Regina v. CHAN [2002] NSWCCA 217

7. The sentencing judge failed to take into account the fact that the applicant went into custody on 11 August 2000.

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.

WARNING ABOUT WANG'S EVIDENCE (GROUNDS 1, 1A AND 2) 28 In his summing up, the trial judge said this about the witness Wang: Members of the jury that is the evidence which you have to consider. The Crown has put submissions to you, I do not propose to go over those in detail. The Crown concedes, of course, that Wang is critical to the Crown's case. He does not suggest that - to use his phrase - that Wang is a paragon of virtue. He agrees that he was involved in serious criminal activity in Victoria involving the importation of heroin, for which he served a sentence. He was there, on Wang's account of course, as the person who transported things down to Melbourne, took charge of them in Melbourne.

He recognises also that Wang's refugee status certainly was, and is, undecided. That is a matter, no doubt, which and certainly Mr Strathdee has urged you to take into account as to the credibility and the weight that you would attach to his evidence.

He said that you would regard Wang as a man of, what he described as, raw intelligence. I think he implied by that, intelligent, but also cunning. He emphasised that he was involved in this drug importation, very large drug importation to Victoria. He says he's an opportunistic person, his reasons for dealing with the NCA were basically to assist him to be able to stay in this country. He has pointed out that he has certainly told lies when he was first arrested in Victoria as to what he was involved in, suggesting that what he thought was in the boxes was gold.

He said he simply denied buying a mobile phone from Marco Polo. He suggested to you that you would accept the evidence of that witness, that in fact he did buy a phone from him, although it apparently was not the one which is before you as an exhibit, although you will remember that Mr Strathdee put to him quite firmly that that was the one held bought from Marco Polo. He said you would also recognise him as a liar by reason of his reference to the Shark Fin Restaurant dinner in which Wang said that it was the accused that paid for that dinner.

He also points out that Wang, apart from overstaying his visa, being in breach of the Commonwealth laws of immigration, was also involved on a number of occasions in the brothel business, and he said that is a matter which you would also look at, that you would regard his evidence as unreliable for those various reasons. He said that Wang had a motive to impress, in particular, Mr Lam at the NCA, when he first saw him, and that he had a continued motive to put a gloss on matters, in effect, which were favourable to himself and for that reason he is unreliable. 29 The trial judge did not give a direction that the evidence of Wang should be scrutinised with great care and must be accepted beyond reasonable doubt before the jury could find the appellant guilty; and did not give a warning of the kind referred to in s.165 of the Evidence Act, which is as follows: 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

Submissions 30 Mr. Patch for the appellant submitted that the Crown's case depended upon Wang's evidence being accepted beyond reasonable doubt; so a direction pointing this out and stressing the need to scrutinise Wang's evidence with great care, was required: R v. Murray (1987) 11 NSWLR 12. 31 In any event, Mr. Patch submitted, a s.165 direction was required. Wang was a crucial witness, and his evidence was potentially unreliable for the following reasons. Wang had applied for a refugee visa, but that application had been refused. He had appealed to the Administrative Appeals Tribunal, but that appeal had been refused. He had appealed to the Federal Court but that case has not yet been determined. A direct request to the Minister for Immigration to intervene was yet to be determined. Clearly, the Minister's decision would be greatly influenced by advice from the National Crime Authority. Wang was very frightened of being deported to China, and it was likely that he would be deported to China, unless he performed to the satisfaction of the National Crime Authority. This in turn was affected by the degree to which he provided information and evidence to the National Crime Authority leading to successful prosecutions. He only contacted the National Crime Authority and became a registered informant after his application for permanent residency had been refused. For all those reasons, he had powerful reasons, based on self-interest, to tell untruths and to distort the truth. Furthermore, he had been involved with illegal prostitution. He was a person of bad character, having been convicted of being knowingly involved in the importation of a large amount of heroin (see R v. Lonie and Groom [1999] NSWCCA 319). He received a reduced sentence in return for providing information and giving evidence; and was therefore aware that providing assistance to authorities could be to his personal advantage. 32 Mr. Patch submitted that a s.165 warning had been requested, and accordingly such a warning was required. Although Wang did not fall within paragraph (d) or (e) of s.165, it was evidence of a kind that may be unreliable. A warning was necessary to avoid a perceptible risk of a miscarriage of justice: R v Stewart (2001) 52 NSWLR 301, R v. Taranto [1999] NSWCCA 396; R v. Johnston (1998) 45 NSWLR 362; Longman v. The Queen (1989) 168 CLR 79, Crofts v. The Queen (1996) 186 CLR 427. It was insufficient for the trial judge to refer to submissions on behalf of the appellant. A warning with the authority of the judge was necessary: Domican v. The Queen (1991) 173 CLR 555, Clarke (1993) 71 ACrimR 58, BRS v. The Queen (1997) 191 CLR 275 at 331.

Decision 33 In my opinion, this was not a case calling for a Murray direction. Wang's evidence was important, but there was substantial circumstantial evidence in addition to Wang's evidence pointing to the guilt of the appellant. 34 As regards s.165, Mr. Patch conceded that Wang's evidence did not fall within any of the particular paragraphs. The question was whether it was otherwise "evidence of a kind that may be unreliable". 35 To a greater or lesser extent, all evidence may be unreliable, and it would be absurd to suggest that a s.165 direction is required in relation to all evidence which may, to some extent or other, be unreliable. In my opinion, what is required is to consider whether the evidence in question is evidence "of a kind" which the experience of the courts has shown may be more unreliable than the general run of evidence: cf R v. Clark [2001] NSWCCA 494, R v. Stewart (2001) 52 NSWLR 301 at 305. 36 Two particular "kinds" of evidence have been suggested as applicable to Wang's evidence. 37 First, the evidence of persons of significant "bad character". It is to be noted that s.165 does not specifically refer to evidence by a person with prior convictions or evidence by a person of bad character as being evidence of a kind which may be unreliable. This I think is to some extent because those categories could cover a very broad and variable range of cases, including many cases where a warning would be quite inappropriate. If it was attempted to narrow the range by use of some such word as "serious" in relation convictions, or "substantial" in relation to bad character, this would introduce a very subjective element into the identification of the "kind". Furthermore, I do not think this is evidence of a kind where the courts have any particular experience not equally available to the community generally. 38 The other category suggested by the appellant is the category of persons with a personal interest to give evidence in a particular way, in particular, persons with a motive to ingratiate themselves with prosecution authorities such as the National Crime Authority. Again, no such category is expressly referred to, and again such a category would cover an enormous range of persons, in relation to many of whom a s.165 direction would be quite inappropriate and potentially misleading. Where, as in this case, the person in question is under close supervision of the relevant authorities, that person has a very strong motive not to be caught out in telling anything other than the truth, because that would be a devastating blow to his value to the NCA and to his chances of favourable treatment. The case is quite unlike that of an accomplice who has undertaken to give evidence against alleged co-offenders, who not only has a motive to exculpate himself or herself and inculpate others, and the knowledge required for effective invention, but also in some cases a liability to be re-sentenced if the evidence is not up to proof. 39 Taking all these matters into account, I am not satisfied that Wang's evidence was "evidence of a kind that may be unreliable" within s.165. If, contrary to that view, it was such evidence, then the trial judge was in error at least in not giving reasons why a s.165 direction was not given. However, there were substantial reasons why, even if Wang's evidence was of such a "kind", a s.165 direction would have been inappropriate. Simply to say to the jury that Wang had a motive to give evidence in such a way as to ingratiate himself with the National Crime Authority would have been quite misleading. In order to prevent such a warning being misleading, it would have been necessary to qualify it at least by reference to the close supervision of Wang's activities by the National Crime Authority, and to the detrimental effect of any detected falsity in his evidence on his relationship with the National Crime Authority. In my opinion, a decision to give no warning of the kind referred to in s.165 would be a reasonable decision, and I am satisfied that the absence of any such direction did not deprive the appellant of a reasonable possibility of acquittal.

RELATIONSHIP AND TENDENCY EVIDENCE (GROUNDS 3-6) 40 As noted earlier, there was evidence given by Wang of previous dealings with the appellant, including dealings involving samples of heroin. There was some corroboration of some of this evidence provided through the surveillance of Wang's activities by the National Crime Authority. In his summing up, the trial judge said these things: There has been in this case a considerable body of evidence which has been described as relationship evidence. That is evidence of events which occurred before the critical events that you have to consider. The critical events relating to the actual importation. The Crown has led evidence of earlier events involving the accused and Wang. The Crown suggests to establish what was the relationship between them. The Crown says this body of evidence establishes that Wang was a trusted offsider of the accused; among other instances that he was entrusted with large sums of cash money to carry out the accused's directions and on occasions to deal in amounts of drugs, that is in this case heroin, for the accused. The purpose of this evidence is to place in context the conduct of Wang in his dealings with the accused. To deal with a possible suggestion on behalf of the accused that the Crown's case would be unlikely as a one-off situation. To the extent that evidence was given by Wang of the accused's alleged involvement in other drug dealings, that is for example the Bondi incident, the sample of drugs Wang said he obtained in the cinema in Chinatown at the accused's direction. This type of evidence suggesting other criminal activity by the accused must only be used to place in context the full relationship between Wang and the accused in regard to the charge which you are considering. It is important on the Crown's submission that you do not simply look in an isolated way at the events involving the actual importation. But you look at what was the relationship between Wang and the accused. And I emphasise members of the jury it is only to establish what that relationship was that this evidence is relevant and it must only be used in that way.

The Crown says this body of evidence demonstrates that Wang was regarded by the accused as a trusted and important offsider and one who could on behalf of the accused deal with various important drug dealings which were to take place in the future. 41 These grounds of appeal raise questions under ss.95, 97, 101 and 137 of the Evidence Act, which are as follows: 95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

137. In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Submissions 42 Mr. Patch submitted that, although evidence of previous dealings involving heroin was purportedly led as relationship evidence, it did in fact amount to tendency evidence, suggesting that the appellant had a tendency to deal in heroin: R v. AH (1997) 42 NSWLR 702. No notice had been given under s.97, and no consent to waive such notice had been given by the appellant (s.190), and there was no application by the Crown to dispense with notice. Accordingly, the evidence was not properly admitted: R v. AN (2000) 117 ACrimR 176. 43 Furthermore, the probative value of the evidence did not substantially outweigh any prejudicial effect it may have (s.101) (R v. Lock (1997) 91 ACrimR 356, Pfennig v. The Queen (1995) 182 CLR 461, cf Harriman v. The Queen (1989) 167 CLR 590. Even if s.101 did not apply, because the evidence was not tendency evidence, s.137 still applied and should have excluded the evidence: R v. Lissoff [1999] NSWCCA 364. 44 Mr. Patch submitted that the trial judge applied the wrong test. He said "circumstantial evidence which discloses other criminal activity is to be admitted only where the probative force of the evidence clearly transcends its merely prejudicial effect", and went on "That, of course, is the substance of s.135 of the Evidence Act". That was an error, not merely in misidentifying the most relevant section, but also in failing to take account of the fact that s.137 does not refer to "prejudicial effect" but to the "danger of unfair prejudice". 45 Mr. Patch submitted that, even if the evidence was admissible, there were errors in the directions given to the jury concerning this evidence. It was wrong for the judge to say that the evidence was to rebut a possible suggestion, when no such suggestion had been made, as it had in Harriman. Furthermore, it was necessary to give a strong direction to the jury that they must not reason that, because the appellant had been involved in previous transactions with drugs, he had a tendency to engage in drug-related conduct and/or was likely to have done so in this case: Gipp v. The Queen (1998) 194 CLR 106, BRS v. The Queen (1997) 191 CLR 275, R v. MM (2000) 112 ACrimR 519, R v. Beserick (1993) 30 NSWLR 510, R v. Fraser NSWCCA 10/8/98, R v. AN (2000) 117 ACrimR 176. 46 Mr. Sutherland SC for the Crown submitted that the crucial question, as identified by Ms. Fullerton SC for the appellant in proceedings prior to the trial, was whether Wang was acting on his own behalf or at the instigation of the appellant. The nature of the relationship between Wang and the appellant was of crucial relevance to this question. The Crown case was that it was a relationship where the appellant was the "boss" and Wang was his "boy", being given increasing trust, leading up to events the subject of the charge, including the entrusting to Wang of roles concerning the handling of drugs. The evidence was also relevant concerning the interpretation of words used in the taped telephone calls, such as "photo" for a sample of heroin. The events concerning the handling of drugs prior to the events the subject of the charge were under surveillance, including video surveillance, making them highly probative of the nature of the relationship: cf Harriman.

Decision 47 In my opinion, the evidence in question was relevant otherwise than "to prove that [the appellant] had a tendency to act in a particular way" (s.97). It showed a relationship of a "boss" and a "boy" doing errands for the boss. To present the relationship as limited to entirely lawful matters would have distorted its nature. The fact that, in two instances, samples of heroin were involved was relevant to assist in understanding the nature of the relationship, and also in understanding what was happening in the video tapes of certain incidents. The material was relevant to language used in taped conversations, and also relevant to understand the conversations themselves, which were at times cryptic and allusive. 48 The material was plainly not admissible to prove a tendency to act in a particular way, if only because the notice requirements of s.97 were not satisfied. Furthermore, the trial judge did not address the requirements of s.101. However, since the evidence was admissible on another basis, the circumstance that it could have been misused did not make it inadmissible. 49 However, it was necessary to address its probative value, as compared with the risk of unfair prejudice, as required by s.137, and to a lesser extent, s.135. The finding of the trial judge was that "the probative force of the evidence clearly transcends its prejudicial effect". That finding did not reflect the precise words of s.137, and in fact the trial judge then referred to s.135. However, in my opinion there should not be too much significance given to minor variations in language as between ss.101, 137 and 135. In particular, the circumstance that s.137 refers to "the danger of unfair prejudice" rather than "the prejudicial effect" of the evidence is not, in my view, a matter of significance. Essentially, what is to be compared in the case of all three sections, that is s.101, s.137 and s.135, is "probative value" and "prejudicial effect". Where there is not a certainty of prejudicial effect, but only a danger of prejudicial effect, or a danger that there might be a prejudicial effect, then the weight attributed to prejudicial effect will be less. Further, prejudicial effect will generally be unfair, if it outweighs probative value. So I do not think the comparisons to be made in the three sections are comparisons between substantially different things in the different sections. Rather it is the result of the comparison and its legal effect which is different. For s.101, evidence affected by this section is not admissible unless its probative value "substantially outweighs" its prejudicial effect. In criminal cases, s.137 prohibits the admission of evidence if its probative value is "outweighed" by the prejudicial effect, expressed there as the danger of unfair prejudice. For s.135, there is a discretion to reject evidence if its probative value is "substantially outweighed" by its prejudicial effect, there expressed as the danger that the evidence might be unfairly prejudicial. In the present case, while the trial judge's finding would not have been enough to satisfy the s.101 requirement, it is in my opinion clearly sufficient to satisfy the s.137 test, and to exclude a discretion to reject it under s.135. 50 Turning to the directions given, in my opinion, where s.95 applies to evidence admitted for one purpose, a jury should normally be told it must not be used for the prohibited purposed. One might therefore have expected in this case that there would have been an explicit direction to the effect that the jury should not reason that, because the appellant had been involved in transactions concerning samples of heroin, therefore he had a tendency to deal in heroin and/or it was probable he was involved in this importation of heroin. However, whether such a direction should be given in a particular case is a matter of judgment, and I am not satisfied that it was a material error disadvantageous to the appellant not to have done so in this case. In any event, no point was taken at the trial on this, so rule 4 leave would be required. I will consider this matter further when I come to consider ground 11 of the appeal.

ELEMENTS OF OFFENCE (GROUNDS 7-10) 51 Under s.233B(1)(d) of the Customs Act, an offence is committed by "any person who aids, abets, counsels or procures, or is in any way knowingly concerned in, the importation or bringing into Australia of any prohibited imports". The trial judge gave these directions to the jury concerning the elements of the offence: What is meant by knowingly concerned is it requires an answer to this question. Did the accused have something to do with, did he have a part in, was he implicated or involved knowingly in that importation. When I say knowingly he must have knowledge of the illegal activity which involved in this case the importation of these prohibited imports and he must himself do something to facilitate the enterprise. Mere knowledge of the enterprise is not enough, it is not sufficient for him to have known that there was this importation but he must himself have done something to facilitate the enterprise.

The Crown's case here is that the accused was the person who organised the importation which occurred on 27 November. That the physical handing over was to be coordinated by Wang acting on the accused's behalf. That Wang himself was instructed by the accused to use a boy to use that phrase which has been used a number of times during the trial to receive the drugs from the representative of the persons sending the drugs to Australia. 52 Later, there was the following exchange in the presence of the jury: CROWN PROSECUTOR: Your Honour, said, I think, that it is the Crown's case that the accused organised the importation. With respect it is the Crown's case that the accused organised--

HIS HONOUR: --the reception, yes, I am sorry. If I said, importation, that of course is incorrect. The Crown's case is, that he organised the reception of the importation.

Submissions 53 Mr. Patch submitted that at most, the evidence showed only that the appellant in October expected that there would be an importation of heroin, that initially he had not decided whether he would purchase it, that at some time he decided to purchase it (or some of it), and that he made arrangements to purchase it (or some of it) when it had arrived in Australia. There was no evidence that he knew when or by whom it was to be imported. The fact that the appellant may have agreed to purchase heroin after others, not known to him, brought it into the country, does not mean that he was knowingly concerned in its importation: see Trudgeon (1988) 39 ACrimR 252, R v. Tannous (1987) 10 NSWLR 303. In so far as the New South Wales Court of Criminal Appeal suggested to the contrary (to the effect that an importation was an ongoing venture, continuing after goods had been brought into Australia) in Lam (1990) 46 ACrimR 402, Courtney-Smith (No.2) (1990) 48 ACrimR 49 and Leff 86 (1996) ACrimR 212, those decisions are wrong, and contrary to High Court and Privy Council decisions to the effect that an importation is complete once goods have been brought into Australia: Lyons v. Smart (1908) 6 CLR 143, Wilson v. Chambers & Co. Pty. Limited (1925) 38 CLR 131, Election Importing Co. Pty. Limited v. Courtice (1949) 80 CLR 657, R v. Bull (1974) 131 CLR 203, Algoma Central Railway Co. v. The King [1903] AC 478, McGurk Construction & Rigging Co. Limited v. Comptroller General of Customs (1987) 73 ALR 381. 54 Mr. Patch submitted that, even if Lam were correct, there was no evidence capable of supporting conviction. In Lam, the appellant had facilitated the removal of capsules from the intestines of the importers, and it was held that this was a means of enabling the chosen method of importation to achieve the purpose of making heroin available in Australia. Here, the appellant had merely agreed to purchase heroin if and when it was imported. 55 Alternatively, Mr. Patch submitted that the conviction was unsafe, because of the inadequacy of the evidence to support it. Alternatively again, the directions were erroneous. It was pointed out by the Crown that the original direction, to the effect that the Crown case was that the appellant arranged the importation, was erroneous; and the correction was misleading, suggesting that the appellant had a role in completing the importation. There was no direction as to how organising the reception of the heroin could amount to being knowingly concerned in the importation; and there was no explanation of the meaning of "importation". 56 Mr. Sutherland for the Crown submitted that it was sufficient that the appellant had made arrangements with those importing the heroin that he be the recipient of the imported material: R v. Kelly (1975) 24 FLR 441, R v. Shin Nan Yong (1975) 7 ALR 271.

Decision 57 In my opinion, there was evidence to support the conclusion that, prior to the heroin leaving Thailand, the appellant had arranged with Ah John, who was involved in organising the movement of the heroin from Thailand to Australia, that he would take and purchase heroin that Ah John would cause to be brought to Australia. In my opinion, whether or not importation ends as soon as goods have arrived in Australia, the making of that arrangement would be sufficient for the appellant to be knowingly concerned in the importation. That is, a commitment in advance of importation made to the person arranging the importation of heroin to receive or purchase the imported heroin is, in my opinion, plainly being knowingly concerned in the importation. Accordingly, grounds 7 and 8 must fail. 58 As regards grounds 9 and 10, concerning alleged defects in the directions, I accept that it was an error to say that the Crown case was that the appellant had organised the importation, and I accept that it would not be sufficient in itself that the appellant organised the reception. There must be a further element that he did something which actually facilitated the importation itself. That was in fact put to the jury, although the directions did give rise to some possibility of confusion because of the other matters to which I have referred. 59 However, if Wang's evidence was accepted in substance, the inference was inevitable that the appellant had arranged with Ah John, prior to the importation, that he would receive and purchase heroin when it was brought to Australia. The crucial question was whether Wang was accepted, and that was the issue on which the case was fought. 60 In all the circumstances, I am not satisfied there was a material misdirection, unfavourable to the appellant, on this point.

MISCARRIAGE (GROUND 11) 61 Mr. Patch submitted that there was a miscarriage of justice in the trial because of substantial failures by the appellant's Counsel, in particular failures to seek directions when there could be no tactical advantage in doing so; and this meant inter alia that rule 4 leave should be granted where necessary in relation to the other grounds. 62 In my opinion, substantially for the reasons already given, there was no such failure, except possibly in relation to the relationship evidence to which I have referred earlier. I am not satisfied that there were not tactical considerations operating here. The seeking of an express direction that the jury should not use this material to suggest a tendency to act in a particular way, or to suggest that the appellant acted in a particular way in relation to the events the subject to the charge, could have been disadvantageous, where the substantial defence was, as it had to be, an attack on Wang. Although the evidence admitted as relationship evidence had some corroboration from surveillance material, just as the evidence in relation to the events the subject of the charge had some corroboration from surveillance material, including taped conversations, the knowing involvement in prior transactions concerning heroin depended entirely on Wang's evidence, far more so than in the case of the events the subject to the charge. It could have been a significant tactical disadvantage to concede that the jury might accept Wang's evidence on these matters, while still being unsure about his evidence concerning the events the subject of the charge. In my opinion, rule 4 leave should not be granted to rely on the grounds concerning directions about the relationship evidence.

SENTENCE APPEAL 63 Section 16G of the Crimes Act (Cth) is as follows: 16G. If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. 64 The trial judge, in his remarks on sentence, said the following: I am satisfied beyond reasonable doubt that the prisoner was the principal who organised the importation. He was careful to distance himself from the physical activities involved. Wang was entrusted to make contacts with Ah John, the organiser in Thailand, for the transport of the heroin to Australia. The prisoner sought to further insulate himself from involvement by instructing Wang to use another operative, "a boy" to use his phrase, to receive the drugs at a city hotel in Sydney.

The Crown's case was, as I have said, that the prisoner was the organiser of the importation.

I am satisfied, as I have already said, beyond reasonable doubt that the prisoner was instigator (sic) of the importation, consistent with Wang's evidence which is referred to in the Crown's submissions at page 173 of the transcript. The fact that the smaller amount was handed over and that no money changed hands does no more than suggest that Wang was not privy to all the arrangements or that the suppliers themselves were not prepared to make these details known to the importers at that time.

He went on to say "I bear in mind that there are no remissions in this State and that matter is taken into account in accordance with s.16G of the Act". He made no mention that the appellant had no prior criminal history.

Submissions 65 Mr. Patch submitted that there was error and denial of natural justice in so far as the trial judge sentenced the appellant as "the principal who organised the importation". 66 Mr. Patch submitted that it was not enough for the trial judge that he took s.16G into account: he must in fact do so and adjust the sentence accordingly: El Karhani (1990) 21 NSWLR 370, Shore (1992) 66 ACrimR 37. It could be inferred that he did not do this, because that would have meant a starting point of thirty years imprisonment, which was plainly excessive. 67 Mr. Patch submitted that, although the absence of prior criminal history may have less weight in drug cases such as the present (Leroy [1984] 2 NSWLR 441), it still must be taken into account: Ryan v. The Queen (2001) 179 ALR 193. 68 Furthermore, he submitted, the sentence was manifestly too severe. The amount of drug involved was in the low range of a commercial quantity: R v Wong and Leung (1999) 48 NSWLR 340. Furthermore, the non-parole period was manifestly excessive. The normal range was 60-66% (Bernier (1998) 102 ACrimR 44), and 75% was the extreme, reserved for the worst cases: R v. Drazkiewicz NSWCCA 23/11/93. 69 Finally, Mr. Patch submitted that the sentence should have commenced on 11 August, when the appellant was taken into custody; so at least that adjustment should be made.

Decision 70 I accept that the trial judge's statement that the appellant was "the principal who organised the importation", if read literally and out of context, was erroneous. However, it was plainly open for the trial judge to find that the appellant was the principal at the Australian end of the transaction pursuant to which the drug was imported, and in my opinion that was what the trial judge meant by that assertion. 71 The trial judge's statement that he took s.16G into account was in my opinion sufficient to indicate that he did make appropriate adjustment, at least unless there was some indication to the contrary. A starting point of thirty years imprisonment is not in my view such an indication. Having regard to the position of the appellant as the principal at the Australian end of the transaction pursuant to which the drug was imported, and as a person who sought to distance himself as far as possible from physical contact with the drugs, and having regard to the importance of general deterrence in such circumstances, such a starting point would not be inappropriate. Neither such starting point, nor the absence of express reference to a lack of prior convictions, leads me to the view that the lack of prior convictions was not taken into account. I do not think that the sentence was manifestly excessive. In so far as it may be relevant, Wong and Leung must now be read in the light of Wong v. The Queen (2001) 185 ALR 233. 72 In the circumstances of this case, namely that of a principal in a substantial drug importation, with no significant subjective considerations in his favour (apart from lack of prior criminal history), I do not think the selection of 75% for the non-parole period is indicative of error. 73 The Crown concedes an error in relation to the starting point of the sentence, but submits that it could have been corrected by the District Court under the slip rule. In my opinion, where there is no other error in relation to the sentence, this particular error can be corrected by this Court, without this Court needing to reconsider the sentence generally. If I were wrong in that view, I would refuse leave, and send the matter back to the District Court to adjust the minor error.

CONCLUSION 74 Accordingly, for the reasons I have given, I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, sentence and non-parole period to commence from 11 August 2000, appeal against sentence otherwise dismissed. 75 LEVINE J: I have read in draft the judgments of Hodgson JA and Smart AJ. I agree with Hodgson JA, for the reasons his Honour states, that the conviction appeal be dismissed. As to the application for leave to appeal against sentence, unlike Smart AJ, I do not consider the repetition of the words in the remarks on sentence relating to the role of the applicant to reflect an error in substance. I agree with Hodgson JA ( at [70]) as to context and thus with the orders he proposes as to the disposition of the application. 76 SMART AJ: The facts, circumstances and competing contentions of the parties are set out in the judgment of Hodgson JA.

Warning About Wang's evidence (Grounds 1, 1A and 2) 77 I agree with what Hodgson JA has written. The Crown Prosecutor in his closing speech made it clear that the Crown had never suggested that Wang was a paragon of virtue. The Crown detailed at length his faults his contraventions of the law and his efforts to gain the support of the authorities including that he broke the conditions of his student visa and became an illegal immigrant (or a prohibited non citizen), his lies to the police when first arrested for a drug offence, his subsequent admissions, his plea of guilty to a serious drug offence, his 50 per cent discount for assisting the authorities, his sentence of 6 years with a non-parole period of 4 years, his further assistance to the authorities and his early release from gaol, his recruitment by the authorities as an informer and his desire to stay in Australia, the position as to his attempts to stay in Australia and how precarious that was. 78 The Crown Prosecutor invited the jury to examine Wang's evidence closely. The Crown Prosecutor also dwelt at length on the explanations for Wang's conduct. The Crown Prosecutor said: ... in the opening when I implored you and invited you before you had seen him to bear these things in mind, to test and weigh his evidence, certainly didn't want to be accused of having presented [Wang] in some glossy light. 79 It is apparent from the final address of both counsel that the conduct, character and reliability of Wang was canvassed in much detail. In the end the Crown invited the jury to take the view that Wang had taken positive steps to redeem himself and that his evidence could be accepted, especially in view of the supporting evidence and the close police supervision. The appellant submitted that in view of Wang's unsavoury past and his need of future official NCA assistance to be allowed to stay in Australia, no reliance should be placed on his evidence. This was a spirited trial in which Wang and the appellant gave extensive evidence and were cross-examined at length and the issue as to Wang's reliability and credibility was fully ventilated. That was obvious to the jury and needed no further direction. 80 Any warning would have been otiose. I do not accept the proposition that, where the Crown accepts that a witness has had a discreditable past and evidence is led to that effect that he has turned his back on that past, a warning is required under s.165 as to his evidence.

Relationship and Tendency Evidence (Grounds 3-6) Elements of Offence (Grounds 7-10) Miscarriage (Ground 11) 81 I agree with what Hodgson JA has written on each of these matters.

Sentence Appeal 82 The judge was correctly impressed with the gravity of the offence involving 2.4 kilograms of pure heroin with a street value of about $4.85 million. Its wholesale value would be much less. 83 At p.2 of his remarks upon sentence the judge said that he was satisfied beyond reasonable doubt that the appellant was the principal who organised the importation. That is the same mistake as the judge made in the summing-up where he said "The Crown case here is that the accused was the person who organised the importation which occurred on 27 November." The judge, on the application of the Crown Prosecutor, corrected that error in his summing-up by saying, "If I said importation that of course is incorrect. The Crown's case is that he organised the reception of the importation." In those circumstances I would not expect the error to be repeated twice in the remarks upon sentence. A little later in his remarks the judge said "I am satisfied beyond reasonable doubt that the prisoner was the instigator of the importation. ..." 84 Based on the language used by the judge, it appears that he has sentenced the appellant on a basis not advanced by the Crown and not supported by the evidence. Error having occurred it is now necessary for the Court to reconsider the sentence imposed and whether any lesser sentence is warranted in law. 85 The evidence establishes that Ah John was the person in Thailand who organised the importation of he heroin into Australia and that the appellant was the person in Australia who organised the reception of the importation into Australia. The judge correctly found that the appellant was careful to distance himself from the physical activities involved. Wang was entrusted to make contacts with Ah John, the organiser in Thailand, for the transport of the heroin to Australia. The prisoner sought to further insulate himself from involvement by instructing Wang to use another operative, 'a boy' to use his phrase, to receive the drugs at a city hotel in Sydney. For this purpose Wang employed Raymond Lam for this activity.

And later said: ... the prisoner was a man of strong personality who used others to carry out his bidding. Without any apparent source of legitimate income he led a lavish lifestyle which included a substantial gambling activities. 86 The judge was correctly satisfied on the evidence that the subject importation was not an isolated activity. The judge declined to draw any inference favourable to the appellant from the fact that a smaller amount of the heroin was handed over at the hotel and the fact that no money changed hands at the hotel. 87 As to the appellant's subjective features, he was born on 15 September 1950, in China, and raised by his parents in Singapore. He claimed that he completed his schooling in Hong Kong and gained the equivalent of a Higher School Certificate. He is married with four children who, as at October 2000, were aged between 23 years and 11 years. His eldest son lives in Sydney and his younger children reside in Perth with their mother. His wife told the Probation and Parole officer that he was a good husband and a good father. 88 He reported to the officer that he had always worked, usually in his own business or business partnership. He claimed that at the time of the offence he had a business partnership in a market garden in Perth exporting vegetables to Asia, a partnership in a construction company in Kuala Lumpur as well as a business in Sydney exporting Australian wine to China. He admitted to enjoying gambling and frequenting casinos in Australia and overseas. 89 The appellant denied the offence, appeared disillusioned by the Court decision and obsessed with proving his innocence. The officer wrote: ... Mr Chan's life has been centred around his business interests and while he expresses that his family in Perth are important to him and supportive of him it is the writer's opinion that business and gambling are his main pursuits. 90 The appellant complained that the judge had failed to take into account that he had no previous convictions. That fact appears from the pre-sentence report to which the judge has had regard. 91 The appellant complained that the judge had not made the adjustment required by s.16G of the Commonwealth Crimes Act 1914. The judge said: I bear in mind that there are no remissions in this State and that matter is taken into account in accordance with s.16G of the Act. 92 While many judges indicate a starting point and expose the deduction being made, normally about one third, there is no obligation to do so. Although not expressly stated by the judge, it is implicit in what the judge said that he was adjusting the sentence as required by s.16G. 93 The evidence revealed an offence of great gravity. The conclusion that the appellant was a principal in Australia for the reception of the importation is irresistible. He endeavoured to have others face the risk of being caught and gaoled, albeit that he was the mastermind. A starting point of less than 30 years would be erroneous. Applying s.16G of the Act, the sentence would become one of 20 years. Accepting the gravity of the offence and the applicant's heavy involvement in it, that the quantity of heroin was substantial (over 2 kilograms of heroin) but not at the top of the range, and bearing in mind that the applicant's culpability was slightly less than that attributed to him by the judge and his lack of prior convictions, there was no sufficient reason to depart from the usual range of 60 per cent to 66? for the non-parole period. The non-parole period should be towards the top of that range: see Bernier (1998) 102 A Crim R 44. The correct non-parole period is 13 years 6 months. 94 As to the commencement date of the sentence the judge selected 18 August 2000 whereas the date should have been not later than 11 August 2000, the date on which he was convicted and placed in permanent custody. However, the applicant was in custody on this matter from 29 November 1997 until 15 January 1998, a period of 46 days. There is no sufficient reason why the applicant should not have the benefit of that pre-sentence custody. That is not contrary to the Crimes Act (Cth). 95 I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal allowed in part. 4. Dismiss the appeal against the sentence of imprisonment of 20 years. 5. Non-parole period of 15 years quashed. In lieu thereof fix the non-parole period at 13 years 6 months. 6. Vary the commencement date of the sentence of imprisonment of 20 years and the non-parole period of 13 years 6 months to 27 June 2000 with the non-parole period ending on 2 December 2013 on which day the appellant will be eligible for release on parole. **********

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