R v Theophanous [2003] VSCA 78

[2003] VSCA 78

Court of Appeal (Vic)|2003-06-20|Before: WINNEKE, A.C.J., VINCENT and EAMES, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2003-06-20

Before

WINNEKE, A.C.J., VINCENT and EAMES, JJ.A.

Source

Original judgment source is linked above.

Judgment (405 paragraphs)

[1]

The applicant, Andrew Theophanous (whom we will call "the applicant") was charged on indictment with six offences alleging breaches of the Crimes Act 1914 (Cth.). After a trial, lasting some two months in the County Court, the applicant was convicted on four of those counts (counts 2, 3, 5 and 6). He was acquitted of count 1 and the jury disagreed in respect of count 4. Each of the counts of which the applicant was convicted, charged him with the commission of offences of fraudulent and dishonest behaviour in 1998 and 1999 at a time when he was a member of the Commonwealth Parliament. Counts 2 and 3 alleged, in essence, that he defrauded the Commonwealth by deliberately misleading responsible officers of the Department of Immigration and Multi-Cultural Affairs ("DIMA") with an intent to cause those officers to act contrary to their public duty. Counts 5 and 6 alleged offences of bribery contrary to s.73A(1) of the Crimes Act. Although the essence of the offences charged in counts 2 and 3 was the intentional misleading of the public officers to induce them to act contrary to their duty, it did not involve, as a central plank in the proof of the offences, that money had changed hands. Nevertheless, the Crown allegation that the applicant had received corrupt payments in respect of his conduct bore upon the question of his intent. The judge sentenced the applicant to a total effective sentence of six years imprisonment and fixed a minimum term of three-and-a-half years before he would become eligible for parole. The applicant has sought leave to appeal to this Court against both the convictions recorded and the sentences imposed.

[28]

(a) The conversation between Yau and Cheung on 10 September 1998 in which Yau referred to Chen completing the visa application form and faxing it to Yau who would then take it to the applicant "for approval". Yau told Cheung that there would be no need for him to return to China.

(b) Thereafter, before the end of September 1998, Cheung, with the assistance of his controller, partially completed the application form and faxed it to Chen in China. Chen filled in additional information. The applicant drafted the terms of a letter for Yau to write to the Immigration authorities, indicating that he (Yau) would support Chen whilst she was in Australia, and that he would supply Chen's expenses.

(c) On 24 September 1998 there was a conversation on the telephone between Yau and the applicant, in which the applicant impressed upon Yau that he did not want Cheung or the other people whom he assisted to know about his involvement; nor did he want to see those people.

(d) Subsequently Yau signed a letter in support of Chen's application in similar terms to that drafted by Theophanous but added a sentence which indicated that Chen would have a business interest in Australia as the agent of a company which was named. The documents were ultimately put together by Cheung and the NCA and forwarded to Chen for lodgment at the Australian Embassy in Shanghai.

(e) There were other conversations in the month of September 1998 between Yau and Cheung relating to the finalization of the letter of support for Chen's application and the forwarding of those documents to her.

(f) In early October there was a conversation between the applicant and Yau in which they discussed the visit by Chen to the Embassy to lodge the application; in the course of the conversation the applicant stressed it was important that Chen not mention anything about Cheung.

(g) On 7 October 1998 Yau advised the applicant that DIMA had refused to accept Chen's application. This apparently was untrue as Chen had not attended the DIMA offices in Shanghai.

(h) On 8 October 1998 Yau and the applicant had a telephone conversation about the lodgment procedures for Chen's application. The applicant advised Yau that he had spoken to Todd Frew at the Australian Embassy in Beijing and that DIMA would process the application. Frew was the Chief Migration Officer in Beijing with the responsibility for China. The applicant had indeed had a discussion of some 20 minutes duration with Frew in which he had raised general issues about the administration of immigration policies in China, and in the course of which he raised the "Chen matter".

(i) On 9 October the applicant rang Yau and told him that he had arranged for Chen to attend the Embassy on 12 October to see a Senior Migration Officer, one David Wilkinson.

(j) On 12 October 1998 Chen attended the interview with Wilkinson and submitted her application for a visa. The application was refused because it included a letter from her "employer" stating that he agreed to give her leave of absence, and a further letter from a company, with which Yau was apparently associated, signed by Yau, and which referred to Chen's gaining knowledge of a "fish farming venture" in Australia with a view to acting as Yau's agent in China. Wilkinson had explained to Chen that the application that she had completed was for a tourism visa and that because of her stated intention to undertake business activities she should apply for a "temporary business entry (short stay) visa". He gave her the relevant forms.

(k) Chen faxed the form received from Wilkinson to Cheung. That form was completed by Cheung with the assistance of members of the NCA and faxed back to Chen. Chen then returned to the Embassy and submitted this new application form and the documents supporting it, which included the letter from Yau in both English and Chinese, and a letter from her brother-in-law. Wilkinson further interviewed Chen about this application through an interpreter. Wilkinson then contacted her brother-in-law whom she had nominated as her employer in China. The brother-in-law said he didn't know anything about it although he did state that she worked in a company which specialised in "handbags".

(l) On 13 October 1998 Cheung told Yau about Wilkinson's phone call to Chen's brother-in-law and complained to Yau that everything "was messed up" and "you must get Andrew to rectify the situation". Yau then rang the applicant and told him what had happened, and the applicant advised Yau what he should say if he was contacted about the application : namely, that Yau had invited Chen for a holiday. The applicant had no knowledge of what had occurred and was apparently still under the impression that Chen had applied for a visitor's visa.

(m) On 20 October 1998 the applicant telephoned Wilkinson who explained to the applicant the circumstances of Chen's approaches. He also informed the applicant that Chen had lodged a further application in respect of which he would be making a decision shortly.

(n) On 24 October 1998 Wilkinson sent a letter to Chen informing her that her application had been unsuccessful because she had failed to meet the prescribed criteria in Part 456 of the Migration Regulations, to the effect that she was to satisfy the Minister that her expressed intention "only to stay in Australia temporarily for business purposes" was genuine. The letter stated that Wilkinson did not find her claims credible and that, in any event, the amount of income she received for her job would be insufficient inducement to make her wish to return to China.

(o) On 25 October 1998 Yau received a telephone call from the applicant who informed Yau that he had received a fax stating that Chen's application had been rejected. The applicant stated that this was not "totally unexpected" given that the officers were making enquiries. The applicant told Yau that it was unusual for a DIMA officer to check by ringing Chen's employer and indicated that he would have to intervene. The applicant also stated that if they could not help Cheung with Chen's application then they would have to reimburse Cheung by giving him his money back.

(p) A copy of the letter of rejection of Chen's visa application was faxed to the applicant by Yau on 3 November 1998. The applicant then rang Yau and discussed the matter. The applicant was upset that Cheung had acted without his knowledge in making "a business visa application". Specifically the applicant said:

[44]

(y) The visa application form as completed was sent to Chen on 4 December 1998 by courier; and the application was supported by the personal letter of assurance from the applicant on official letterhead, and the letter of Yau.

(z) The relevant Migration Regulations which operated at the time and were applicable to "short-term tourist visas" listed a number of criteria to be satisfied before an application could be granted. These criteria included the need for "the applicant [to satisfy] the Minister that the expressed intention of the applicant only to visit Australia is genuine". This was important in respect of applicants who were subject to "risk factors" (as were females from mainland China aged 25 years or older). In such circumstances, it was necessary for the applicant to satisfy DIMA that "there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry".

(aa) On 11 December 1998 the applicant made a phone call to the Australian Consulate in Shanghai in which he made an appointment for Chen to attend the Consulate on 14 December 1998. Cheung transmitted $4,800 (approx) to Chen, which he had been given by the NCA. Chen attended the Consulate on 14 December where she produced her forms. She was interviewed on 16 December 1998 by Wilkinson who asked her why "her primary intention in her first application was for business reasons and why she had now changed to asking for a visitor's visa".

(bb) On 16 December 1998 the applicant spoke to the Minister for Immigration (the Rt. Hon. Philip Ruddock) by telephone about the matter and another matter relating to a friend of Yau. The applicant complained about Wilkinson's advising Chen to apply for a business visa and then rejecting her. The applicant asserted to the Minister that Chen had no underlying purpose of remaining in Australia.

(cc) On 17 December 1998 the applicant rang Wilkinson in relation to the application and gave a further assurance that "he was satisfied" the application was "a genuine one". Notwithstanding such assurance, Wilkinson, on the same day, made a decision to reject the application.

(dd) On 19 December 1998 the applicant met with Cheung and Yau following the wedding of Choi's daughter. They discussed the rejection of Chen's application. Inter alia, the applicant said:

[46]

(ee) The applicant and Yau, during the course of this meeting, had a disagreement over how much money the applicant had received to assist Cheung with his problem. When Cheung referred to having paid $22,000, the applicant denied having received that sort of money from Yau. Indeed he said "I didn't get anything like that" and then asked Yau if he had got that money. Yau indicated that he had the money. The applicant then told Cheung that he would return to Yau what Yau had given him. The applicant said, in evidence, he was referring to "expenses" of $1,000 given to Yau and $120 to him.

(ff) On 21 December 1998 the applicant rang Yau and told him, inter alia, that he (Yau) "would have to do something about what Cheung had given [Yau]".

(gg) On 22 December 1998 the applicant met Cheung. They discussed the money which had been taken into the applicant's office on 8 September 1998. Cheung told the applicant about the return of some of the money by Yau. The applicant stated that if Cheung's case was unsuccessful then he would get all of his money back, and further said that if Cheung had not told him about the money, he wouldn't have got anything back. The applicant told Cheung that he did not have to pay any more money for Chen's case, only some "expenses". Cheung then handed $4,000 to the applicant. The applicant, in evidence, said that he had taken this $4,000 from Cheung because he assumed, from what he had been told, that it belonged to Yau who had been "forced out of it". Yau had later told him that he wanted the applicant to "hold onto it". The applicant told Cheung there were only two ways in which they could still bring Chen to Australia. The first was for him (that is the applicant) to speak to the Minister about it and get him to give a personal assurance in relation to the application. If that was successful they could pursue the idea of having Cheung meet her and a relationship developing. The second way was for Cheung to travel to Vanuatu and for she and Cheung to marry there. The applicant stated that he didn't like the second option and suggested the following:

[158]

"an exaggeration", and it seems to us that his explanation that it was the type of exaggeration commonly used to emphasise a point, and was not a deliberate misleading of the House, was likely to have made very little impact upon his credibility in the minds of reasonable persons. There was very much more in the evidence going to the character and credibility of the applicant than this marginalised piece of evidence. The fact that the evidence was not thereafter referred to, either in the speeches of counsel or in the charge of the judge, serves to indicate the lack of impact which it had and was likely to have. In the context of a case where the jury had before them so many secretly recorded telephone conversations revealing the true character and credit of the applicant, we are quite unable to accept that the impugned evidence caused any miscarriage in the trial. The submission made on behalf of the applicant that it was "devastating" seems to us to be a plain overstatement and at odds with the fact that the jury acquitted on one count and disagreed on another. Those verdicts seem to us to be a clear indication that the jury paid heed to the judge's "separate consideration warnings and instructions". The impugned cross-examination raised matters related to the conspiracy alleged in count 2 and would, in our view, have had no impact upon the offences alleged in counts 3, 5 and 6. Those counts alleged offences which were quite discrete from each other and from the offence alleged in count 2. Furthermore, they were offences in respect of which the recorded conversations provided overwhelming evidence. It is contended by the applicant that he had an explanation for the events which were the subject of counts 5 and 6; namely that he was engaging in a deliberate course of conduct to determine who, through Cheung, was "setting him up". Counsel for the applicant contends that the impugned questioning in breach of the Privileges Act made it an effective certainty that the jury would not believe that explanation. In our view, the impugned evidence would have had little or no impact upon that issue because, in the light of the established

[168]

"An accused person is entitled to have identified with precision the transaction upon which the Crown relies; he is entitled to be apprised not only of the overt acts alleged but also the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489, 495, 501-502. A charge of conspiracy does not differ in this respect from any other charge. The accused is unable properly to plead to a charge unless he knows what is the precise case which is the basis for the charge preferred against him: Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280-281. He can hardly plead to a charge of conspiracy unless he knows precisely with whom it is going to be alleged that he conspired and the scope of the conspiracy alleged. It has long been considered a cardinal requirement of the criminal law that an accused should be given proper particulars, and the courts possess an inherent authority to require the Crown to furnish particulars of the charge. The authorities are collected in Johnson v Miller at 497 and in Ex parte Graham; Re Dowling at 280. The denial of the defendant's right to particulars in Moss v Brown [1979] 1 NSWLR 114 at 128-130 is limited to the position of a defendant in committal proceedings, where the magistrate in any event has a discretion whether particulars should be ordered: Ex parte Donald; Re McMurray (1969) 89 WN (Pt 1) (NSW) 462 at 470, 472-473. Because of the special nature of the inquiry which is being conducted in those proceedings, the defendant has no right to such particulars: Ex parte Coffey; Re Evans [1971] 1 NSWLR 434 at 451, 460.) In a conspiracy case, each accused is entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged. Even where particulars are not sought, it is nevertheless incumbent upon the Crown Prosecutor to give those particulars in the course of his opening address -- at the latest. He is not entitled simply to open the overt acts of which particulars which have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial."

[193]

"(a) he believed that the purpose of Chen's proposed visit to Australia was to work out whether there was a basis for a relationship with Cheung; (b) he knew that a possible outcome was that she would marry Cheung during her visit and then apply for a longer-term visa; (c) he believed that Chen would be unable to obtain a prospective spouse visa, because it would be impossible to satisfy DIMA that her relationship with Cheung was sincere, given that she had never met him; (d) he knew that part of the duty of an officer of DIMA was to ascertain the truth, so that the system was not cheated; (e) he knew that, under the regulations, an applicant for a short-term visitor's visa in Chen's circumstances was required to satisfy the Minister that the expressed intention of the applicant only to visit Australia was genuine; (f) he knew that an applicant for a short-term visitor's visa in Chen's circumstances was also required to satisfy the Minister that there was 'very little likelihood' that the applicant for the visa would remain in Australia after the expiry of the period during which the person was authorized to enter Australia; (g) he knew that officers of DIMA were required to apply those criteria in deciding whether to grant a visa, including that Chen fell into a 'high risk' category; (h) he knew that there was not 'a snowball's chance in hell' that officers of DIMA would have granted the visa sought had they known the true facts; (i) he believed that the only way to obtain the visa was to present a misleading picture to officers of DIMA, 'in one definition of the term mislead', that is, presenting an incomplete picture; (j) he agreed with Yau, on or before 8 September 1998, to mislead DIMA officers in relation to Chen's case, specifically (concerning the application for a visitor's visa) by not telling them of the possibility of a relationship; (k) in a conversation on 8 September 1998, the applicant gave Yau the impression that Chen would ultimately be making an application for permanent residency (although the applicant claimed in his evidence that that was not in his mind) and (l) he knew that the information presented in the visa applications was incomplete."

[199]

"During the period covered by the indictment, that is 4 July 1998 to 22 September 1999, the accused was a member of the House of Representatives, that is a Federal Member of Parliament for the Victorian seat of Calwell. The accused during that period held himself out to be an expert in the field of immigration and as a person willing to use his position of expertise and influence to make representations on behalf of persons with problems related to immigration matters, principally in relation to visas, either to get people into or to allow people to remain in Australia. It seems that he does have a background in migration matters. I think he was the Chairman of a Standing Committee related to migration matters in the Federal Parliament at some stage. He was it seems particularly well connected with the Australian ethnic Chinese community and, indeed, all of the immigration clients concerned with the charges on this indictment are of Chinese background, either from the People's Republic of China or Hong Kong, or both. Indeed, the accused, it seems, touted himself as something of a champion of prospective Chinese visa applicants, so much is evident from telephone calls relevant to Count 2, and that is the conspiracy to defraud count, which were made to the Minister for Immigration and Multi-cultural Affairs, Mr Ruddock - you will hear that conversation in particular - and to a senior DIMA officer, and during that conversation to Mr Ruddock and, indeed, a similar conversation to the other DIMA officer, he complained with what, the prosecution say, was feigned indignation at the lack of respect the responsible officers of DIMA had shown for his own verbal and written assurances that the applicant, a Miss Chen, intended a genuine short-term social and tourist visit to Australia and that she intended to return to China whence she came at the expiry of the two or three month period for which the visa was to relate. You will hear in that conversation with Mr Ruddock, and in similar conversations where he accused the DIMA officers of racial prejudice, improper behaviour, unfair treatment, all the time knowing full well that the assurances he had given and about which he complained, that the DIMA officers had given him scant respect, were based on a lie. The accused knew full well that the applicant, Miss Chen, intended, and her future husband who was in Australia intended, that she should be brought to Australia on the pretext of a short-term visitor's visa so that he could marry her whilst she was here, pretending he met her whilst she was here and falling in love with her all of a sudden, and that she would then be in a position to apply for permanent residence and would not go back to China. The approach, the prosecution says, to Mr Ruddock was clearly intended to exert further improper pressure on DIMA officers who were, in fact, doing their job properly and fairly to that particular applicant. The lie was told to Mr Ruddock, repeated to Mr Ruddock in that telephone call, in the knowledge that the accused had received corrupt payment in respect of that matter, and you will hear that the matter was pursued right through to February with a further visit to Mr Ruddock where he repeated that assurance."[39] "As far as count 2 is concerned, that is the most complicated because that is the conspiracy charge, and the allegation is that between the 4 July of 1998 and 22 February 1999 the accused at Melbourne did conspire with Peter Yau, Frank Cheung, who is the convicted criminal that I referred you to who was acting as a police informer, and Chen who was the prospective visitor's visa applicant in the case and who was then resident in China, to commit an offence against the law of the Commonwealth, to defraud the Commonwealth as related to the relevant section of the Crimes Act. I have already tried to explain what fraud means in these circumstances, the accused causing public officers to act contrary to their duty, and in this case by making false representations to them that Chen would comply with the terms of a visitor's visa, that was to be the subject of the conspiracy. In other words, the pretext to get her here so she could get married off and stay here."[40]

[220]

"COUNSEL: ... my understanding of how it was put was that it was also to be a part of the agreement that it was done in the belief that the applicant wouldn't return pursuant to the terms of any visa that was being obtained, so it had that second limb, if you like, Your Honour. This wasn't - - - HIS HONOUR: But isn't that part of - yes, it is. Part of the information is the `I believe', the statement of his actual belief of part of the misleading factual basis upon which the Crown relies. Misleading factual basis is that, isn't it? That that person believed that they would return in compliance with the visa. COUNSEL: No. It's being put that at the time at which the agreement is being made that the parties to the agreement are of the belief that the applicant won't return pursuant to the terms. HIS HONOUR: I see, you are right. Yes. I see what you mean."[50]

...

"PROSECUTOR: What's behind that is that presenting a picture, false picture that she at the time of making the application had the intention of complying with the terms of the visa; in other words, leaving within the three month period. Clearly in our respectful submission was knowledge of facts which if presented to the DIMA officer would have gone the other way and suggested that she is not likely to leave. HIS HONOUR: I don't think you need develop it. Give me those particulars again, because if they have been provided, as I think they have, I think I'm entitled in the course of my charge to tell them what the Crown suggests is the misleading fact. What is it? PROSECUTOR: Well, it's falsely representing that the said Chen was likely to leave Australia in compliance with the conditions of such a visa. HIS HONOUR: Of the visitor's visa? PROSECUTOR: Yes. Clearly that means leaving within a three month period and I think I said that. HIS HONOUR: If they were the particulars given, when I say that, the misleading is the Crown puts it as confined to that false representation, that is the false representation, and those words speak for themselves and the jury can apply the direction as to the law in accordance with that fact."[51]

...

"PROSECUTOR: Well, Your Honour, just to say this, that really the whole essence of the case has to be - a case of this nature, has to be the effect of the representations on the minds of the persons who were to be influenced - - - HIS HONOUR: That's right. PROSECUTOR: - - - and that means what's presented to them, not some private thought in the mind of the person that, ultimately everything will be all right because she'd go back, but what is intended by the conspiracies at the time they agreed to employ the dishonest means. What are the dishonest means, the presentation of false material, upon which the decision is to be made. The effect of that, of course, was designed to induce the belief that she was likely to go back, ..."[52]

[243]

"... the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest 'the real evil' at which the discretion to exclude unlawfully obtained evidence is directed, namely, 'deliberate or reckless disregard of the law by those whose duty it is to enforce it'. In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence."[65]

[245]

"Whilst it would appear that at least the warrants under the Australian Federal Police Act 1979 were improperly obtained (as the Crown concedes for present purposes), I am of the view that any irregularities were not the result of any intentional disregard of the law and certainly not in contumelious disregard of the law[66]. The evidence of those witnesses (which evidence I accept) that it was and had been for some time the practice of the NCA for listening device warrant applications to be made with the assistance of a lawyer. This was regarded as an important precaution, especially in this matter.

...

The affidavit in support of each application was drafted by a lawyer (who gave evidence before me) and the Director of Public Prosecutions was (unusually) involved in many of the applications for the TI warrants. The evidence was (and I accept) that the DPP was not, however, involved so far as advice is concerned in relation to any of the s.12G warrants in respect of Cheung, the registered informer. The witnesses gave evidence that the actions of the various officers was following practice they believed to be normal and which they believed was lawful. While I am of the view that all concerned acted honestly and in the belief they were acting lawfully, I nevertheless conclude that there must, when the practice first began, have been a somewhat enthusiastic and optimistic interpretation of s.12G in particular. Those in charge might perhaps be worthy of criticism for allowing the practice of seeking 'particular person' warrants nominating police informers rather than genuine suspects, but that does not make the practice dishonest or in contumelious disregard of the law. I find the mental attitude could not amount to that and I accept the evidence to that effect. Such conduct might be in contumelious disregard of the law, but, having heard the evidence, I am satisfied that in this case it was not. Also relevant to the exercise of my discretion is the fact that the listening device warrants authorized recordings which either could have been or were in fact lawfully recorded by other means.[67] That being so, I accept the Crown submission that it would be artificial in those circumstances to exclude such recordings. The exercise of my discretion is, of course, an exercise in the balancing of the importance of important principles in a particular case. As a matter of public policy, it is of great importance and public interest to have wrongdoers brought to justice, particularly if the crime is serious. Also as a matter of important public policy is the consideration that curial approval should not be given to unlawful and unacceptable conduct on the part of those whose duty it is to enforce the law. Given my findings on the state of mind of the persons involved, it is clear that my discretion should be, and is, exercised in favour of the admission of the evidence."[68]