BACKGROUND
6 There was no dispute at the trial concerning the fact of importation of a commercial quantity of heroin, and no objection on appeal to that part of the summing up where the trial judge said to the jury that they might conclude beyond reasonable doubt that there was such an importation, and that the real issue was whether the appellant was knowingly concerned in it.
7 The importation shown by the evidence was of about 3.4 kilograms of heroin brought on a flight from Bangkok to Sydney, arriving on the morning of 27 November 1997, by one Nima Tsering Ghale. Ghale successfully cleared customs, and took accommodation at Hyde Park Plaza Hotel in College Street, Sydney.
8 On 28 November 1997, one Keshun Karki arrived in Sydney on a flight from Bangkok, and he booked into the Highfield Private Hotel at Kings Cross.
9 Police monitored a proposed handover of heroin, and rented a room at Camperdown Travelodge as the intended site of this handover. Inspector Raymond Lam of the National Crime Authority played an undercover role as the person representing the persons who were to receive the heroin. On 29 November 1997 he was sent by Karki to the Hyde Park Plaza, where a portion of the heroin was handed over to him. Shortly afterwards, Ghale was arrested at the Hyde Park Plaza Hotel with the balance of the heroin, and Karki was arrested at Camperdown Travelodge. Some hours later, the appellant was arrested at a restaurant in Marrickville.
10 The principal evidence implicating the appellant was given by Feng Wang, a registered informant with the National Crime Authority. He gave evidence to the following effect.
11 Wang came from China to Australia in 1988, aged 18 years. He came on a student visa to study English at a college in Sydney. After over-staying his visa, he ultimately was granted a four year temporary visa following the 1989 Tiannamen Square incident. He came to know the appellant Victor Chan as a result of attending a gambling house at Kings Cross during 1991 and 1992. He understood the appellant to be associated with a group of Chinese persons of Singaporean or Malaysian background known as the Singma. He knew the appellant as "Dai Lo" (Big Brother) and Wang himself was referred to by the appellant as "Xiao Dei (Little Brother). During this time, he also came to know a man referred to as Ah John, whom he saw in the company of the appellant.
12 In 1992, Wang was arrested by Police in Victoria and charged with being knowingly concerned in the importation of heroin. He pleaded guilty and offered to give assistance including assistance by way of evidence against the persons who had recruited him. He was sentenced in the County Court in Victoria to six years with a four year minimum term, it being indicated that but for his offer to give evidence against the principals, the applicable sentence would have been twelve years with eight years non-parole. Wang gave evidence in committal proceedings against both principals, following which one of them pleaded guilty. He was subsequently called to give evidence in the trial of the other principal.
13 During his imprisonment in Victoria, Wang applied for refugee status, and his application was rejected. He appealed to the Administrative Appeals Tribunal, and lost his appeal in 1997. He then made an application to the Federal Court, and that application had not been decided at the time of the trial. He also made a request for intervention to the Minister for Immigration, which also had not been determined at the time of the trial.
14 Also while in prison, Wang saw an advertisement in a Melbourne Chinese newspaper whereby the National Crime Authority invited assistance and information regarding serious crime or drugs from members of the Chinese community. Wang wrote to the National Crime Authority offering assistance, and he was interviewed by Inspector Lam. Following his release from custody in Victoria, the balance of his parole was transferred to New South Wales, and in March 1997 he became a registered informant with the National Crime Authority.
15 Shortly after Wang's release from prison, he was contacted by the appellant and asked to get in touch with him on his return to Sydney. Upon his return to Sydney, Wang attended a dinner with Victor Chan and a number of other persons. According to Wang, he was provided with $1,000.00 by the appellant at that dinner, and thereafter began an increasingly frequent association between Wang (then aged 27) and the appellant (then aged 45).
16 As a registered informant for the National Crime Authority, Wang was provided with a controller or minder, namely Inspector Lam, with whom he could converse in either Cantonese or English. He was provided with living expenses, a mobile phone and a toll-free phone facility, and he regularly reported his meetings and involvement with the appellant.
17 Over a period of months, the appellant began to entrust Wang with small tasks including the remission of funds through a bank to an overseas account, paying in cash of rental amounts which were due, and the collection of money from one person and conveying it to another. On one occasion, the appellant directed Wang to collect a small sample (referred to as a "photo") of what was allegedly heroin and pass it to another person. On another occasion, Wang and his flatmate Peter Feng were asked by the appellant to do "a job". Each was requested to get "a boy" so as to further distance themselves from the physical transaction, and arrangements were put in place for an alleged transfer of heroin from one Chinese group to another person identified as "Arthur".
18 There was evidence given that during many of these activities, Wang was oversighted by the police to whom he was reporting; and some of the meetings between Wang and the appellant were the subject of tape recording and video observation. In the account which I will now give concerning the events the subject of the charge against the appellant, I will be referring to tape recorded evidence as well as Wang's own evidence.
19 In October, the appellant informed Wang that he had called Ah John in Thailand about a supply of gear (heroin), and that he had not decided if he would take it. On 1 November 1997, the appellant advised Wang to find "a boy" and stand by for a job. In mid-November 1997, the appellant advised Wang to get ready to receive something in the next few days.
20 On 15 November 1997, Wang advised police that he had been given a new mobile telephone by the appellant and told to purchase a new SIM card for the purpose of the job. Wang did so and advised Chan of his new telephone number. He subsequently received a telephone call on that new number from Ah John who was in Thailand. Wang subsequently received many phone calls from Ah John, some of which were recorded by hand-held tape recorder at the time they were received.
21 At 11pm on 27 November 1997 (the day when Ghale arrived in Sydney carrying the heroin), Ah John telephoned Wang and said "My friend has already arrived, you tell Victor to give me a call tomorrow morning and to organise". At 2am on 28 November 1997, Wang telephoned the appellant and advised "Ah John just called", and the appellant replied "I know I have already called him … Stand by tomorrow to pick up the things after 12 o'clock". At 1.50pm on that day, the appellant telephoned Wang and said "Stand by to pick things up at about 4 or 5 o'clock, others do not like to do it in day time it is better to do it at night". Referring to his "boy", Wang asked "If to pick up how much will you pay for the one who did the job?" and the appellant said "Give him to $4,000 to $5,000 a unit, it doesn't matter, have to please others to do a job. Hide if first after getting it then wait for my instruction, give it to others". Shortly after 5pm, Wang received a call from Ah John which was not taped, during which he was told "The horse is not good for gambling today we will gamble tomorrow". At 5.25pm, Wang advised the appellant that the job would not take place until the following day.
22 On 29 November 1997 at 12.45am, the appellant telephoned Wang and said "Check in a hotel room they have to get in and get a scale, how much to check in a room, does it need several hundred dollars, would it be enough for $400 for two days. I have only got $300 … the one who do the job is he ready yet you don't check in the room you tell him to go, after fixing it up contact me again at 11 o'clock tomorrow". Following that communication, Wang met with the appellant and was provided with money. He rang the police in the early hours of that morning, and Inspector Lam and Detective McEwan travelled from their homes to the city and met with Wang. Arrangements were then made to rent a hotel room at the Camperdown Travelodge. Video and electronic surveillance was set up in the room, and it was decided that Inspector Lam would play the role of Wang's "boy". During the morning of 29 November 1997, Wang received a number of telephone calls from Ah John and he also spoke with the appellant. Together with Inspector Lam and Detective McEwan, he purchased a set of scales.
23 At about 10.46am on 29 November 1997, Wang met the appellant face to face. Wang was fitted with a recording device and the conversation was recorded. At the meeting, Wang told the appellant that he had bought the scales and rented a hotel room, and advised the appellant of the daily rate. The appellant told him "in a moment you get the phone number and address to me I give him a call". He also said "Go there wait for him … I check with outside to see what time will arrive". The appellant said "How about the scale?" and was told by the appellant "Oh put it inside". The appellant also said "When [he] gets it we'll simply show him how much on it and look clearly". The appellant asked Wang for the phone number of the Travelodge and the room number. Wang asked the appellant "How much should I take?" The appellant said "Take two or three persons three units three units, hurry up can get more after it is done, two or three units doing like this".
24 Later in the morning of 29 November, Ah John telephoned Wang, and Wang said "Did you talk to Victor?" and Ah John said "Couldn't reach him on the phone". Telephone records reveal numerous international calls being redirected to the appellant's message bank. Ah John said that the person who would come to the room would be called "Peter" and that Wang's "boy" should call himself "Jimmy". Karki arrived at the Camperdown Travelodge calling himself "Peter", and met with Inspector Lam, calling himself "Jimmy", in the designated room. Karki directed Inspector Lam to go to the Hyde Park Plaza, where in due course he was directed to a room where Ghale was waiting with the heroin.
25 Following that changed plan, the appellant telephoned Wang and was advised by him of the change of plan. Wang said "Haven't eaten yet … He mixed things up, he wanted me to go to another place for the meeting". During that phone call, the appellant identified to Wang which of the two mobile phones he was then using that Wang should use to contact him. Evidence established that the appellant used a number of mobile phone numbers, none of which were registered in his name.
26 Ah John continued to phone Wang on a number of occasions to see how things were going. In a call at 5.18pm, Ah John said to Wang "Other side called our side get some money first how about $10,000 … you tell him to get a few more hours and see how it goes". Wang said "Then I have to ask Victor later". Ah John said "Oh Victor, I have spoken to Victor, did Victor talk to you I talked to him in the morning". At that time, Ghale had already been arrested and Karki was about to be arrested.
27 The appellant gave evidence at the trial and sought to explain away many of the objective circumstances relied on by the Crown in the circumstantial case against him. Aspects of evidence such as the appellant's direction to Wang to collect three units, the discussion about scales, contact between his telephones and Ah John, attempted contact between Ah John and himself, and Ah John's conversations in which he indicated he had been speaking with "Victor" were either denied (the appellant said for example that the name spoken by Ah John on the tape was "Peter" not "Victor"), or explained as being about other matters, for example that the $300 was to rent a room for a wild sex party.