R v Phong [2005] VSCA 149

R v Phong [2005] VSCA 149 - VSCA 2005 case summary — Zoe

[6]

2 On 1 October 2001 the applicant pleaded not guilty to one count of being knowingly concerned in the importation into Australia of prohibited imports consisting of a commercial quantity of heroin contrary to s.233B(1)(d) of the Customs Act (Cth) 1901. The maximum penalty for this offence was life imprisonment. After a trial of some twenty days duration, in which the applicant did not call any evidence, on 2 November 2001 the jury returned a verdict of guilty. After a plea in mitigation the judge on 16 November 2001 convicted the applicant and sentenced him to fifteen years' and three months' imprisonment. A non-parole period of eleven years and three months was set. The applicant now seeks leave to appeal against both conviction and sentence on grounds to which I shall turn shortly. I shall deal first with the application touching conviction.

The prosecution case

3 In the first week of December 1995 a package containing 2.996 kg. of pure heroin arrived in Australia, having been sent from Bangkok to an address in Springvale. On 8 December, the package was delivered by Federal Express Courier and accepted by a Vietnamese-born man, long a resident of France, Simon Le Duc, who was waiting for the package and accepted delivery of it.

4 Le Duc was employed as a waiter in Marseilles. However, earlier in 1995, Le Duc had accepted an offer from a restaurant proprietor, one Ah Kiet (also known as François Vann La) to travel to Melbourne and await the delivery of a consignment

of heroin. By 8 December, Le Duc had been waiting in an unfurnished house in Springvale for almost three months, and for the first eight to ten weeks had been doing little else. He was regularly paid wages for waiting and bonuses totalling several thousand dollars. Le Duc's wages were paid to him by Jan Ha Le Trinh, the sister-in-law of François Vann La and the elder sister of the applicant. Jan Ha conducted a wholesale and retail children's clothing business in Abbotsford, known as Rainbow House.

5 The applicant was ordinarily a resident of Melbourne. However on 20 January 1995 he left Australia for Hong Kong stating on his outgoing passenger card that he intended to stay abroad for fourteen days visiting friends and relatives in Hong Kong. The applicant spent the remainder of 1995 living and travelling in Thailand, Hong Kong, Vietnam and/or Singapore.

6 It was the prosecution case that the applicant, François Vann La and Jan Ha were all knowingly concerned in the importation of a commercial quantity of high grade heroin from Thailand to Melbourne. The prosecution alleged that each family member played a separate, interdependent and important role. The applicant was alleged to be the originator and architect of this importation, arranging the purchase and export of the heroin from Thailand. François Vann La recruited the services of Simon Le Duc and was the major conduit of information as between the applicant and Le Duc. Jan Ha was primarily responsible for the collection, management and disbursement of the applicant's funds in Melbourne, for the receipt and transmission of substantial funds to Thailand and Hong Kong, and for assisting, paying and dealing with Simon Le Duc whilst he was present in Melbourne.

7 It was the prosecution case that the services of Le Duc, as a person from France without connections in Melbourne, were obtained in order the better to insulate the three family members from the risk of detection and apprehension. In particular Le Duc was to fulfil the essential role of the receiver of the heroin upon its delivery in Melbourne. Le Duc had already travelled from France to Melbourne on an earlier occasion in 1995, on which he had taken up residence at the same Springvale address and awaited the arrival of a consignment of heroin. François Vann La had also visited Australia at that time. On this first occasion the intended consignment of heroin had not arrived, and Le Duc had instead been directed by François Vann La to take delivery of and to store, divide and distribute a quantity of heroin which had previously been imported, and then collect payment and remit moneys to persons including François Vann La and Jan Ha.

8 It was alleged that Jan Ha in turn had arranged for the transmission of moneys overseas to Bangkok and Hong Kong, often to accounts held in the name of Orawan Chaloensap, the sister of the applicant's ex-wife. These international transfers were made in a manner designed to avoid the reporting requirements of the Financial Transaction Reports Act (Cth) 1988 and to distance Jan Ha from any involvement by her in these transactions. For this purpose Jan Ha employed other persons to negotiate most of these international money transfers. These transfers were then completed by persons who provided false details, used different banks, and always transferred amounts less than $10,000 so as to avoid the banks' statutory obligations to report transfers.

9 Le Duc was apprehended on the day he took delivery of the package of heroin on 8 December 1995. He admitted his guilt and agreed to assist investigating authorities by providing information and undertaking to give evidence. Le Duc then gave evidence on behalf of the prosecution upon the trial of the applicant and on the earlier trial of Jan Ha. He had already been sentenced to a term of imprisonment in the County Court of Victoria when the applicant's trial began.

10 Le Duc said in evidence that he had met "the boss" (the applicant) in Bangkok over a period of days, and that they spoke about issues arising out of Le Duc's criminal activities during his first trip to Australia. Le Duc said that the applicant assured him that on his second trip to Australia, his role was simply to "go to Australia and wait for [the applicant] to send the good [sic] (and sign for them)". Le Duc gave evidence that the applicant paid or authorised Le Duc's wage and expense payments while he was in Bangkok and Australia. Le Duc also stated that it had not been originally envisaged that he would fulfil any role as a collector of moneys in Australia and so he was paid a bonus when he performed these activities. He gave further evidence regarding his own assigned role in relation to the charged importation and in particular swore that two recorded telephone conversations on 8 December 1995 were between himself and the applicant and concerned the division and distribution of the delivery of heroin which had arrived earlier on 8 December. Le Duc gave evidence of earlier telephone conversations between himself and the applicant. Le Duc also identified the applicant in May 1996 from a photo board of twelve Asian male faces, at a time when Le Duc had been in custody since 8 December 1995 and the applicant had not yet returned to Australia.

11 From September 1995 onwards, warrants were issued by judges of the Federal Court of Australia for the interception of telephone calls on several services including the mobile telephone service for the clothing business conducted by Jan Ha and, later, the mobile telephone service for Simon Le Duc. Between September and December 1995 a large number of telephone calls were monitored, recorded and translated, between the applicant and Jan Ha, and in particular two calls in the Vietnamese language between the applicant and Le Duc on 8 December 1995. It was the prosecution case that the applicant telephoned Le Duc on 8 December to provide initial instructions as to how the consignment of heroin was to be divided and distributed. One of the primary issues in the case was whether the voice attributed to the applicant in the numerous intercepted telephone calls was that of the applicant. The prosecution claimed that a close analysis of these telephone calls led inescapably to the only reasonable inference that the applicant was the person speaking. Furthermore a number of more specific factors were relied on as linking the applicant to these telephone calls.

12 The recorded telephone conversations included a number of recurring themes. The prosecution alleged that the applicant and the persons to whom he spoke were acutely conscious of the potential for the interception of these telephone calls by investigating authorities. As a result the conversations were often heavily coded using a variety of expressions and other devices. Conversations of a particularly sensitive nature were conducted using public telephone services rather than the available intercepted services. Telephone numbers were kept secret from other persons involved at the periphery of the importation (including Le Duc) and even from the applicant's parents. The prosecution alleged that a close analysis of the transcribed telephone calls again led inescapably to the only reasonable inference that the applicant was knowingly concerned in the importation of heroin into Australia, and indeed that he instigated that importation and directed others including Jan Ha, François Vann La and Simon Le Duc as to their respective roles in the furtherance of that importation.

The proceedings in Hong Kong

13 On 17 February 1996 the applicant was arrested in Hong Kong. He was then held in custody until he made his first appearance at the Western Magistracy in Hong Kong on 19 February 1996. On 17 April 1996 Australian extradition evidence was formally filed in Hong Kong along with an authority to proceed signed by the Governor and the substantive extradition hearing was then fixed for 29-31 July. On 30 July 1996 at the conclusion of the contested extradition hearing, the applicant was committed to custody awaiting his surrender to Australian authorities. The applicant filed applications for judicial review and appeals to the Hong Kong Court of Appeal but these were all rejected and the final order for the applicant's surrender was signed by the Chief Executive of the Hong Kong Special Administrative Region on 5 December 1997. On 12 December 1997 the applicant arrived in Australia in the custody of officers from the National Crime Authority. The order for surrender issued in Hong Kong was made pursuant to s.31(1) of the Fugitive Offenders Ordinance (No. 23 of 1997). It was thereby ordered that the applicant be surrendered to Australia in respect of the following offences:-

[15]

The arraignment and first trial of the applicant

16 Committal proceedings took place in Melbourne in March 1998 and July 1998. On 30 July the applicant was committed to stand trial on one charge of being knowingly concerned in the importation into Australia of a prohibited import, heroin, contrary to s.233B(1)(d) of the Customs Act. The applicant entered a plea of not guilty and did not apply for bail.

17 On 8 October 1998 the indictment was filed in the County Court of Victoria, containing one count of importing into Australia prohibited imports to which s.233B of the Customs Act applied, namely narcotic goods consisting of a quantity of heroin being not less than a commercial quantity. On 4 November 1998 the applicant was arraigned before the Chief Judge of the County Court and entered a plea of not guilty, and the matter was listed for trial commencing on 12 April 1999. Various pre-trial arguments took place, and a jury of fourteen was empanelled on 23 April 1999. The trial commenced before Judge Rendit and the jury on 26 April 1999, and after a trial of twenty-three days duration the evidence was concluded on 31 May. On 11 June the jury returned a verdict of guilty on the one count in the indictment. On 9 July Judge Rendit convicted the applicant and sentenced him to sixteen years' imprisonment, fixing a non-parole period of twelve years.

The first appeal to the Court of Appeal

18 By notice of appeal dated 12 July 1999 the applicant sought leave to appeal against conviction, the principal ground for present purposes being a claim that his trial was a nullity in that he had been indicted and convicted of an offence being that of importation of a prohibited import, whereas the process by which he had been returned to Australia to face trial was one of extradition from Hong Kong on a charge of being knowingly concerned in the importation of a prohibited import contrary to s.233B(1)(d). The provisions of the Extradition Act 1988 together with the provisions of the treaty between the government of Australia and the government of Hong Kong with the material adumbrated by the government of Australia in support of such extradition provided that the applicant upon his return to Australia would only be indicted upon the offence of being knowingly concerned in the importation of a prohibited import or some offence carrying a lesser penalty. Accordingly the ground complained that the trial of the applicant proceeded ultra vires the power of the trial court and was a nullity.

19 Further grounds claimed that it was an abuse of process for the trial court to present the applicant upon a charge which to the knowledge of the Commonwealth was not the subject of the extradition proceedings which brought the applicant before the Court, and which had not been revealed to the trial court; that the applicant suffered a fundamental miscarriage of justice in being presented for trial upon a charge which had never been presented to the government of Hong Kong; and that the applicant had suffered a fundamental miscarriage of justice in that the matters previously mentioned had not been agitated before the trial court, nor referred to by those appearing on behalf of the prosecution.

20 The applicant also sought leave to appeal against sentence.

The hearing before the Court of Appeal

21 The appeal was heard by the Court of Appeal on 29 January 2001. At the outset of the appeal hearing, counsel for the Crown informed the Court that a retrial was warranted as the indictment which alleged that the applicant imported heroin into Australia had been filed in inadvertent breach of Australia's undertaking to Hong Kong.

22 The Court of Appeal then ordered that the applicant's applications for leave to appeal against conviction and sentence be granted. The conviction was quashed and the sentence set aside. The Court of Appeal ordered a new trial upon the charge of being knowingly concerned in the importation into Australia of a prohibited import to which s.233B of the Customs Act applies.

23 On 13 June 2001 the applicant wrote to the Court of Appeal seeking that it revisit the orders that had been made on 29 January. The Court declined the applicant's request and the Registrar of the Court by letter dated 18 June 2001 replied to the applicant's solicitors (Cole & Magazis) as follows:

[16]

"The Court has received your letter in this matter seeking a rehearing or further hearing of the appeal upon which your client succeeded on 29 January, 2001 accompanied by an outline of counsel's submissions. The only members of the Court presently within the jurisdiction, Brooking and Ormiston, JJ.A., have instructed me to answer your request as follows.

The principal matter raised, namely the making of an order for a new trial on the charge of being knowingly concerned in the importation of a prohibited import into Australia, was the subject of discussion between the Bench and counsel when the application came on for hearing, although the transcript covers only discussion after effective agreement had been reached by the parties as to the form of the order. As may be seen from that part of the discussion which does appear on the transcript, senior counsel then instructed by you acquiesced in the making of an order for a new trial. No reasons were formally given for the Court's orders. The Crown conceded that the argument based on the operation of the Commonwealth Extradition Act 1988 meant that the conviction on the count of importing the drug into Australia had to be quashed, but at the same time your counsel agreed that the appropriate order was that a new trial be directed on the count for which he was in fact extradited to this country. No application was made for an order that a verdict of acquittal be entered on the importation count. The count on which the Court directed a new trial was a different count, although it was the count on which your client had been committed for trial originally. Your client's counsel did not seek to persuade the Court that a verdict of acquittal be entered or that it refrain from directing a trial on the proper count, although the discussion revealed that both counsel and the Bench contemplated that an order should be made for a 'new trial', which both parties saw as being appropriate.

It was the fact that both parties saw it as appropriate, not merely to allow the appeal and quash the conviction, but also to make an order for a new trial, without there being any argument on either issue, that led the Court to state its conclusion without any additional reasons. If there had been any argument, the Court would have delivered reasons as to any matters in contention, but that was not the case.

It should be distinctly stated, that all three members of the Court had, before the hearing began, considered and discussed the question of power to order the appellant to be tried on a count of being knowingly concerned and formed the clear view that the Court had this power. Once the Court convened, there was never any suggestion by counsel for the appellant that the power did not exist or should not be exercised. Nothing in the submission now made raises any doubt in the minds of Brooking, J.A. and Ormiston, J.A. about the existence of the power or the appropriateness of its exercise.

Accordingly the Court does not propose to reconvene for the purpose of hearing any further application adumbrated by your letter or to deliver further reasons."

[17]

Further arraignment proceedings

24 On 5 April 2001 the matter was mentioned before the Chief Judge of the County Court, and his Honour granted leave to file over a fresh indictment. The indictment contained one count of being knowingly concerned in the importation into Australia of prohibited imports, namely a quantity of heroin, being not less than a commercial quantity. The Chief Judge ordered that all proceedings on the earlier indictment be stayed.

Federal Court proceedings

25 The applicant then made application to the Federal Court for relief, including seeking a writ of habeas corpus, an injunction and declarations. The application was heard on 26 and 27 June 2001 by Marshall, J., who dismissed the application on the ground that the Federal Court did not possess jurisdiction. On 18 July the applicant filed notice of appeal in the Federal Court, and his appeal was heard on 27 August 2001. Black, C.J., Beaumont and Hely, JJ. dismissed the appeal, taking the view that in the event that the Court had jurisdiction to entertain the proceedings, in the exercise of its discretion the Court declined to grant the relief sought.

Appeal to the High Court

26 The applicant also sought special leave to appeal to the High Court from the judgment of the Victorian Court of Appeal, this application being argued before the Court on 10 August 2001. The application was refused on the basis that the matter did not involve any miscarriage of justice.

The second trial

27 On 20 September 2001 the second trial commenced. The applicant was arraigned and pleaded not guilty to the single count contained within the indictment. Defence counsel then applied to stay the trial permanently on the ground that it was an abuse of process. It was argued that the prosecution of the applicant was in breach of the principle of speciality, in that a person surrendered to Australia by Hong Kong should not be detained or tried in Australia for an offence alleged to have been committed before his surrender, other than any offence in respect of which the person had been surrendered, unless that person had first had the opportunity of leaving the country. After lengthy argument on this issue had taken place, the trial judge rejected the defence application. His Honour referred to the order made by the Court of Appeal that the applicant be retried, saying -

[23]

Later the judge said, on the question of parity with the sentences imposed on Simon Le Duc and Jan Ha that "your role at the head of this scheme demands a harsher penalty than that imposed in their cases."

29 The applicant now seeks leave to appeal against both conviction and sentence, on grounds to which I shall turn shortly.

R. v. Truong[2]

30 It is convenient now to mention the case of Truong which raises substantially the same issues as the principal questions for decision in the present case. Truong was convicted in the Supreme Court of Victoria on 9 May 2000 on two charges, one of kidnapping and the other of murder, to both of which he had pleaded not guilty. The facts giving rise to his convictions were that Truong was a Vietnamese national residing in the United Kingdom. He was alleged to be the head of a network of criminals engaged in trafficking in illegal drugs. In March 1996 Truong attempted to recruit a Melbourne importer to provide assistance to his network by importing drugs into Australia. Truong threatened that there would be serious consequences for the importer and her family if she did not co-operate. The importer refused to assist Truong. In April 1996 two Vietnamese criminals, allegedly acting at Truong's direction, kidnapped the importer's son. A ransom was demanded but refused. The body of the importer's son was later found with a single gunshot wound to the head.

31 The Australian government sought Truong's extradition from the United Kingdom for a number of offences, including kidnapping, murder, conspiracy to kidnap and conspiracy to murder. In ordering the extradition of the appellant to Australia, the United Kingdom magistrate provided the certificate required by the Extradition Act 1989 (U.K.). That certificate omitted reference to the offences of kidnapping and murder, although it contained reference to conspiracy to kidnap and conspiracy to murder. Truong was ultimately surrendered by the United Kingdom on charges of conspiracy to kidnap and conspiracy to murder. However in the Supreme Court Truong was tried and convicted of kidnapping and murder.

32 In Truong's application for leave to appeal against conviction, he claimed that there had been a miscarriage of justice and that his convictions were nullities. Truong claimed that his trial had been conducted in breach of the principle of speciality contained in the Extradition Act 1988 (Cth) s.42.

33 The Court of Appeal dismissed Truong's application[3] on 26 March 2002. Truong's appeal had been argued, but not decided, shortly before the second trial of the present applicant. On Truong's further appeal to the High Court, a majority[4] dismissed the appeal concluding that the trial of Truong on the charges of kidnapping and murder did not contravene the Extradition Act 1988 (Cth) s.42(a)(i). The majority took the view that consideration of the Extradition Act 1989 (U.K.) and the speciality agreement entered into between Australia and the United Kingdom evinced no basis for a conclusion that the prosecution of Truong in Australia for kidnapping and murder was inconsistent with his surrender in respect of the conspiracy to kidnap and the conspiracy to murder. After making detailed reference to the relevant provisions of the Australian and English legislation, Gleeson, C.J., McHugh and Heydon, JJ. said[5] -

[24]

"[27] Having regard to the course of the extradition proceedings in London, we accept that the offences in respect of which the appellant was surrendered included conspiracy to kidnap and conspiracy to murder, and did not include kidnapping and murder.

[28] The question then is whether kidnapping and murder, in the circumstances of the present case, were offences of which the appellant could be convicted on proof of conduct constituting the offences in respect he was surrendered. (At the relevant time no problem existed by reason of the words in parenthesis in s.42(a)(i).) In that respect, in consequence of s.10(2), the reference to the conduct constituting the offences in respect of which he was surrendered is a reference to the acts or omissions by virtue of which those offences had, or were alleged to have, been committed. The acts or omissions by virtue of which the offences of conspiracy to kidnap and conspiracy to murder were, or were alleged to have been, committed are to be identified by reference to the Tragardh affidavit, understood in the light of the criminal law of conspiracy as it applies in Australia.

[29] The question, in our view, is not to be answered merely by a comparison of the elements of the (Australian) offences in respect of which the person has been surrendered and the (Australian) offences in respect of which he is to be, or was, tried, although an understanding of those elements is material. The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other. Nor is the relevant comparison between the bare minimum that would be necessary to make out offences of the kind under consideration. The exercise required by the statute is concrete, not abstract, and is to proceed by reference to the actual conduct alleged against the person in question. In the present case, it is also important to bear in mind that the substantive offences for which the appellant was ultimately tried were offences in respect of which his liability as a principal was based upon a statutory provision to the effect that a person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender."

[27]

PARTICULARS

The judge refused the application for a stay on the basis that the Court of Appeal had, on 29 January 2001, directed that there be a new trial of the applicant upon a charge of being knowingly concerned in the importation into Australia of a prohibited import to which s.233B of the Customs Act 1901 (Cth) applied.

34 The applicant's counsel at the trial had contended that, according to Article 18, the trial could not proceed unless, in essence, the applicant had first been afforded a forty-day grace period within which he could leave Australia. In response the Crown conceded that there had in the applicant's case been a breach of an undertaking made to the Hong Kong authorities not to try the applicant for anything other than the extradition offence. Counsel for the applicant argued that he was seeking an order that the trial be stayed as an abuse of process.

35 Mr Boyce for the applicant said that these two grounds were the real essence of the application as to conviction. He submitted in this Court that the judge's ruling quoted in paragraph [27] above, made it clear that the judge decided the stay issue without consideration of the merits of the applicant's argument on Article 18. He argued that the judge considered himself bound by the terms of the Court of Appeal's order in circumstances where his Honour "could not be satisfied that the Court of Appeal had not decided the issue raised by the applicant". He argued that an order for retrial by a superior appellate court does not amount to a mandatory order that there be a trial. Accordingly it was submitted that the trial judge's approach to the question of the stay was in error either because the judge's discretion miscarried, or because he failed to exercise jurisdiction. As a consequence, the order refusing the stay application should be set aside and the question decided afresh. If in the alternative the judge should be taken to have exercised jurisdiction or a discretion not to grant a stay, then that exercise of discretion was vitiated by error.

36 It is, I think, unnecessary to decide the question whether the judge decided the stay issue without consideration of the merits of the applicant's Article 18 argument. The principal issue now before this Court is the question whether there was a breach of the principle of speciality embodied either in Article 18 or in the Extradition Act 1988 s.42. The applicant has mounted two subsidiary arguments, first that the conduct of the second trial amounted to an abuse of process, and secondly subjected the applicant to double jeopardy. If any of these arguments succeed, the appeal must be allowed and the conviction quashed. If, on the other hand, the applicant cannot show that the conduct of the second trial was in breach of the principle of speciality, or an abuse of process, or subjected him to double jeopardy, then the application to the trial judge was in any event bound to fail. I turn then to consider the principal issues.

The applicant's argument on grounds 1 and 2

37 It was conceded at all times on behalf of the Crown, both in the second trial, and in this Court that s.42 of the Extradition Act 1988 and Article 18 of the Surrender Agreement were in force at all relevant times and applied to the case of the applicant. Accordingly, the applicant's argument commenced with the fact that his application for leave to appeal on 29 January 2001 had been allowed by virtue of the applicant having been presented on an offence other than an offence in respect of which his return was ordered under Article 18(1)(a) of the Surrender Agreement or a lesser offence as defined by Article 18(1)(b). As it was put by Ormiston, J.A. in his judgment in this Court in R. v. Truong[6], in characterising the concession made by the Crown in the present case -

[29]

The applicant was therefore, from 8 October 1998, Mr Boyce argued, "proceeded against, sentenced or detained with a view to the carrying out of any sentence for any offence committed prior to surrender", such offence being one that was other than an offence of the type referred to in the sub-paragraphs of Article 18(1), without first having had an opportunity to leave Australia.

38 Mr Boyce relied on R. v. Uxbridge Justices; ex parte Davies[7] where a defendant was imprisoned in breach of the principle of speciality after having been extradited from the United States. Donaldson, L.J.[8] quashed the order imprisoning the defendant and prohibited the making of any further order until the expiration of a thirty-day period. Mr Boyce relied on the proposition that where there has existed irregular detention of a defendant by virtue of a breach of speciality, a trial court has jurisdiction to stay the prosecution on the basis that such prosecution would amount to an abuse of process.[9]

39 Mr Boyce conceded that a stay on this basis will only be granted in cases such as "where there is in existence an extradition treaty which is knowingly circumvented by the prosecuting authorities"[10], or where the prosecution was either "a party" to the unlawful conduct or "connived at it".[11] He argued that the applicant's application for a stay in his second trial was properly made. Notwithstanding the order of the Court of Appeal quashing his conviction on the s.233B(1)(b) count, the applicant was being proceeded against by the Crown in the second trial in circumstances where it had formerly breached the principle of speciality but had not accorded the applicant the opportunity that was his due according to Article 18, namely the opportunity to leave Australia. Notwithstanding the seriousness of the offending alleged against the applicant, it was put that his detention in face of the terms of Article 18 constituted exceptional circumstances sufficient to warrant the grant of a stay. The wrongful detention of a person for any length of time, so the argument ran, is very serious, but far more serious when it occurs by dint of the breach of a principle such as that involved in the present case upon which rests "Australia's self-respect and national honour in dealing with other nations with which it has extradition arrangements."[12] Mr Boyce accepted that no point had been taken before the Court of Appeal which allowed the applicant's first appeal, that the Court could not make the order for retrial, and indeed the applicant's counsel had plainly acquiesced in this course. No suggestion of abuse of process had been made to that court. He put it, instead, that the applicant had by virtue of the order for retrial suffered irregular detention for a period of two years and three months when he should have been given for forty days the opportunity to leave the country. He accepted that the applicant could not show any deliberate disregard of the extradition treaty arrangements by the Commonwealth, and indeed that what had occurred was the result of simple mistake, shared by the applicant's counsel. He conceded that the prosecuting authorities had simply overlooked Article 18. The argument continued, however, that there had been a clear and anything but trivial breach of Article 18, and that the respondent ought to have been aware of the contents of the treaty it had made with Hong Kong. He submitted that sufficient water had now flowed under the bridge to make it an abuse of process to proceed against the applicant on the present charge. There had, so the argument ran, been wrongful detention for a period of over two years, in circumstances of the breach of an international treaty.

40 In an alternative argument, Mr Boyce put it that the prosecution of the applicant should have been stayed on the basis that he had been made subject to "double jeopardy". The applicant had already been tried and convicted of an offence that was substantially the same as that alleged on the second occasion. The prosecution in the second trial relied for its proof upon facts that were the same as those alleged at the first trial. He argued that the applicant at common law enjoyed the right not to be made subject to double jeopardy, the main rationale of which was that it prevents the unwanted harassment of an accused by multiple prosecutions.[13]

41 Mr Boyce's argument was that in the United Kingdom it has been accepted that an appeal court's power to direct that there be a new trial after a successful appeal against conviction is one that derogates from an accused's common law right not to be exposed to double jeopardy. The power granted to the Court of Criminal Appeal in the United Kingdom by the Criminal Appeal Act 1968, s.7, is quite heavily circumscribed, so it was said, when compared with the like power granted to this Court by s.568(2) of the Crimes Act 1958 (Vic.). Counsel nevertheless argued that although this Court is empowered to direct that there be a "new trial", the power vested in the Court to make a direction that there be a new trial must be viewed in the context of the accused's common law right not to be subjected to double jeopardy. It was accepted that s.568(2) was intended to permit a new trial to be had for the same offence of which an accused had been convicted, or an offence included within, or as an alternative to, such offence. Mr Boyce submitted however that it was unclear whether the section permits an order for a new trial of an accused person for an offence that was different, in the sense of not being included within or constituting an alternative to the offence on which the appellant had been previously tried. To the extent that there existed such ambiguity, it was submitted that Parliament cannot be assumed to have intended to derogate from the common law right that would otherwise protect an accused. He argued that the Court of Appeal's direction that there be a new trial in the present case on the offence with which the applicant was tried in the second trial was not sufficient to overcome any later reliance by the applicant on the principle of double jeopardy. Counsel's acquiescence in or consent to the making of the order for a new trial could be of no moment, nor could it give jurisdiction which did not otherwise exist.

Was there a breach of the principle of speciality?

42 The offence for which the applicant was first tried, that of importation of a prohibited import, carries the same potential maximum penalty as that on which the applicant was later tried, namely life imprisonment, the maximum penalty in each case being determined by the quantity of the prohibited substance imported. The facts established by the prosecution on the second trial set out by the trial judge in his sentencing reasons quoted above[14] demonstrate that the prosecution established that the applicant was the instigator of the importation of the heroin into Australia, that he remained firmly in control of the importation throughout, that he was "at the apex of this criminal conspiracy" and that his "role at the head of this scheme" demanded the penalty imposed. These facts and the whole prosecution case plainly justified the verdict that the applicant was guilty of being knowingly concerned in the importation of the heroin into Australia, but equally clearly permitted the conviction of the applicant on the different charge on which he was first tried, that of importing heroin into Australia. So much was, in effect, conceded by his counsel's outline of argument in the present appeal which, under the heading "Double Jeopardy" asserted[15] that the applicant "had already been tried and convicted of an offence that was substantially the same as the one alleged on the second occasion" and further that the prosecution, in the second trial, relied for its proof upon facts that were the same as those alleged at the first trial. It was never suggested by Mr Boyce that, if the jury accepted the evidence of Simon Le Duc that the person he spoke to on the intercepted telephone calls was the applicant, there was not sufficient evidence on which the jury could convict the appellant of either charge.

43 In Truong, the judgment of Gleeson, C.J., McHugh and Heydon, JJ. shows[16] that the exercise required by ss.42(a)(i) and 10(2) of the Extradition Act 1988 is "concrete, not abstract, and is to proceed by reference to the actual conduct alleged against the person in question". The nature of the conduct there involved was summarised in the judgment of the trial judge, Vincent, J., in his sentencing remarks[17]. As Vincent, J. said, central to the prosecution case was the contention that Truong was the controlling mind, "the shadow force" and "the shadow master" who directed all that took place in relation to the kidnapping. Very similar words were used by the trial judge in the present case when sentencing the applicant. Gleeson, C.J., McHugh and Heydon, JJ. said[18] in conclusion as to Truong that -

[31]

So also in the present case, in light of the nature of the case put against the applicant of importing prohibited imports into Australia, the acts or omissions by virtue of which he was alleged to have committed that offence were such that, on proof of those acts or omissions, he could be convicted of being knowingly concerned in the importation of a prohibited import into Australia, as he was.

44 The concession made by the Crown resulting in the applicant's first conviction being set aside was made on 29 January 2001, before Truong was argued in this Court[19]. The decision of the High Court, handed down on 4 March 2004, shows that the Crown's concession was wrongly made. In my view the first trial of the applicant on the charge of importing a prohibited import, heroin, into Australia involved no breach of the principle of speciality, embodied either in Article 18 of the Surrender Agreement or s.42 of the Extradition Act 1988.

Abuse of process

45 What has already been said is sufficient in my view to dispose of any question of abuse of process. But in deference to the arguments made in this Court I add the following. Mr Boyce's argument of abuse of process depended on the Crown's concession that in the first trial of the applicant for an offence other than that for which he had been surrendered by the Hong Kong authorities, the Crown was in breach of the principle of speciality, even though, as the Crown's counsel put it before the judge at the second trial, any such breach had been "corrected" by the Crown in effect consenting to the first conviction being set aside and seeking an order that the applicant be retried on the proper charge. This was an order in which the applicant's counsel had acquiesced.

46 The power to stay prosecutions after extradition was recognised in R. v. Hartley[20] in New Zealand, in Levinge v. Director of Custodial Services[21] in the Court of Appeal in New South Wales, and in the United Kingdom in R. v. Horseferry Road Magistrates' Court; ex parte Bennett[22]. These decisions are mentioned with approval in the judgment of Gummow and Callinan, JJ. in Truong[23]. In Levinge, McHugh, J.A. said[24] -

[43]

59 The applicant's argument under this ground went as follows. After the judge had concluded his charge, there was discussion in the presence of the jury which led to the exhibits being taken into the jury room, including two tapes of the conversations of 8 December 1995 which were alleged to have taken place between the applicant and Simon Le Duc in the Vietnamese language. The judge asked the question "Do you think you'll be listening to those tapes?" The transcript then records the prosecutor as saying "I think it might be a possibility if they're available". Mr Boyce argued that it is more probable that the answer to the judge's question was given by the foreman of the jury than by the prosecutor, but Mr Holdenson in this Court challenged that assertion and submitted that the Court ought not accept the assertion as correct.

60 The tapes were then identified to the jury by his Honour as being the Le Duc tapes which the jury had been taken through, and of which Le Duc had given his account. It is plain from the discussion which followed that the jury had a tape player in the jury room. The jury was supplied with all of the tapes of the intercepted telephone conversations, including the intercept tapes in which it was alleged that the applicant was speaking to his sister Jan Ha. The prosecution had relied upon the contents of the conversations in these tapes, conversations which had been conducted in Cantonese, to prove its case, and, as I have said, the jury also had the tapes of the final two calls made on 8 December 1995 in which the applicant was said to have been speaking to Simon Le Duc in Vietnamese after the delivery of the heroin.

61 Mr Boyce argued that it was apparent that no members of the jury spoke either Cantonese or Vietnamese, and that there was a real chance that the jury listened to at least some of the tapes, in particular the final two tapes of 8 December. In circumstances where the jury were probably unable to understand the words spoken either in Cantonese or in Vietnamese, there was, so the argument ran, no logical reason for them to listen to that material other than to make a comparison of the voices. Given the manner in which the applicant ran his defence, the jury may have had no difficulty in concluding that the applicant was the speaker to Jan Ha in Cantonese on some of the tapes. They might however still have been left in some doubt about whether the subject matter of these conversations concerned the importation of heroin. The argument continued that any doubt that a member or members of the jury might have had in this regard could have been resolved by a finding that the Vietnamese speaker on the final two tapes was the applicant. There was, Mr Boyce submitted, no doubt that if the applicant was the speaker on the final two tapes, he knew that the subject matter of the conversations concerned the importation of heroin, as distinct from money laundering. Accordingly, it was argued that the jury may well have gone about making such a finding through a process of actually listening to the tapes and then comparing the voice speaking Cantonese in the earlier tapes with the voice speaking Vietnamese on the final two tapes. Once there was a real chance that the jury would seek to identify the applicant in this manner it was incumbent, so it was submitted, upon the judge to warn the jury about the dangers of reasoning towards identity through a process of voice comparison.

62 Particular reliance was placed by Mr Boyce upon Bulejcik v. The Queen[33]. In this case the accused had made an unsworn statement at his trial on a charge of supplying a prohibited drug. An important piece of prosecution evidence was a tape recording of conversations between an undercover policeman, a police informer and a third person concerning the supply of heroin. The prosecution alleged that the third voice on the tape recording was that of the accused. The judge agreed to a request by the jury that the tape recording of the accused's unsworn statement be replayed to them at the conclusion of the summing up, and he gave the jury a warning about comparing the voice on the tape recording of the accused's unsworn statement and the voice on the police tape recording. It was held that there had been a miscarriage of justice in the jury's comparison of the two tape recordings. Toohey and Gaudron, JJ. held that the warning given was in the circumstances of that case deficient in that the jury were not told to consider the difficulties involved in distinguishing between two voices, both speaking in a particular manner, with which the jury were not familiar. Their Honours said that[34] -

[47]

63 Mr Boyce argued that if there was a possibility that the jury would reason towards identity by way of a comparison of voices, then it was necessary for the judge to give a warning. He put it that in this case there was a real chance that the jury were going to take part in a process of identification through voice comparison and yet there was no warning sought or given. It was necessary that such a warning be given so as to overcome the danger that the jury might place inordinate reliance, in concluding identity, on the fact that each voice was speaking in a language that the jury could not understand, in an Asian language, and that each voice bore the sound characteristics of an international call. He argued that these matters had the ability to suggest similarity when in fact there was none and thereby impede a clear and thorough analysis of identity.

64 Mr Boyce accepted that the necessity for warnings of this nature was weaker in the present case than in Bulejcik, since there the jury were clearly invited to make a comparison between the tape recording of the accused's unsworn statement and the tape recording of the conversation relied upon with the undercover policeman. There also had been no exception taken in the present case by defence counsel to the judge's charge in this respect.

65 In the present case there is no doubt that a primary issue was whether the voice attributed by the prosecutor to the applicant on the numerous intercepted telephone calls was in fact that of the applicant. But the evidence supporting this was given first by Simon Le Duc. For example, the two conversations of 8 December 1995 were played to him, and Le Duc identified his voice and that of the applicant. This evidence was, however, as I have said, supported by a close analysis of the contents of these calls. It was the prosecution case that such an analysis led inescapably to the only reasonable inference that the applicant was indeed the person speaking as alleged. These conversations were conducted between a person outside Australia and Jan Ha or Simon Le Duc. It was clear, the prosecution argued, that these telephone conversations, attributed to the applicant, were conducted by one individual because common threads of familiarity, subject matter, and the codes in which the participants spoke, ran throughout the entire course of these transcribed telephone conversations, sealing them with one individual signature. Some of the more specific factors which were alleged to link the applicant to these telephone calls included the conversations in which the caller spoke to Jan Ha, the applicant's sister, about various family matters included their respective children, the applicant's ex-wife, and the car she purchased around October 1995, their parents and the holiday their parents took to Hong Kong, Bangkok and China, including reports by the caller as to the parents' movements in Bangkok at a time when the applicant's parents were with him in Bangkok; conversations regarding Le Duc's meeting with the applicant at the same time that Le Duc was staying in Bangkok on route to Australia, and at a time when immigration records confirmed that the applicant was in Thailand; conversations in which the caller said matters such as "I am in Singapore", conducted at a time when immigration records confirmed that the applicant was in fact in Singapore; conversations in which the caller refers to a credit card expense incurred in Singapore, at a time when the applicant was proved to have been in Singapore and incurred just such an expense, and the conversation turned to payment of that account and the applicant's account was then paid shortly thereafter; conversations between the caller and other members of Jan Ha's family who referred to the caller as uncle or mother's younger brother; conversations between Jan Ha and Ratinai Charoensap, the applicant's ex-wife, concerning the applicant were subsequently the subject of conversations between Jan Ha and the caller said to be the applicant; and conversations in which the caller refers to his dependent children residing in Australia with their mother.

66 The prosecution also alleged that a close analysis of the transcribed telephone calls led inescapably to the only reasonable inference that the applicant was knowingly concerned in the importation of heroin into Australia, and indeed that he instigated that importation and directed others as to their respective roles in furtherance of it. This, indeed, was a major aspect of the defence case in counsel's closing address. Defence counsel repeatedly invited the jury to read the English transcripts of the intercepted evidence and submitted, in particular as to the last two calls, that the conversations were not about heroin but instead were about money laundering.

67 Mr Boyce was not able to point to any part of the addresses either of the prosecutor or defence counsel, in which the jury were invited to compare the voices speaking in the Chinese and the Vietnamese languages for the purpose of identifying the applicant as the speaker. The case made for the prosecution, to support the evidence of Le Duc himself that the applicant was talking to him, was to invite the jury to make a close analysis of the content of these calls.

68 Mr Boyce's argument that the jury may have used the tape recordings of the intercepted calls as part of a process of voice identification was based purely on speculation. The addresses of counsel and the judge's charge covered several hundred pages of transcript. Apart from the fact that Mr Boyce was not able to point to any request by either counsel or the judge to the jury to engage in the speculated comparison of voices, I have not myself been able to find any such invitation. The process of reasoning in which the jury was asked by the prosecution to embark did not involve any such comparison, and I am therefore not prepared to accept that the jury did so.

69 In any event the judge gave the jury a lengthy and very detailed warning about identification evidence directed both to the evidence of Simon Le Duc that he had identified the applicant's face from a photograph on a photo board, and also the process by which Le Duc said that he had identified the applicant's voice when he spoke to him on the mobile telephone. No exception was taken to this aspect of the judge's charge. There is no reason to think that the jury, if they had embarked on the speculated comparison, would have ignored these extended identification warnings given by the judge. As I have said, defence counsel did not seek from the judge any direction such as was said to be necessary in Bulejcik, nor was any exception in this respect taken after the charge had been completed.

70 Ground 7 fails.

Ground 4

71 Ground 4 claims that the verdict of guilty was unsafe and unsatisfactory. The applicant's argument under this ground was simply that Mr Boyce relied upon each of the grounds identified above which, it was put, although individually they may have been held not sufficient to found the requisite miscarriage of justice, when considered together cumulatively or in combination meant that the applicant had not been tried fairly or in accordance with the law. For the reasons I have given, each of the other grounds has already been rejected. Consequently this ground also must fail.

72 The application for leave to appeal against conviction should be dismissed.

The application for leave to appeal against sentence

73 I turn then to the application touching sentence, and I shall take the four grounds in the order in which they were argued -

[53]

77 Mr Boyce's argument accepted that given the judge's finding that the applicant was the instigator of the importation, at the apex of the conspiracy or the head of the scheme, it was inevitable that the applicant's sentence would be greater than those respectively imposed upon Jan Ha and Simon Le Duc. Jan Ha had originally been sentenced to twelve years with a minimum of ten years, a sentence which had been reduced on appeal to ten years with a non-parole period of eight years.[37] Simon Le Duc had been sentenced to seven years and six months' imprisonment with a non-parole period of five years. The argument was that nothing that could be said to discriminate between the offenders Jan Ha and the applicant could justify the difference in the penalties imposed in each case. It was submitted that the discrepancy was manifestly excessive and, in the circumstances, engendered a justifiable sense of grievance and gave the appearance that justice had not been done; Postiglione v. The Queen[38].

78 During the plea the judge was made aware of the sentences imposed both upon Jan Ha and Simon Le Duc, and was referred to the question of parity. In sentencing reasons, his Honour said that he had had regard to the manner in which both the co-offenders had been sentenced. His Honour, however, said, after referring to the issue of parity, that the applicant's role at the head of the scheme demanded a harsher penalty than that imposed in the case of the others.

79 Simon Le Duc had pleaded guilty to the very same offence as that upon which the applicant was convicted and sentenced. He had a limited role with respect to the importation, being required to do as he was instructed. His role and involvement were obviously much less than that of the applicant. He was to receive a comparatively small fee for his work. He pleaded guilty at an early stage and provided assistance to the prosecution authorities, and gave an undertaking to continue to co-operate with the prosecution. In consequence he received a sentencing discount under s.21E of the Crimes Act 1914 (Cth).

80 Jan Ha had also pleaded not guilty but had been convicted of the same offence as that upon which the applicant was convicted. She was not the originator of the importation, and it was found[39] that her involvement in the scheme was "triggered by" her loyalty to her brother, the applicant. The applicant, on the other hand, was always "in control" and gave directions to the others including Jan Ha and Simon Le Duc.

81 In my view, upon an examination of the sentences imposed upon Simon Le Duc, Jan Ha and the applicant, and the reasons given for the sentences imposed, the objective observer would not conclude that justice had not been done. It follows that the claim of disparity in sentencing has not been made out, and this ground also must be rejected.

Ground 1 The sentence imposed was manifestly excessive

82 The applicant had no relevant prior convictions and was therefore to be sentenced as a person of prior good character. The judge expressly stated that he regarded the applicant's one prior court appearance as having no significance for the purposes of sentence. It was argued that in light of the applicant's personal circumstances and the circumstances of the offence, a head sentence of fifteen years and three months was manifestly excessive.

83 A question arose as to whether s.16G of the Crimes Act 1914 (Cth) applied. That section, which had been repealed as from 16 January 2003[40], required the judge to take the fact that sentences in Victoria are not subject to remission or reduction into account in determining the length of the sentence and to adjust the sentence accordingly. Mr Holdenson accepted that notwithstanding the repeal of the section, this Court should assume that it applied.[41] Mr Boyce accordingly argued that the sentence was very stern, and, having regard to s.16G, the equivalent of a sentence of of the order of twenty-two years' imprisonment.

84 The judge in sentencing said he had taken into account the provisions of s.16G. In R. v. Li[42] this Court held that the discount a sentencing court was bound to apply under s.16G was not to be calculated in accordance with a strict mathematical formula of one-third of the sentence which it otherwise regarded as appropriate, but rather by the exercise of a general discretion to make an adjustment, bearing in mind the fact that remissions had previously led to a reduction in the length of sentence of the order of one-third.[43]

85 The maximum available penalty for the offence in this case was life imprisonment, and the offence was a very serious one. The amount of heroin imported was twice the commercial quantity. It was a very serious instance of the importation of a large quantity of a very dangerous drug. The judge stated that he had taken into account the co-operation the applicant had given in relation to prosecution evidence which had led to a shortening of the trial. But the applicant

was the instigator of the importation and had had an extensive involvement in the organisation of it, remaining in control at all times. It has been repeatedly said by the courts in sentencing for offences dealing with the importation of, and trafficking in heroin, that much weight is to be given to general deterrence.[44]

86 In my view the sentence did not fall outside the available range and cannot be described as manifestly excessive. Ground 1 also should be rejected.

87 The application for leave to appeal against sentence should also be dismissed.

At a glance

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Before

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Judgment (55 paragraphs)

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Legislation Cited (2)