R v Vrabcenjak [2008] VSCA 143

1 Michael Vrabcenjak was indicted on a single count that, contrary to paragraph 233B(1)(b) of the Customs Act 1901 (Cth) he imported into Australia prohibited imports to which s 233B applies, namely not less than a traffickable quantity of heroin. He stood his trial in the County Court in March 2007. The jury found him guilty, and on 4 May 2007, after a plea, he was convicted and sentenced to 6 years' imprisonment, with a minimum term of 3 years and 8 months. The judge made a declaration under s 21E of the Crimes Act 1914 (Cth) that by reason of Vrabcenjak's offer to co-operate with law enforcement agencies the non-parole period that would otherwise have been imposed had been reduced by 2 months. His Honour also declared that he had reduced the non-parole period by 2 months by reason of delay in the proceedings.

2 Vrabcenjak applies for leave to appeal against conviction. The grounds of his application are as follows:

1. The learned trial judge failed to adequately direct the jury as to the mens rea required to be proved.

2. The learned trial judge failed to adequately direct the jury as to the standard of proof.

3. The learned trial judge failed to properly or at all answer a jury question as to the difference between beyond reasonable doubt and the likelihood of an occurrence, in particular, he should have, but failed, to relate the question to the mens rea of the offence so as to make it clear that proof of guilt was proof beyond reasonable doubt.

4. The verdict is unsafe and unsatisfactory in that it was not possible for the jury, properly directed, to have rejected an hypothesis, open on the evidence, consistent with innocence, in particular that the application was "set up" to import heroin without the requisite mens rea of having it in his possession.

3 Vrabcenjak also applies for leave to amend his grounds of appeal by adding:

1. The trial miscarried by reason of the trial judge's having failed properly or at all to direct the jury on its use of the applicant's lies.
   1. The trial miscarried as a consequence of the cumulation of some or all of the errors alleged in grounds 1 to 6.[1]

4 The applicant was arrested and charged on 26 July 2003. He was bailed on 14 August 2003. He was committed for trial on 6 May 2004. He continued on bail. There was a trial in March 2005, but it was aborted. Then there was dispute as to whether the Crown should pay the applicant's costs of the aborted trial. Eventually, the Crown was ordered to do so, and it complied. So, haltingly, the matter found its way to trial again in March 2007.

5 The trial extended over 5 days. The applicant did not give evidence, and called no witnesses.

6 The jury retired on the late morning of 23 March 2007. It rendered its verdict a little after 4.30 pm that day.

7 A plea hearing was conducted on 20 April 2007 and, as I have said, the applicant was convicted and sentenced on 4 May 2007.

8 The applicant was arrested at Tullamarine Airport on the morning of 26 July 2003. In his baggage was a photograph album. In its covers were packets containing heroin. The total weight of powder was 875.3 grams. The quantity of pure heroin was 641 grams.

9 It was not in debate that the applicant had in fact imported a commercial quantity of heroin on his return from Vietnam on 26 July 2003. The only issue at trial was whether he had imported it with the relevant criminal intent. The Crown had to prove that element beyond reasonable doubt. But it was able to prove intent in either one of two ways: first, that the applicant knew that there was heroin concealed in the photo album, and intended to import it into Australia; second, that he was aware of a likelihood, in the sense of a significant or real chance, that his conduct involved the importation of heroin, and that he nonetheless persisted in that conduct.

10 The Crown case as to intent was a circumstantial one, of the strands in a cable type. It rested upon objective circumstances including certain conduct of the applicant, and upon things which he said in records of interview on 26 July 2003. The Crown's case was that the evidence called for a finding of satisfaction beyond reasonable doubt that the applicant's importation of the drugs had been accompanied by an intention of the likelihood kind.

11 Early in his charge, the learned judge instructed the jury that the Crown bore 'a heavy onus of proof'. He said that it 'must satisfy you of the guilt of the accused beyond reasonable doubt'; and that those words meant what they say. A little later he instructed the jury that the Crown must prove the various elements of the charged offence to that standard. Then he identified those elements in the particular case.

12 Concerning proof of the mental element, his Honour said this:

The central issue that it is for you to determine in this case is the fault or the mental element which you must also be satisfied beyond reasonable doubt before you can find Mr Vrabcenjak guilty of the offence with which he is charged. That element is that Mr Vrabcenjak intended to import a prohibited import, a particular narcotic substance, so you must be satisfied of that. So, in other words, to be satisfied of that fault element you would need to be satisfied beyond reasonable doubt that the accused meant to import a narcotic substance, not necessarily heroin, concealed in the photo album. If the evidence has satisfied you beyond reasonable doubt that the accused actually knew or was aware that there were narcotics, drugs in the photo album, then you could therefore be satisfied that the accused meant to import those goods. In that way, knowledge or awareness is relevant to the existence of the necessary intention.

Now the prosecution in this trial does not submit to you that there is evidence to suggest that the accused man actually new or was aware that there were narcotic drugs in the photo album. That is not the way in which the case is presented before you, because I further direct you that a belief falling short of actual knowledge on the part of the accused that there were drugs in the photo album can also sustain an inference of intention, and that, as I have said, is the basis on which the prosecution proceeds in this trial.

The issue of intention does not solely rest on actual knowledge, that is, the Crown does not have to prove that the accused actually knew that there were drugs in the photo album. If you are satisfied beyond reasonable doubt that the accused believed that the photo album contained the narcotics, that would sustain an inference of intention. So also, if you are satisfied beyond reasonable doubt that the accused was aware of the likelihood in the sense that there was a significant or real chance that his conduct involved the importation of narcotics and he nevertheless persisted with that conduct, that would be sufficient for you to infer an intention to import.

Then he repeated the last sentence of that direction, so emphasising its importance to the jury's resolution of the case.

13 His Honour then instructed the jury that the Crown relied upon circumstantial evidence to establish the necessary intent, and pointed out that a person's state of mind is frequently a matter of inference. He further instructed the jury, very clearly, that it could not find the accused man guilty except if the chain of inferential reasoning established the necessary intention beyond reasonable doubt. He gave a strong direction concerning the drawing of inferences adverse to an accused:

The chain of reasoning, including the degree of confidence you are prepared to place upon its necessary links must be so strong as to preclude any other reasonable explanation but that of guilt. Were one of the necessary facts or inferences in the chain not established beyond reasonable doubt or were there another and innocent explanation open upon the reasoning process, there would be a reasonable doubt and the process would not then lead to a conviction.

14 Applicant's counsel effectively conceded in argument that there was no flaw in the judge's charge concerning the mens rea applicable to the offence and concerning the standard of proof which the Crown was required to meet. The concession was rightly made. The directions which I have respectively described and cited at [11] - [13] show why that is so. It is the fact that in his charge the judge did not contrast the criminal and civil standards of proof, something which is often enough done. But that was not fatal to the adequacy of the direction.[2]

15 The focus then, was upon ground 3. The jury asked the judge to explain the difference between 'beyond reasonable doubt' and the 'likelihood of something happening'. After discussion with counsel, his Honour re-directed the jury as follows:

With respect to the meaning of the word[s] beyond reasonable doubt, those are plain English words which are used in the courts in all criminal trials and it's really not for me to expand on those words, but it is also fairly common for counsel when addressing juries, to contrast that very high standard of proof with the standard of proof that applies in civil cases where it is simply a matter of probability where it is if a conclusion is more probable than another, then that is sufficient to prove that fact.

In other words, if you have a pair of scales and one goes up ever so slightly in favour of one particular conclusion, then you can accept that as the finding of fact that you reach.

With respect to the likelihood of something happening, it is simply that it is likely to happen. So that if a person says there's a likelihood that it will rain tomorrow, they're saying I suggest to you, that it's a probability. It's more likely than not that it will rain tomorrow, but it is certainly a lower standard than that of beyond reasonable doubt.

So that is my direction to you, but if you have any further queries or wish any part of the charge to be repeated to you in possibly in relation to the use of these words, then please ask another question and we will endeavour to help you.

16 The jury asked no further questions in answer to his Honour's invitation.

17 Counsel for the applicant took exception to the re-direction. His complaint was simply that his Honour ought to have highlighted more than he did the difference between proof beyond reasonable doubt and proof on the balance of probabilities.

19 In the discussion which preceded the re-direction both counsel speculated about what the question might mean. Counsel for the Crown said this:

It seems that the fact of the question marries the two concepts of beyond reasonable doubt and the likelihood of something seems to raise the inferential reasoning aspect of being aware of the likelihood of the real or significant chance that the item contained narcotics. So that's to my mind what it may seem to suggest.

No doubt we'd need some clarification as to what the question is, but your Honour may perhaps consider giving them the direction which highlights the difference between the civil standard of proof on the balance of probabilities.

I think I have to take the question as it reads as far as I can ... and then give the direction that I earlier indicated should be given.

22 That was a reference to his Honour's initial reaction to the question, which was that he should reinforce by repetition what he had said concerning the concept of 'beyond reasonable doubt'; and that -

Likelihood is also a plain English word but that if someone says there's a likelihood it will rain tomorrow, it means that it is a probability and it's more likely than not that it will rain tomorrow.

23 In this Court, counsel for the applicant submitted, in effect, that the prosecutor had correctly assessed the situation, and that the re-direction was inadequate because it did not address, in a contextual way, the concepts of proof of relevant intent 'beyond reasonable doubt' and 'likelihood' that conduct involved drug importation. So, counsel submitted, although (subject to one matter) the re-direction was not erroneous, it failed to meet the jury's assumed difficulty of understanding the interrelationship between the criminal standard of proof and intention consisting of an apprehended likelihood that conduct involved the doing of a particular act..

24 In my opinion the judge was entitled to take the jury's question at face value and to draw, as best he could, a distinction between proof of something 'beyond reasonable doubt' and proof of the likelihood of 'something happening'. I further consider that the jury's question did not imply a want of understanding of the part played by the two concepts in proof of the applicant's intention. It did not suggest that the jury were conflating them. Rather, by the reference to the difference between them, the jury revealed an understanding that each had a part to play.

25 The submissions of counsel at trial as to what the question might mean show the danger there would be in speculating that it implied a want of understanding of the standard of proof and the relevant mens rea. For the prosecutor seemed to think that it might have implied such confusion, whereas counsel for the applicant began by submitting that the question seemed to be directed to something different.

26 I accept that one possible way of dealing with jury's question would have been for the learned judge to do no more than repeat his directions about the standard of proof and the relevant mens rea. But if the jury simply wanted to know the difference between the two concepts, such a direction, with its reference to 'significant or real chance' might not have been of much assistance.

27 Again, the judge might have asked the jury what it was trying to get at by its question. But I am not persuaded that the question, on its face, legitimised such an enquiry. There is, I think, a danger that a relatively straightforward question might have been turned into something which it was not by the application of refined legal analysis.

28 This should be added. On the footing that the jury's question meant just what it said, the judge's direction as to what is meant by 'likelihood' was unduly favourable to the accused. It was common ground in this Court that likelihood does not imply that something must be more probable than not.

The proviso to s 568(1), Crimes Act 1958

29 Counsel for the Crown argued that, if ground 3 was established, the proviso to s 568(1) of the Crimes Act 1958 should be applied so as to sustain the conviction. On the view of ground 3 which I have taken, that issue does not arise. I therefore say nothing to add to the ever-growing jurisprudence about the reach of the proviso. I note, for sake of completeness, that there was dispute whether the proviso could be called in aid in the event that there had been a misdirection of the kind contended for, and that there was dispute as to the strength of the Crown case. As to the second of those matters, my analysis of the evidence, see below, has led me to conclude that this was a very strong Crown case.

Ground 4. A verdict which was unsafe or unsatisfactory?

30 The question is whether this Court thinks, upon the whole of the evidence, that it was open for the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In considering that question the Court is not confined to examination of the transcript and exhibits. It must not disregard the consideration that the jury is the body entrusted with primary responsibility for determining guilt or innocence; and it must not disregard such benefit as there may have been, in the particular case, in the jury having seen and heard the witnesses. [3] The question whether a finding of guilt was open to a jury has been said to invite scrutiny whether the jury must, not might, have entertained a reasonable doubt as to guilt.[4]

31 According to the applicant's submission, the case was one of competing inferences. The Crown had argued that the circumstantial evidence required the drawing of an inference to the criminal standard that the applicant had been involved in the importation of the heroin. The applicant's case, on the other hand, was that the evidence supported an inference that he had been duped by a woman named Than Loan Tran ('Tran') into importing the heroin, it being his belief that he was simply bringing a photograph album back from Vietnam. The innocent hypothesis, counsel submitted, could not be excluded. He relied upon Knight v The Queen.[5]

32 In my opinion the ground fails. But to give life to the submission, and to explain my conclusion, it is necessary to say something more about the course of events, and the evidence led at trial.

33 The applicant made a number of formal admissions:

1. He travelled to Vietnam between 8 and 26 April 2003.

1. Tran travelled to Vietnam between 5 and 26 April 2003. She returned on the same flight as did he.

3. He travelled to Vietnam between 12 July and 26 July 2003.

1. Tran travelled to Vietnam between 18 and 26 July 2003. She returned on the same flight as did he. Their seats were in different rows.
2. His ticket for the July trip was purchased, in cash, by an unidentified Asian woman. The woman may have purchased more than one ticket on different days.

6. Tran made 5 trips to Vietnam in the period January to July 2003, including the April and July trips mentioned at 2 and 4.

34 A Customs Officer named Beddows gave evidence. He said that on 26 July he asked the applicant whether he had been to Vietnam before. The applicant answered 'no'. That answer did not fit with entries in his passport. That is why Beddows decided to refer the applicant for luggage examination.

35 Beddows was cross-examined to suggest that his account of what the applicant had said had only emerged at the committal hearing; and that he had no note of the conversation or its detail. I think that there was no reason why the jury should not have accepted the accuracy of Beddows' evidence. It provided a reason why the applicant was referred for baggage examination. The fact that the applicant's passport gave the lie to what he allegedly said does not mean that he did not say it.

36 The applicant was interviewed on two occasions by Australian Federal Police officers on 26 July. The records of interview were put in evidence. The Crown relied upon the applicant's answers in part for their alleged truth and in part for their alleged untruthfulness - in the latter case as impinging upon the applicant's credibility.

37 The first interview was mainly formal. But towards the end of it, the applicant said 'That's not mine'. The evidence of Constable Pagliaro showed that the applicant was referring to the photograph album. The Crown contended that by the remark the applicant falsely sought to distance himself from the album.

38 I turn to the second interview. The applicant's initial account of the circumstances in which he travelled to Vietnam on the two occasions, and how he came to be in possession of the photograph album was as follows:

About three or four months ago, I can't be exact. I should have the old ticket in my belongings. Group of friends went up there. I was going to be introduced to one of their sisters and on the way back I don't believe I had anything last time. This time there was a photo album dropped off about an hour before we left Hanoi.

Did you go to Vietnam the second time with the same group of friends?

On different flights but we was [sic] returned on the same flight. I dunno who they contact up there, uh, the same friends flew back with me.

Oh, yes, it was dropped off about an hour before I ---

... (indistinct) ... we left Hanoi together, went to Ho Chi Minh together, we changed flights, come back to Melbourne. I did not believe there was anything in the album. I just thought it was for my photos, I had plenty of photos.

Yes. Not all of them, a couple that aren't. They helped me pack the photos in and just said, "Oh, put this in", cause they had two bags of their own, "so I'll just put this into your bag." I had no idea there was something inside.

Did they suggest that you put your photos in this album and bring it back to Australia?

39 That account, as can be seen, involved assertions that the applicant had twice visited Vietnam with a group of friends, who on each occasion had returned with him on the same plane. The album had been dropped off at the hotel where he was staying, not long before he departed. His friends had helped him put some - not all - of his photographs into the album. They had suggested that he do this. He had not asked them why. They had put the album in his bag, because they had bags of their own.

40 Now it is convenient to refer to some objective evidence. Examination of the album showed that a number of photographs had been placed in it; whilst a search of the applicant disclosed that he had a number of loose photographs in his possession. Viewed in overall context, I consider that this gave rise to a strong inference that photographs had been placed in the album to give it a an appearance such as would not invite attention. Also viewed in overall context, the applicant's account (assuming it to have been true) that the particular course had been suggested by others, and that he had not asked why, in my opinion tended against his being an innocent dupe. Further, he claimed that the album had been placed in his bag because, implicitly, there was no room in the bags of the others. But by the time it was put in his bag it contained photographs which he had taken.

41 I return to the second record of interview. The applicant described the purpose of his July trip this way:

Um, it was holiday but I went to meet um, a friend of mind, her sister, in order to bring her to Australia if I could. I'm not divorced yet myself but I'm going to get a divorce and help her come back. I was offered money to do that.

Okay, who are the people that offered you this money?

Um, not off the top of my head. I do have their names somewhere in my papers.

42 Then, concerning the circumstances in which he came into possession of the album, the applicant gave this account:

And just before we departed Hanoi, this friend of mine had a photo album delivered to her room, it was picked up by reception at the Elegant Hotel and brought up to our room and handed to her and it was placed into my suitcase.

Okay now just going back to when the photo album was brought to the room, can you just go through the sequence of events again?

Ah yes. It was dropped off by - I didn't see the person - ah, reception was contacted ah, by my friend, the female friend. Reception called her back in the room, told her, someone's dropped off the photo album for you, she asked reception to bring it up to the room, which they did. The album was handed to her first, then she discussed with me, she said "Why don't you put all your photos in?" I said "I'll do it at home, don't worry." She said "Oh, there's so many photos, she's ordered me an album." I had no idea.

I didn't suspect it, nuh. I believed the sole purpose of the trip was to go and marry her sister.

Okay. And after she's helped you put your photographs in the album, what's happened then?

We've - we've checked out, we've left Hanoi together.

Did she put - did you put the photo album in your baggage or did she?

Yes, it's even been sprayed with ladies perfume. Um, we left Hanoi together, changed planes at Ho Chi Minh City, where she met another couple of people. Um ---

43 Now, it can be seen, the multiple persons who, on the applicant's first account, had assisted him with the photograph album had become a single person. That person had put the album in his baggage. The album had even been sprayed with ladies' perfume. As to the last-mentioned circumstance - its purpose, I should think, being to mislead sniffer dogs - the jury would sensibly have asked itself, in context, why it had apparently attracted no attention by the applicant.

44 The applicant was asked about his means. The import of his answers was that he was not in employment at the time, having been injured in a motor vehicle accident in 2002. He was not in receipt of income, but was awaiting a TAC payment. This account fitted in with his ticket having been bought by someone else; and it suggested that he had a need for money.

45 The applicant was asked about the return flight from Vietnam which he had just completed:

On the flight into Melbourne, were you travelling with anybody?

She was on the flight with me, another few people that she knew.

Okay. Can you tell us a bit more about what you know went on say on the plane, what you mentioned to us earlier? Your instructions?

Okay, so you knew that this person was overlooking more than just yourself?

No, no, it's not the question. You were aware that there were other passengers on the plane that had contact with this woman?

Although, in his answers, the applicant denied knowledge that he had prohibited goods, his admissions, in my opinion, were damning. Tran and others whom he knew had been on the flight. They had all been sitting apart. They had been told, inferentially by Tran, not to speak to each other. This in the context of a man into whose luggage Tran had placed - on his account - a photograph album, uninvited.

46 The applicant was questioned whether he had been suspicious about the gift:

Okay, so you weren't suspicious at all when she gave you the photo album?

I wasn't really, because she spent the last two weeks with me - last three weeks last trip which was very nice and everything so I didn't think it's true I was told by other people.

She's shifty and she might be doing something like that 'cause she makes a lot of trips.

His answers, I think, sat ill together. It strains credulity to accept that the applicant's state of mind was as he claimed when a person who he had been told might be involved in drug trafficking had given him, uninvited, very soon before his return, an album which had been sprayed with women's perfume; and when such person, having insisted that some of his photographs be placed in it, had put it in his baggage. That is so even without the circumstances of the flight home to which I referred at [45].

47 I turn to what the applicant said had been his intention after clearing customs and immigration in Melbourne. Against the background that he said that he was then living with his parents at Taylors Lakes, he was asked these questions and gave these answers:

What were your intentions to do once you got to Melbourne?

Don't know, I was told ... (indistinct) catch a taxi together.

I believe we were going to Footscray somewhere, that's all, that's where they run their business from.

There was no explanation why he should have met up with Tran and gone to her premises after the flight had concluded except that he had been told that they should catch a taxi together. The plain inference is that Tran gave this instruction, and that she must have done so before the journey commenced - because they had not been in contact during the flight. And yet, on his account, he had no suspicion that he might be carrying anything illegal.

48 Tran was called by the Crown, although it was made clear by the prosecutor that he had no need to rely upon her evidence in order to establish the case against the applicant.

49 Before Tran gave evidence, it was elicited from Constable Pagliaro that Tran had travelled to Vietnam on 5 occasions between January and July 2003 despite having no known means of support other than social security payments; that one of her brothers had sent quite large amounts of money to an address where she stayed in Vietnam; and that this brother was recorded as a user and trafficker of heroin in Victoria. The witness also agreed that police had formed the view that Tran was an overseer in the importation of heroin into Australia. She had been interviewed, he said, in early 2004, but the interview had not proceeded to matters of substance.

50 Tran gave evidence that the applicant had told her that he was going to Vietnam. She had then suggested to her sister, who was living there, that the applicant and the sister might meet with a view to a relationship, and eventually marriage. She had never been present when the two had met, but her sister had said that she did not much like the idea - that is, of establishing a relationship with the applicant. He had not been offered money to marry the sister; but there had been mention that something might be paid if the sister came to Australia and it didn't work out. The witness had 'bumped into' the applicant in Vietnam, but only on one trip. They had gone out together 'once or twice'. She did not know how he had got the plane ticket for the July trip. She had never travelled back from Vietnam on the same plane as the applicant; but she 'just happened to bump into' him at Melbourne Airport on one occasion - apparently the occasion on which he was arrested. The family operated a money transfer business to Vietnam (in such a way she explained the transfers of money of which Constable Pagliaro had given evidence). She had not given the applicant the album.

51 The witness was extensively cross-examined. Despite her denials, it would have been open to the jury to conclude that during 2003 Tran had engaged in heroin trafficking from Vietnam, that whilst in Vietnam in July 2003 she had seen some or all of the photographs which were inserted into the album, that she been in the applicant's hotel room shortly before he left to return to Melbourne in July 2003., and even that she had placed the album in the applicant's bag. I think also that the jury might have concluded that the applicant was a so-called 'mule' in Tran's drug trafficking activities.

52 It is one thing to say that the jury might have formed the view that Tran was a drug trafficking overseer and that the applicant was a mule in the trafficking activities. It is another thing whether it was open to the jury to conclude, to the criminal standard, that the applicant was guilty of the offence charged. In my opinion, the inference was irresistible that he had a relevant mens rea of the likelihood kind. Regardless of the jury's impression of Tran, it beggars belief that the applicant should not have had that state of mind in the circumstances discussed at [33]-[47] - to which may be added the fact, which in itself might be neutral, that the album was found at or towards the bottom of the applicant's bag. The possibility of gullibility as an explanation can diminish to vanishing point. In my view, that point was reached in this case.

53 Ambiguity in the language of proposed ground 6 was resolved by the explicit statement of counsel for the applicant that the gravamen of the ground was that the learned trial judge should have given the jury an Edwards,[6] or at least a Zoneff[7] direction in respect of his client's allegedly untruthful statement to Beddows that he had not been to Vietnam before. Counsel submitted that the untruth had been identified as a lie told out of consciousness of guilt in both the opening and closing address for the Crown. The evidence had been adduced for the sole purpose of proof of relevant intent. Intent having been the live issue, the evidence had plainly been material. A direction had been necessary and its absence had caused the trial to miscarry.[8]

54 In opening the matter, the prosecutor relevantly said this about the evidence which it was anticipated that Beddows would give:

Those of you who have had the pleasure of returning home to Australia from an overseas trip might recall that the first step in the process that you go through is a line of booths where you join a queue to present your passport and a document called an incoming passenger card to a customs officer.

Shortly after going through that process Mr Vrabcenjak was spoken to by another customs officer whose name is Colin Beddows. He will be the first witness that you will hear give evidence in this case. You will hear that on the morning of Mr Vrabcenjak's arrival Customs Officer Beddows was performing a job that's known as cold targeting. Cold targeting involves customs officers assessing whether passengers who are arriving might be of interest for further examination such as a baggage search.

Now upon speaking to Mr Vrabcenjak Customs Officer Beddows did decide that Mr Vrabcenjak should be referred for a baggage examination. I'll leave it to Customs Officer Beddows to tell you why.

55 Later in his opening, the prosecutor referred to alleged vagueness and inconsistency in the applicant's record of interview as bearing upon his credibility; and he added, in a non-specific way, that it was a telltale sign that the account had been designed to cover up the applicant's awareness of what he had done. The prosecutor said nothing there about the evidence which Beddows was to give.

56 To this point, and contrary to the submission advanced for the applicant, Beddows' anticipated evidence had not been identified as bearing upon consciousness of guilt. To the contrary, it had been identified as providing an explanation why a baggage search had been conducted.

The group I work in is called, Cold Targeting. We select passengers for further examination for baggage examination.

When you commenced your conversation, what did you say to Mr Vrabcenjak?

I don't have total recall of what I first said, but I took his passport, his immigration card, and I think that was it. I began speaking to him about where he'd been - the reason for him going overseas - that sort of thing.

In particular, did you have any particular conversation about his travel to Vietnam?

I asked him if he'd been to Vietnam before and I asked ---

As a result of having that conversation did you do anything?

Well when I examined his passport I noticed there were two sets of stamps.

That indicates that an examination of his baggage is required.

Why did you refer Mr Vrabcenjak for a baggage examination?

Because of that discrepancy of the trips noted and what he said to me that that was his first time.

Well Vietnam is a country of interest so I suppose that is that, but no, no other reason apart, from that.

58 Cross-examination largely focussed upon the (implicit) proposition that the applicant had not said what the witness attributed to him; and upon emphasising the certain fact that the witness had first mentioned the conversation when asked by defence counsel, at the committal, when he had first spoken to the applicant. The forensic purpose of the cross-examination was not clear.

59 Pausing again, the gist of Beddows' evidence, against the background of the opening, was that the alleged conversation explained why a decision had been made that the applicant's baggage should be searched. It mattered not, as a matter of logic, whether the applicant's error had been intentional or an obvious mistake made by a man whose attention was not focussed upon the question.

60 I turn to the prosecutor's final address. What he relevantly said was this:

Now from the first meaningful interaction that Mr Vrabcenjak had with a customs officer on that morning, there was a clear indication that he was aware of his precarious situation. You will recall of course, the evidence of Customs Officer Beddows. Mr Beddows was clear that the reason that he decided to refer Mr Vrabcenjak for a baggage search was because although his passport showed two recent entries to Vietnam, Mr Vrabcenjak told Customs Officer Beddows that this trip was his first time. Now you heard Mr Traczyk cross-examine Customs Officer Beddows quite extensively about that conversation.

The first thing I suggest that that cross-examination revealed, is that Mr Beddows is steadfast in his recollection that that is what Mr Vrabcenjak told him. In my submission that makes perfect sense because that event is what stood out as the basis for the baggage search. What that cross-examination also revealed is that that piece of evidence is pretty important and it's important because it provides an insight into Mr Vrabcenjak's mental state that morning when confronted by questions from a customs officer. At best - and I mean at the absolute best - you could perhaps argue that Mr Vrabcenjak has made a stupid mistake by indicating that he was returning from his first trip to Vietnam rather than his second, but ladies and gentlemen, how rattled and nervous would you have to be to make that sort of mistake? Another more logical explanation of course, is that Mr Vrabcenjak was being quite deliberate in telling Customs Officer Beddows that this was his first trip.

You might think that Mr Vrabcenjak was concerned that his two trips to Vietnam in less than three months might lead to some unwanted attention from Customs, that it was best to try and avoid.

61 The prosecutor's reference to the particular interchange did take place fairly early on his address. It did so for reasons of chronology. Mostly, his address concentrated on aspects of the records of interview, the objective circumstances, and what might be made of Tran's evidence.

62 The prosecutor concluded his submissions this way:

... the combination of all those circumstances that I've outlined for you makes it simply impossible to accept Mr Vrabcenjak's claims in his record of interview that he had no suspicions about the photo album. More than that though those circumstances point so overwhelmingly to the photo album as a façade that Mr Vrabcenjak would have been at least aware of the real or significant chance that there were drugs inside that photo album.

63 Counsel for the applicant addressed Beddows' evidence this way:

Then the Crown say what about saying to Customs Officer Beddows that he'd been to Vietnam once? You saw Mr Beddows. He gave evidence only a few days ago. Let me briefly remind you of this because I don't think the case rises or falls on it, but Beddows is a customs officer. Mr Vrabcenjak is standing in the queue. He sees Beddows. Beddows asks him for his passport and his incoming passenger card, and he's looking at the passport according to Beddows, he's looking at the passport and according to Beddows he can't remember precisely what he says to Mr Vrabcenjak because he's got no note of it, and it's not originally in his statement, but he says "Mr Vrabcenjak said to me that this was his first trip to Vietnam." What a load of nonsense really. You've got a customs officer with your passport in his hand, clearly it's got stamps on it and this is your second time around. Are you going to be silly enough to deliberately try and say to a customs officer "No, this is my first time" despite the fact that you're looking at two stamps in the passport? It's just a nonsense.

The reality is, bear in mind that Mr Beddows says he made some notes of his involvement with Mr Vrabcenjak when Mr Vrabcenjak interacted with him, there's nothing there about Mr Vrabcenjak saying this is his first visit to Vietnam, that Mr Beddows then made a formal typed statement regarding the evidence that he could give in terms of his involvement with Mr Vrabcenjak. There is nothing in the formal, typed statement about Mr Vrabcenjak saying it's his first time. The only time it seems to come out is when Mr Beddows is giving evidence that a preliminary hearing of this matter some years ago where he says in evidence "Yes, that's what I reckon happened." I think this is about a year or so after the event. I suggest to you the reality is it's just not right. Nobody would be silly enough to say that, and it's simply a misinterpretation by Beddows as to what was actually said, bearing in mind that he's relying on memory of what was said and he has no note, he has nothing in a formal typed statement prior to actually saying at some time about a year or so down the track; it's just not reliable evidence.

64 When charging the jury, the judge referred to Beddows' evidence:

The first witness called before you was Mr Beddows who is a customs officer. On 26 July he was on duty at Melbourne International Airport. He spoke to the accused there. "I asked him if he'd been to Vietnam before." "And what was his response?" "He said that was the first time."

He said that on the passenger card he circled the letter "T" and that indicates that an examination of his baggage is required.

He went on to say that he was not present when the accused man was first questioned but he later saw the album that had [been] seized and he was challenged as to whether or not the accused said that this was his first visit to Vietnam and he said, in effect, "well that's why I asked for his baggage to be searched." You have heard submissions about that issue.

65 Counsel for the applicant had not sought an Edwards direction. There was no exception to the charge.

66 There was a demonstrated reason for Beddows' evidence which had nothing to do with a lie told out of consciousness of guilt. That is, the evidence explained why Beddows had requested the applicant for a baggage search. That is how the case was opened. That was the thrust of Beddows' evidence in chief. The fact that the particular evidence had only emerged in cross examination at the committal was elicited by cross examination at trial. The circumstances in which the evidence originally came to light do not suggest that it was a key piece of Crown evidence, relied upon for the discrete purpose which the applicant asserted in this Court was the case.

67 The closest that the prosecutor came to doing what counsel for the applicant submitted in this Court that he had done was when he referred to the applicant's first interaction with Beddows being 'a clear indication that he was aware of his precarious position'; and when he submitted that the applicant's statement to Beddows 'provided an insight into [his] mental state that morning', that 'a more logical explanation' of the untruth - by contrast with it being a stupid mistake - was that the applicant had been 'quite deliberate in telling ... Beddows that this was his first trip', and that 'he was concerned that his two trips to Vietnam ... might lead to some unwanted attention from Customs ...'.

68 Bearing in mind the need to focus upon the substance of the Crown's submissions - it not being decisive that the word 'lie' was not used - I nonetheless consider that in this case the prosecutor did not invite the jury to reason along the lines that the applicant knew that the circumstance that he had made two trips to Vietnam within a short period of time would give rise to suspicion; that the jury should infer that he knew that such a suspicion would or might lead to a search of his baggage; that a search would, as a matter of likelihood, reveal the presence of heroin; and that therefore he deliberately lied to avoid a search of his baggage.

69 A question then arises whether there was nonetheless a real danger that the jury might reason impermissibly along consciousness of guilt lines.[9] If so, it should have been instructed about the permissible and impermissible use of lies in its deliberations.

70 I do not consider that there was such a risk. The focus of Beddows' evidence was that the alleged conversation explained why he had ordered a baggage search. Evidently it was open to the jury to conclude that Beddows' evidence was truthful and correct; and that it did explain why the applicant's baggage was searched. But anticipated acceptance of that evidence in one setting does not imply a real risk that the jury would attach a second and different significance to it.

71 I next consider it probable that a forensic choice was made by counsel for the applicant at trial not to seek a direction which would focus attention upon this (or any other) alleged untruth told by his client. The thrust of counsel's address was that Tran had been the drug trafficker and his client the innocent dupe. In that context counsel sought to explain away apparent inconsistencies in his client's records of interview. For the judge to have directed the jury that, according to the Crown case, a particular statement by the applicant had been a deliberate lie told out of consciousness of guilt, and for his Honour then to have given either a full Edwards direction, or a Zoneff direction, would have highlighted the many inconsistencies and apparent untruths in the applicant's record of interview, this detracting from his defence.[10]

72 Although the conduct of counsel at trial cannot be decisive if there was an evident defect in the charge,[11] the failure of counsel to seek a direction or to take exception suggests that the risk, identified on an appeal, of the jury misusing particular evidence was more apparent than real.[12] In my view, particularly having regard to the gist of Beddows' evidence, that can be said of counsel's failure to seek a direction or to take an exception in this case.

73 I agree also with the submission of counsel for the Crown that the applicant has failed to show that there is a reasonable possibility that failure to give an Edwards or a Zoneff direction may have affected the verdict.[13] The evidence that the particular untruth was a deliberate lie was itself not strong, as counsel for the applicant forcefully submitted in his final address. Moreover, the strength of the circumstantial case was so great that failure to give an Edwards - or, more likely, a Zoneff - direction was in my view neither here nor there.

74 In all, I think it would have been better if the judge had been asked to give some form of direction as to reasoning from lies to guilt, or if his Honour had decided of his own motion to so direct the jury. But I do not accept the submission that the judge's failure to give some such direction makes out proposed ground 6.

75 This proposed ground could not be made out. The errors contended for by grounds 1 to 4 and proposed ground 6 in my opinion have not been established.

76 I would grant the applicant leave to amend his grounds of appeal only to add proposed ground 6. I would refuse the application for leave to appeal against conviction.

77 I have had the benefit of reading in draft the reasons of Ashley JA. I agree with his Honour's proposed disposition for the reasons he gives.

78 I have had the substantial advantage of reading in draft the reasons of Ashley JA. I agree with the outcome proposed by His Honour that the appeal must be dismissed.

[1] There was a proposed ground 5. But it was not pursued.

[2] R v JMA [2007] VSCA 105, [19] - [22] (Buchanan JA).

[3] Jones v The Queen (1997) 191 CLR 439, 450 - 451 (Gaudron, McHugh and Gummow JJ).

[4] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-597 [113] (Hayne J).

[5] [1992] HCA 56; (1992) 175 CLR 495.

[6] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

[7] Zoneff v The Queen (2000) 200 CLR 234.

[8] Counsel cited R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, 487 (Winneke P).

[9] Zoneff v The Queen (2000) 200 CLR 234, 244 [16] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 12 [34] (Gleeson CJ, Hayne J).

[10] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 19 [63] - [64] (McHugh and Gummow JJ); R v Cardamone [2007] VSCA 77, [58]

[11] R v Nguyen (2001) 118 A Crime R 479, R v Chang [2003] VSCA 149; (2003) 7 VR 236.

[12] R v Gallagher [1998] 2 VR 671, 685 (Callaway JA), 702 (Ashley AJA); R v Osland [1998] 2 VR 636, 651-652 (Winneke P, Hayne and Charles JJA); R v Kumar [2006] VSCA 182 [43] (Eames JA); R v Brdarovski [2006] VSCA 231, [13] (Nettle JA); R v Cardamone [2007] VSCA 77, [52], [54] - [61] (NettleJA).

[13] Dhanhoa v The Queen (2003) 217 CLR, 17-18, [59]-[61], 18-19 [63]-[64] (McHugh and Gummow JA); R v Cardamone [2007] VSCA 77 [56]-[61], [63] (Nettle JA); R v Berry & Wenitong [2007] VSCA 202; [2007] 17 VR 153, [105] (Redlich JA).