containing cannabis resin. He also carried three parcels of heroin with him.

9 On his arrival at Melbourne Airport, Caddaye was intercepted by Customs officers, searched and arrested. He subsequently agreed to participate in a controlled delivery to Perrier, which resulted in Perrier's arrest.

10 That evening, Perrier participated in a tape recorded interview with officers of the Australian Federal Police, in the course of which he made extensive admissions. Relevantly to Tilley's appeal, Perrier admitted that:**

• he had paid for Caddaye's flight and given him $1500 for expenses;
• the plan was that Caddaye would bring back heroin, having first swallowed it;
• Perrier met up with Tilley early in 2003 in relation to the importation;
• Perrier was going to pass the heroin on to Tilley;
• the idea was that Perrier and Tilley would cut the heroin and that Tilley would go and sell his to the buyer, who would test its strength.

By reason of having been tried jointly with co-accused Perrier, Malman and Pop, the applicant was deprived of a fair trial, resulting in a substantial miscarriage of justice.

12 The prosecution case against Tilley was that he had conspired with Perrier, Malman and Pop to import the heroin. It was alleged that Tilley joined the conspiracy in mid-January 2003, at the behest of Perrier who needed a new financier. Tilley gave sworn evidence at the trial. He denied being part of any agreement to import heroin. His defence was that he had conspired with Perrier only in relation to dealing overseas in forged traveller's cheques.

13 No application for a separate trial was made on Tilley's behalf. The appeal submission, however, was that a substantial miscarriage of justice arose by virtue of there having been a joint trial. The central contention was that the jury must have based its guilty verdict concerning Tilley on what was said about him by Perrier in his record of interview, being evidence which was not admissible against Tilley.

14 It was submitted for Tilley that the jury's task was impossible from the outset. According to the written submission, the prosecution case against Perrier was 'overwhelming':**

The prosecution had a veritable arsenal of powerful circumstantial evidence that implicated Perrier. This evidence consisted in telephone intercept material etc dating back to June 2002. It established, convincingly, Perrier's unwavering desire to import heroin into Australia. It documented Perrier's many thwarted attempts to achieve this goal as well as escalating desperation at every failure.

Most importantly, however, the prosecution case against Perrier included evidence of Perrier having made a full confession to police - a confession that not only implicated Perrier in a conspiracy to import heroin, but one in which Perrier gave a detailed account of [Tilley's] knowledge of and role in such a conspiracy and placed [Tilley] deeper in the conspiracy than the other two co-accused, Pop and Malman.

The prosecution case against Perrier was that Perrier's confession, ultimately given in his record of interview, was true. But the facts described by Perrier in his confession formed the basis of the prosecution case against [Tilley]. These facts gave the lie to [Tilley's] assertion that he was merely conspiring to deal in forged traveller's cheques and paint. For instance, these facts, so the prosecution contended, were the true meaning that lay behind the intercepted telephone call between Perrier and [Tilley] that formed the central plank of the prosecution case in [Tilley's] trial - the call of 17 February 2003.

Nevertheless, the prosecution properly eschewed reliance upon Perrier's record of interview in the case against [Tilley] and the jury were repeatedly warned that the substance of Perrier's confession was only admissible in the case against Perrier.

The jury were placed in an invidious position in this case. They were told in the case against Perrier that Perrier's account of having conspired with [Tilley] was true. In the case against [Tilley], and in order to exclude [Tilley's] version of events beyond reasonable doubt, the jury were urged to infer facts that were identical to those facts spoken of by Perrier in his record of interview. Yet, the jury were told that they could not use the evidence found in Perrier's record of interview in the case against [Tilley].

The judicial direction warning the jury against reliance on Perrier's confession in [Tilley's] trial was asking the jury to perform a counter-intuitive and impossible task.

**15 The jury's task, so it was submitted, became even more difficult as the trial progressed. Perrier gave evidence. He retracted the confession he had made in the record of interview and said that he had agreed only to import gemstones. His evidence was that there was no conspiracy to import heroin and that Tilley was a party only to dealing in forged traveller's cheques. The prosecution then sought to discredit Perrier by cross-examining him at length as to the admissions in the record of interview. In closing, the prosecutor asserted that Perrier had lied in his evidence in order to extricate Tilley. He spent some time explaining to the jury why Perrier's evidence ought not to be accepted.

16 According to the written submission for Tilley:**

The most powerful weapon that the prosecutor had at his disposal to attack Perrier's credibility was the substance of Perrier's record of interview. To the extent that Perrier's evidence provided a "life-raft" (to use the prosecutor's words) for [Tilley], Perrier's credit reduced to vanishing point. This was because of Perrier's record of interview and the manner in which Perrier had in that record of interview given a detailed account of [Tilley's] role in conspiring to import heroin. The judge confirmed this approach to the testimony of Perrier in [Tilley's] trial. The prosecutor, admittedly when summing up against Perrier, said that Perrier's record of interview "dovetailed" with evidence never before exposed and was reliable as a consequence. The prosecutor emphasised the truth of Perrier's record of interview and said that it undercut Perrier's evidence given in the case against [Tilley].

By emphasising the truth of Perrier's account given in his record of interview and by inviting the jury to rely upon that account so as to reject Perrier's evidence given in [Tilley's] trial, the contents of Perrier's record of interview must, realistically speaking, have intruded into [Tilley's] trial. Asking the jury to accept the truth of Perrier's record of interview in the case against [Tilley] so as to discredit evidence given in [Tilley's] trial but then telling the jury that the contents of that interview were inadmissible in [Tilley's] trial, again, it is submitted, placed the jury in an impossible situation. The point was reached where the judicial warning became ineffective, or there was an unacceptable risk that this was so.

**17 So poorly did Perrier perform under cross-examination that 'everyone was laughing', Tilley's counsel argued. Perrier was 'humiliated, the subject of derision', and this had the effect - so it was argued - of confirming the truth of Perrier's confession and his inculpation of Tilley.

18 As Winneke P said in R v Alexander and McKenzie,[4] where an appellate court is asked to set aside a verdict on the ground that a miscarriage has occurred as a consequence of the accused being tried jointly with the co-accused, the 'essential issue to be considered is whether any real injustice has been done to the applicant, as otherwise the proviso ... can be applied.'[5] We are satisfied that no miscarriage of justice was suffered by the applicant as a consequence of the joint trial. Shortly stated, our reasons are these. First, a considered decision was evidently made by counsel for Tilley, before the trial, not to seek a separate trial. It was, as will be seen, an entirely understandable decision, no doubt made after an evaluation of potential forensic advantages and disadvantages. Now, as we perceive it, complaint is made that, as it turned out, a forensic disadvantage was sustained. But in our view that complaint rests, despite the elaborate argument which we have detailed, essentially upon the fact of Tilley's conviction. Secondly, the Crown case against Tilley was strong independently of the content of Perrier's record of interview.

19 As to the first point, the sequence of events was as follows. On 7 June 2004, the proceedings were listed for legal argument before the trial judge. On that day, counsel for Perrier informed the court that he had no applications to make. Counsel for Tilley advised her Honour that Tilley would be applying for a separate trial. Counsel for Pop and Malman respectively advised the court that they required further time to consider their position. The matters were adjourned to the following day for argument.

20 The following day (8 June 2004), counsel for Pop and counsel for Tilley both informed the court that there would be no application for separate trials. Counsel for Malman stated that, there being no application by either Pop or Tilley, he had no application to make.

21 Clearly, counsel for Tilley made the decision not to seek a separate trial after having had the opportunity to consider the matter overnight and, it can be assumed, to confer with counsel for the other defendants. In thus consenting to a joint trial, Tilley accepted the risk that Perrier would give evidence, as senior counsel for Tilley quite properly conceded. Indeed, it seems likely, as Vincent JA suggested in argument, that Tilley hoped and expected that Perrier would give evidence, and that it would be to Tilley's advantage. That was the effect of Perrier's evidence in chief. That evidence, which exculpated Tilley and corroborated the account which Tilley himself was to give of the nature of his own involvement, was admissible in Tilley's trial. As discussed below, the cross-examination of Perrier on behalf of Tilley was directed at maximising the benefit of Perrier's exculpatory account.

22 But just as there were potential benefits for Tilley if Perrier gave evidence, so too there were potential risks. The principal reason for Perrier to give evidence would be to try and negate the effect of the admissions in the record of interview. If he were to embark on that course, it was inevitable that those admissions would provide a powerful basis for cross-examination by the prosecutor. Plainly enough, therefore, it was a course of action which might indirectly impact, in an adverse way, upon Tilley. Perrier's credit would be strenuously attacked on the basis of the record of interview. If that attack succeeded, it would mean the rejection of evidence given in court, admissible in Tilley's trial, which exculpated him and upon which, to a significant extent, he relied. Further, the force of the record of interview - including the passages implicating Tilley - would be strengthened. That is so although those passages would not constitute evidence against Tilley of the offence alleged against him.

23 It is one thing to say that the course which was taken created risks for Tilley. It is another question whether a miscarriage of justice was occasioned to Tilley if - as is now asserted - the risks eventuated. It is complained, with the benefit of hindsight, that the exculpatory impact of Perrier's evidence-in-chief concerning Tilley was overwhelmed by the negative impact of cross-examination of Perrier directed to the latter's credit. That cross-examination touched upon, inter alia, Tilley's role in the criminal enterprise for which the Crown contended. But, even if that was so, it would not follow that a miscarriage of justice was occasioned to Tilley.

24 Nothing to Tilley's advantage can be made out of the fact that the jury found him guilty. As we later describe, there was a substantial body of admissible evidence which implicated him in the alleged criminal enterprise. Had he been separately tried, a no-case submission would have been doomed to failure. It is noteworthy that, as will be seen, his counsel in fact pursued a no-case submission in the joint trial and for that purpose relied upon concessions made by Perrier. Further, had Tilley not given evidence in a separate trial, we think that his conviction was assured. But if he had given evidence, his exculpatory account would have faced formidable difficulties; and would not have had such support as could be obtained from cross-examination of Perrier. The fact that an elaborate argument can now be constructed to show that the forensic decision made at trial must have resulted in a miscarriage of justice - and that it did so a fortiori as Perrier's evidence fell out - should not be permitted to obscure the reality of the situation.

25 Obviously, the present case is not one in which the applicant can rely, in this Court, upon an application for a separate trial made and refused at trial.[6] Indeed, it is the converse situation, in that an apparently considered decision was made not to seek a separate trial. That does not preclude the success of the application. But the making of what, we think, was a rational decision by trial counsel not to seek a separate trial may be some indication that a miscarriage of justice did not occur. We think it is clear that counsel must have taken into account the kinds of disadvantage of a separate trial to which we referred a moment ago. We consider also that the use which counsel made of the joint trial - his cross-examination of Perrier, and the no-case submission which he advanced - tends to confirm that the decision not to seek a separate trial was rational; and that it caused no miscarriage of justice.

26 Tilley was no 'innocent victim' of Perrier's decision to give evidence. On the contrary, Tilley (through his counsel) enthusiastically took advantage of the opportunity provided by Perrier's entry into the witness box, to seek to reinforce through Perrier every element of Tilley's own account of what had occurred.

27 Tilley's counsel cross-examined Perrier at some length, securing Perrier's concurrence with the version of events which Tilley himself would in due course give in evidence. According to that version - spelt out in some detail during the cross-examination - Tilley was having dealings with Perrier during February 2003 about a range of moneymaking ideas, variously concerning cheap paint, war medals, an antique rifle and a renovation job in St Kilda, in addition to the admitted plan to attempt to pass forged traveller's cheques abroad (for which purpose Tilley provided to Andrew Caddaye forged cheques with a face value of $5 000).

28 The judgment evidently made on Tilley's behalf - at the point when this cross-examination took place - was that Perrier's credit was, and would remain, sufficiently intact for his affirmative answers to be of material assistance to Tilley. This was a calculated risk for Tilley to take, because it necessarily involved highlighting for the jury the extensive nature of the dealings between Perrier and Tilley during January and February 2003, both before Caddaye's departure for Nepal and then during the period when he was in Nepal waiting to receive the heroin. On the other hand, it was a risk that must equally have been run had Tilley been separately tried. For it is inevitable that some explanation must have been given for the very frequent contact between the two men.

29 We have referred to a no-case submission made on Tilley's behalf. Reliance was placed, inter alia, upon matters 'acknowledged' by Perrier in cross-examination. At the same time, counsel dismissed the possible - but impermissible - impact of Perrier's record of interview in implicating Tilley as the work of 'possibly the most pathologically dishonest man you could meet'. That dual approach was not without difficulty. But it reveals a rational balancing out of potential advantages and disadvantages of a joint trial which tells against a conclusion that the trial was productive of a miscarriage of justice.

30 We turn to discrete consideration of the second reason why, in our opinion, there was no miscarriage of justice. It is understandable that Tilley elected to take his chances in a joint trial in which Perrier might give evidence. For there was a very substantial body of evidence - independent of Perrier's record of interview - which was capable of linking Tilley with the conspiracy to import, about which Andrew Caddaye would have given evidence in any separate trial of Tilley. As noted earlier, Caddaye gave evidence of meeting with Tilley before his departure for Nepal and of receiving the forged traveller's cheques from Tilley, though he was quite clear that nothing had been said about the heroin importation which he and Perrier were planning. The problem for Tilley, however, was that the telephone call records linked Tilley very closely with Perrier throughout the critical period.

31 From mid-January 2003, at the very time when Andrew Caddaye came to Melbourne to make arrangements with Perrier, there commenced what the prosecutor described as 'really a quite extraordinary level of ongoing contact' between Perrier and Tilley.

32 The call records showed that in the space of 56 days from 16 January 2003 until 12 March 2003, 127 calls were made between Perrier and Tilley, 70 of them being calls from Tilley to Perrier. The prosecutor said:**

Now, apart from the regular phone contacts between them, the majority of those phone contacts involved the conveyance of a certain amount of information between Mr Perrier and Mr Tilley but for the most part ... it involves the setting up of meetings face-to-face at a number of different locations and you hear evidence of them meeting with each other day after day after day in pub after pub after pub after park bench after pub after pub for I think a park bench creeps in on one day but meeting almost every day during the crisis weeks which come in order to speak for the reason, the Crown says, is the self same reason was the case with Mr Malman and Mr Perrier that there are some conversations too hot to handle on a phone. Indeed, sometimes the meetings that have been planned between Mr Perrier and Mr Malman in their conversations, "We need to talk" are meetings that are then postponed as a result of the need for Mr Perrier to speak to Mr Tilley taking priority.

... [T]he conversations downstream between Mr Tilley and Neil Virtue "Mud Guts" confirm that he or they did contribute funds to the venture and did so in the expectation of receiving downstream involvement in the sales of the heroin that was to be imported.

**33 The evidence disclosed a series of meetings and conversations between Perrier and Tilley - in one instance, five meetings in five days - during February 2003. Perrier kept Tilley informed and 'updated' about the developments with Caddaye in Nepal. At one point Perrier told Tilley: 'As soon as the eagle has landed I'll let you know.' The contact continued right up to the point of Caddaye's return.

34 Tilley faced obvious difficulties in explaining away[7] such an intense spate of communication - its scale, its content and its secrecy - by reference to dealings over miscellaneous money-making projects, most of which, on his account, were lawful. He was also put to saying, in effect, that the scale and content of the communications between the men - so far as they adverted to Caddaye - were explained by Tilley's concern with respect to $5000 in forged traveller's cheques. Tilley's difficulties are relevant in two ways. First, they make it understandable that he saw advantage in having Perrier corroborate his explanation. Secondly, they negate Tilley's key proposition that he was convicted because - whether or not influenced by Perrier's cross-examination by counsel for the Crown - the jury misused Perrier's record of interview. In our view, there was a powerful basis for his conviction in the evidence irrespective of the record of interview.**

(The substance of this ground was argued in support of ground 1, and as a separate ground of specific error).

**35 As noted earlier, Tilley did not become involved until early 2003. At the trial, however, evidence was led of telephone intercepts which recorded Perrier discussing a future role for Tilley as early as October 2002. The trial judge directed the jury that, in deciding whether or not a conspiracy had been proved, they could look at all of the evidence. In accordance with the rule in Ahern v R,[8] her Honour told the jury that they were entitled to use the acts and declarations of co-conspirators made in furtherance of the conspiracy as admissible against all accused as though they were the words of each accused.

36 The submission for Tilley on the appeal was that the directions did not discriminate between acts and declarations done and made before the time when Tilley allegedly joined the conspiracy and those which occurred after he became involved. It was crucial, counsel submitted, to distinguish between evidence proving the fact of the conspiracy and evidence proving the participation of a particular person in that conspiracy. The Ahern principle does not permit the evidence of a co-conspirator to prove participation by another alleged conspirator prior to the date of that person's joining in the conspiracy. The result of the judge's Ahern directions, so it was submitted, was that the jury were likely to have relied on the evidence of the earlier calls as evidence against Tilley.

37 In our view, there is no substance in this point. We do not consider that there was any sensible risk that the jury would use against Tilley evidence consisting of acts or utterances of others (in particular Perrier) at a time before Tilley himself became involved. It is plain enough - and it would have been perfectly plain to the jury - that what Perrier was doing in the period up until he found Tilley, and got him involved, had nothing to do with Tilley. The chronology laid out at length by the prosecutor made this quite clear. The case against Tilley depended upon the actual dealings between himself and Perrier (and Virtue), to which we have already referred. The fact that Perrier had spoken to others in 2002 of his desire to find and involve Tilley added nothing, in our view.**

(The substance of this ground was argued in support of ground 1, and as a separate ground of specific error).

**38 It was submitted for Tilley that the trial judge's direction to the jury on corroboration of the evidence of Andrew Caddaye failed to discriminate between corroborative evidence implicating Tilley in the conspiracy and corroborative evidence implicating other accused. This amounted, it was submitted, to an implicit invitation to the jury to consider in Tilley's case evidence that was properly admissible only against the co-accused.

39 As noted earlier, Andrew Caddaye gave no evidence which incriminated Tilley. Tilley could therefore have had no complaint about the judge's direction. Senior counsel conceded - properly in our view - that the only way in which this aspect of the corroboration direction could have affected Tilley was that the corroboration of Caddaye in relation to the heroin conspiracy with Perrier confirmed Perrier's guilt, discredited Perrier's evidence in the trial and compounded the damage caused to Tilley by Perrier's record of interview. In our view, that complaint fails for the same reasons as the main proposition which it is designed to support. This outcome was the foreseeable consequence of Tilley's decision to participate in a joint trial.**

(No oral argument was advanced in relation to grounds 1, 6 and 11. Reliance was placed on a detailed outline of submissions filed earlier in relation to those grounds.)

**40 Ground 1 contends that 'the count [of conspiracy] was duplex and the resulting conviction bad.' It was contended in the written outline that, contrary to the Crown's case that there was 'a general conspiracy to import heroin into Australia', the evidence presented was of seven distinct conspiracies. The applicant, so it was argued, was not and could not have been a party to the first six because he had, on the uncontested evidence, no involvement or knowledge at the time those conspiracies came into being.

41 No complaint of duplicity was made before or during the trial. The complaint now made after the trial is, in our view, without substance. As contended by the Crown, conspiracy is a continuing offence which lasts as long as it is being performed.[9] It remains a single conspiracy no matter who joins or leaves, as long as there are at least two people at any time acting in combination to achieve the same criminal objective.[10]

42 The case against the applicant was that he had come late to the agreement that had already been arrived at by others, some of whom had already experienced a series of 'operational failures'. The applicant then, on the Crown case, joined in the agreement in order to achieve the shared objective. This is how the trial judge explained the Crown case to the jury. The fact that the plans as to the implementation of the conspiracy changed over time did not, in our view, invalidate the characterisation of what occurred as a single conspiracy.**

Ground 6A - The Crown's opening address was unfair and combined with ground 6B caused an unsafe and unsatisfactory verdict resulting in a miscarriage of justice.

Ground 6B - The Crown Prosecutor's closing address to the jury contaminated the trial process with speculation and theories about the evidence that it caused an unsafe and unsatisfactory verdict resulting in a miscarriage of justice.

Ground 6C - The learned trial judge erred in relation to the conduct of the trial in that she allowed the Crown prosecutor to make an unfair closing address.

44 Each of the sub-grounds was supported by an extensive critique of the conduct of the prosecutor in the case. It was variously submitted that:**

• The prosecutor's opening address to the jury contaminated the trial process with highly significant misrepresentations about the evidence that caused unfairness to the applicant.
• The Crown by an inappropriate and unfair way persuaded the jury to draw inferences of fact and accept argumentative suggestions that were not properly open on the evidence and that are contrary to the evidence.
• Littered throughout the prosecutor's [closing] speech were misleading themes, unsubstantiated information, speculation and theories, some of which were not defendable in the defence's closing address.

**45 The applicant's submission points out, quite correctly, that it is the prosecutor's duty to ensure that the trial is carried out fairly. Having reviewed the transcript of the trial, we are not persuaded that there was any departure from the high standards required of the Crown, less still that there was any miscarriage of justice. The prosecutor did as he was required to do in presenting to the jury the version of events on the basis of which the defendants were being prosecuted.

46 As the prosecutor said in his opening address:**

... The real issue that is at the core of this case is the determination of the meaning and the inferences that can be properly legally drawn from the numerous recorded telephone conversations that you hear.

Accordingly, it was both necessary and appropriate for the prosecutor to delineate the inferences which the Crown said could, and should, be drawn. In opening, the prosecutor developed the Crown's account of the conspiracy at length, with vigour and some humour. In closing, the prosecutor sought - as he was perfectly entitled to do - to discredit the alternative versions propounded by the various defendants in their evidence and through their cross-examinations. Counsel for the applicant at the trial raised no objection in relation either to the Crown opening or to the closing address. This is, in the circumstances, unsurprising.

**Ground 11 - The mismanagement of the Applicant's case by defence counsel contributed to an unfair trial and a miscarriage of justice resulted.

48 The applicant contends in his outline that the case was mismanaged**

because counsel acted both incompetently and contrary to instructions. This was due to inexperience in lengthy trials, lack of funds, general incompetence or by reason of error. He failed to raise the points that may be reasonably and properly argued. He failed to lead evidence. The whole complexion of the case could have and should have been different.

The submission then sets out a list of what are said to be failures by the applicant's counsel to follow instructions. Two of these complaints concern the failure to request a separate trial either before the trial began or at any time during the trial. Many of the other complaints concerned alleged failures to lead, or object to, or highlight, particular pieces of evidence.

**49 We would not be prepared to infer, in the absence of the clearest evidence, that defence counsel ignored his instructions or acted contrary to them. On the contrary, the only inference that can be drawn is that what counsel did or did not do in the course of the trial accorded with his instructions. We have already referred specifically to the issue of the considered decision not to seek a separate trial.

50 In any case, as senior counsel for the Crown pointed out, the issue on appeal is not whether counsel followed instructions or whether he acted incompetently, but whether there has been a miscarriage of justice.[11]

51 Where an applicant contends - as Tilley does - that the conduct of his counsel caused the trial to miscarry, the appellant carries a heavy burden.[12] As McHugh J said in TKWJ v The Queen[13] -**

Ordinarily, a party is held to the way in which his or her counsel has presented the party's case. That is because counsel is in effect the party's agent. Counsel is "ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted." The discretion retained by counsel in the running of a case is very wide.

52 In R v Miletic,[14] this Court said:

In our system of law a criminal trial is adversarial in its nature and counsel is entitled, on behalf of the accused, to contest such issues as he believes ought to be contested and to do so in such manner as he believes the circumstances warrant. No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill-advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial.[15]

53 Clearly, Tilley is dissatisfied with a number of the decisions which his counsel made. (We express no view about the specific matters complained of). But he has altogether failed to demonstrate that any of those decisions resulted in a material irregularity in the trial, raising a significant possibility that the conduct affected the outcome.[16] Nor has any vitiating defect in process been identified.[17] This ground fails.

**54 As noted earlier, Perrier and Pop sought leave to appeal against sentence. The death of Perrier means that only the latter application falls for determination.

55 One ground relied on on behalf of Perrier was also advanced on behalf of Pop, whose counsel adopted the detailed argument advanced by counsel for Perrier. We deal with that ground first.**

Consideration given to the harmfulness of heroin

The learned trial judge erred by taking into account the harmful consequences, or relative harmful consequences, of the narcotic substance that was the subject of the count on the indictment upon which the applicant was sentenced.

57 Objection is taken to the following passage in the trial judge's sentencing remarks:**

All of you, for the sole reason of making a large amount of money, were prepared to and did bring to this country a drug that so pollutes and destroys the minds and bodies of our young people that their lives become no longer worth living.

The amount of crime that is caused so that people may continue to purchase this pernicious drug; the amount of heartache that is caused to the victims of those crimes; to the families of the addicts who are powerless to stop their descent into a living hell and ultimately there are often premature deaths is heartbreaking.

For those who sit in these courts on a daily basis and have to deal with and sentence these addled and addicted young people, importation of heroin is a crime high in a criminal calendar.

As you all laughed and joked your way through the planning and execution of this conspiracy not one of you spared a thought for the human misery and loss you would leave in your wake.

The Parliament clearly considers this to be a crime at the highest level of criminality, as it carries the penalty of 25 years, for you, Mr Malman, and you, Mr Pop.[18]

**58 The sentencing remarks were published in May 2005. What was said about the vice of heroin importation reflected what was then, and doubtless still is, the generally accepted view. A year after the sentencing, however, this Court published its decision in R v Pidoto and O'Dea,[19] holding that when a person was being sentenced under Victorian law for the offence of trafficking in a drug of dependence, it was not relevant for the court to consider the harmfulness, as a general matter, of the drug in question.

59 In R v Adams,[20] this Court (Buchanan, Vincent and Nettle JJA) accepted a submission made on behalf of the Commonwealth Director of Public Prosecutions that the reasoning in Pidoto and O'Dea applied equally to quantity-based drug offences under the Customs Act 1901 (Cth). The offence of which the applicant was convicted is of that type. An appeal to the High Court from that decision was dismissed.[21]

60 It can be said with some justification that the harm associated with heroin importation and trafficking is notorious, and that what the trial judge said on that subject - and the sentencing judge adopted - was uncontroversial.[22] But, for the reasons given in Pidoto, sentencing for a quantity-based drug offence was not intended to be influenced by the particular judge's perception of the harmful effects of the drug in question. It follows that it was an error for the trial judge - and the sentencing judge - to bring to bear on the sentencing question a generalised view about the harmfulness of heroin.[23]

61 Importantly for present purposes, however, the impugned remarks about heroin were followed immediately by this statement:**

The Parliament clearly considers this to be a crime at the highest level of criminality, as it carries the penalty of 25 years ..."

Consistently with what Pidoto subsequently decided, her Honour was here judging the seriousness of the offence - quite correctly - on the basis of the maximum penalty for importing that quantity of a narcotic substance.[24] The trial judge emphasised the point (in a passage not reproduced in the Tilley sentence) by saying that the maximum of 25 years 'reflects both Parliament's and the community's abhorrence of particular crimes.'

62 In our view, nothing said by the judge regarding the harm caused by heroin can have affected the sentence imposed, since her Honour was in any case treating the offence as of the utmost seriousness by reference to the maximum penalty. Not only was the error inadvertent - as her Honour could not have anticipated the change which Pidoto would make - but in this particular context it was immaterial. The exercise of the sentencing discretion was unaffected by the error.[25] This ground therefore fails.

**63 In addition to the Pidoto ground, counsel for Pop relied on parity and manifest excess. As to parity, it was submitted that, having regard to the personal circumstances of all of the applicants and to their respective roles, there was no basis for the trial judge to have discriminated between Malman and Pop on penalty. It will be recalled that Pop was sentenced to seven years and six months' imprisonment, with a non-parole period of five years and six months, while Malman was sentenced to six years and six months' imprisonment, with a non-parole period of four years and four months.

64 As the judge noted in her sentencing remarks, Malman and Pop each had one prior conviction but, in the case of Pop, it was a conviction 'of true significance and relevance to the sentencing process'. On 6 December 1996, Pop had been convicted of trafficking in heroin and sentenced to be imprisoned for three years and six months, with a non-parole period of two years and six months. By contrast, Malman's prior conviction was 'of an entirely different nature'. He had been convicted in August 1997 of obtaining financial advantage by deception and using a false name. For those offences, he was placed on a good behaviour bond for two years and ordered to pay $400 to the court fund.

65 Her Honour also drew a clear distinction between Malman and Pop on the issue of rehabilitation. She concluded that Malman had good prospects of rehabilitation, given his age and only the one 'minor indiscretion' before the commission of this offence. By contrast, her Honour said she had 'serious concerns' about Pop's prospects of rehabilitation 'considering his involvement [in this conspiracy] within four years from his release from prison after a significant sentence for offences of a related nature, that is, dealing for profit with the drug heroin.'

66 In our view, the distinguishing features to which we have referred fully justified the differential in sentence between Pop and Malman. This ground fails.

67 As to manifest excess, it was submitted that the sentence imposed on Pop was manifestly excessive having regard to his age, his good work history and his difficult background having escaped from Romania. In our view, there is no substance in this ground. As the judge found, Mr Pop was 'a full participant' in the conspiracy, who was to receive a substantial share of the profits. This was, as we have said, an importation of more than 100 times the trafficable quantity of heroin. Pop had a very significant prior conviction for heroin trafficking. In the circumstances of the case, the sentence imposed on Pop was well within the range available to the sentencing judge. This ground also fails.

[1] Criminal Code Act 1995 (Cth), s 11.5; Customs Act 1901 (Cth), s 233B(1)(b).

[2] See R v Rimon (deceased) [2003] VSCA 136; (2003) 6 VR 553.

[3] What follows is based on the Crown summary of facts prepared for the purposes of the appeal, which senior counsel for Tilley accepted.

[4] [2002] VSCA 183; (2002) 6 VR 53.

[5] Ibid 67 [31], citing R v Assim [1966] 2 QB 249, 259.

[6] Compare, for instance, R v Demirok [1976] VicRp 19; [1976] VR 244; R v Alexander and McKenzie [2002] VSCA 183; (2002) 6 VR 53.

[7] Although, of course, he bore no onus.

[8] [1988] HCA 39; (1988) 165 CLR 87.

[9] DPP v Doot [1973] AC 807, 823 (Viscount Dilhorne), 827 (Lord Pearson); R v Masters (1992) 26 NSWLR 450, 458 (Hunt CJ at CL, Allen & Badgery-Parker JJ).

[10] Saffron v R (1998) 17 NSWLR 395, 421-422 (Hope JA); R v Masters (1992) 26 NSWLR 450, 458 (Hunt CJ at CL, Allen & Badgery-Parker JJ).

[11] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.

[12] R v Miletic [1997] 1 VR 593, 597 (Winneke P, Charles and Callaway JJA).

[13] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 147 [74].

[14] [1997] 1 VR 593.

[15] Ibid 598 (Winneke P, Charles and Callaway JJA).

[16] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 622 [24] (Gummow and Hayne JJ).

[19] [2006] VSCA 185; (2006) 14 VR 269.

[20] [2007] VSCA 37.

[21] Adams v The Queen [2008] HCA 15; (2008) 244 ALR 270.

[22] Cf The Queen v D'Aloia [2006] VSCA 237, [12], [49] (Nettle JA).

[24] Customs Act 1901 (Cth), s 235(2)(d)(i).

[25] See R v Beary [2004] VSCA 229; (2004) 11 VR 151, 157-9 (Callaway JA) and the cases there cited; R v Fletcher [2002] VSCA 40, [7] (Callaway JA); Kovacevic v Mills (2000) 76 SASR 404, 407 [17]-[18] (Doyle CJ, Mullighan, Bleby and Martin JJ).