REGINA v. GAO [2003] NSWCCA 390

TUESDAY 16 DECEMBER 2003 REGINA v. ZHEN YU MICHAEL GAO Judgment 1 SULLY, J: We are able to express a view about this matter at once. I invite Greg James J to give the first judgment. 2 GREG JAMES, J: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was tried in the District Court of New South Wales at Sydney before his Honour Judge Shillington and a jury from 12 August 2002 to 30 August 2002 on one count of having been knowingly concerned in the importation of a commercial quantity of heroin, that being an offence against s.233B(1)(d) of the Customs Act 1901. The appellant, who had pleaded not guilty, was found guilty by the verdict of the jury and was sentenced to 12 years imprisonment with a non-parole period of eight years that sentence to commence on 2 May 2001 and to expire on 1 May 2009. The appellant had been in custody since his arrest. 3 At the trial counsel who appeared on the appellant's behalf took objection to certain of the evidence that it was apparently expected might be tendered on the trial. That evidence included evidence identifying the voice of the appellant. Although the objection was taken to the evidence, the nature of the evidence that it was expected would be tendered was not made entirely clear at the time at which the trial judge on the second day of the trial decided that a voir dire might be held as to the admissibility of that evidence. Objection was taken to the evidence being tendered of a translator or interpreter identifying the voice of the appellant and also that of Detective Tat Lee who had intervened in the process of the appellant being interviewed in order to ask him questions in Cantonese. 4 Shortly, the facts surrounding the appeal as contended by the Crown were that a number of persons had become suspected of having been involved in importing heroin into Australia. The co-accused, Lo, had been identified as arriving in Australia on 25 March 2001 from Hong Kong. Lo was identified as having resided at 2F/38 Campbell Street Haymarket and to be using a mobile phone 0402 666 238. Communications to and from that phone were intercepted lawfully under a telecommunications interception warrant. He was also found to be using 0415 970 206. That service also was lawfully intercepted. On 27 April as a result of lawful interception of the telecommunication services conversations occurred in which an unidentified Asian male enquired as to when Lo would begin working. He stated that it would take a few months but would involve one or two orders per week but if it was not safe he would run away but he did not know where to pick it up or to sign the receipt document but someone would lead him to the work. The unidentified Asian male told Lo he would not know if he was being followed but that he could escape and return to Hong Kong. Lo stated that they did not know anything about him and that he could depart the country. On the following day he received an incoming call from overseas during which he was told that Ah Wong would ring him and show him the way. Still again on the following day, 29 April, he received an incoming telephone call from a telecommunication service 0403 728 025. That call when intercepted yielded the information that an Asian male identifying himself as Ah Wong would met with Lo at "the same old place". 5 Police officers conducted surveillance of 38 Campbell Street Haymarket and at 11.02 am saw Lo leaving the premises at 38 Campbell Street Haymarket. Shortly thereafter Lo met the present appellant. They walked to Darling Harbour where they had a meal together. A member of the police force telephoned the number 0403 728 025. That was the service from which the call was placed to Lo's telephone on 29 April 2001 informing him of the meeting at "the same old place" with Ah Wong. 6 The phone in the possession of the appellant commenced to ring at the time at which the police officer placed the call. Upon the police officer terminating the call the mobile telephone in the possession of this appellant ceased to ring and he was seen to put his mobile phone back in his pocket. 7 The two men walked back to Campbell Street Haymarket, they entered the premises there together and shortly thereafter the appellant left those premises. That evening Lo received an international call telling him he had to stay at his location and he had only to sign for it. The following morning he was again contacted by the same person who indicated he was a friend of Fei Lo and again this person indicated that someone would contact him and deliver an item. He was instructed he should contact Ah Lung and inform him he had received the item. 8 A number of contacts were made with him on 1 May by way of enquiry as to whether the item had arrived and he was told that when it did he should also contact Ah Wong who would come and take possession of the item. He was further instructed that before he handed the item to Ah Wong he should open it from the bag it was in and not tell Ah Wong about that bag. It was reiterated that the item would not have a name on it only that it would be addressed to where Lo was staying. 9 Enquiries were made by the police of a number of international courier companies. One of those companies subsequently identified a consignment with details that it was to be delivered to Unit 38/2 Campbell Street Haymarket. The goods in it were described as documents weighing 2.10 kilos. 10 The consignment was seized by police, examined by members of an evidence team and found to contain a document sachet wrapped in brown tape within which were ten blocks wrapped in brown tape each containing approximately 350 grams of compressed white powder. Upon further examination of the blocks they were revealed to be 3.4827 kilograms of heroin with an estimated street value in excess of three million dollars. A controlled delivery was thereupon decided upon and an inert substance substituted for the heroin. Attempts to deliver the package to the address shown on it were unsuccessful because the address did not exist. 11 About 9.21 pm on 1 May after these attempts, Lo had a telephone conversation with the appellant from 0415 970 206 to 0403 728 025. The appellant told a third person to take Lo to a hotel on Broadway on Parramatta Road. Lo later rang him to say he had arrived. The appellant told Lo to say that his name was Lee and there was a room booked for him. Lo contacted the appellant and informed him he had checked into room 103 and told him the fax number. Subsequently Lo received a telephone call from a man overseas who confirmed that Lo was in room 103. A second male then spoke to Lo and told him he would receive a fax relating to a weigh bill which had a number on it with the prefix 508. Lo was told the number on the bill had nine digits. The Airways bill that had accompanied the consignment purporting to be documents had a number GD508765286WW. Lo was instructed to ring the company the following day and state that he would collect the consignment, that he would need to take the fax and his passport as identification to collect the package. The appellant then spoke to the overseas male. 12 Arrangements were made for the appellant to ring concerning the package as his English was better than Lo's. The appellant was to quote the number on the fax and tell the company that because the delivery did not occur he would go and collect it. 13 At about 1.01 am on 2 May 2001, Lo received a telephone call from overseas, spoke to a male and said he had received the facsimile. About 8.13am on 2 May, Lo received a telephone call from an identified male overseas. During this call the unidentified male spoke with Lo and also with the appellant. At about 11.45 am, police surveillance observed Lo leave 38 Campbell Street Haymarket and approach a courier driver in Campbell Street. A short time later Lo returned to 38 Campbell Street. 12.11 pm, Lo received an incoming call from overseas and was instructed not to take the stuff, throw away the paper from last night, throw away everything and not to receive it as there was a problem. At 12.16 pm, Lo received another incoming telephone call from overseas and was instructed to break the telephone he was using and to throw it away. 14 About 12.15 pm, police surveillance observed Lo leave Campbell Street on foot. At that time he appeared to be talking on a mobile phone. A short time later he returned to 38 Campbell Street, a few minutes later again he left this time carrying a shopping bag. He walked round the corner into Pitt Street out of sight and when shortly thereafter observed it was noted he was no longer carrying the shopping bag. He went to premises in Sussex Street and eventually left the men's toilet there walking out of the centre to a Chinese food court in Dixon Street. Thereafter, after dining, he walked to Hay Street where he caught a light rail tram to Star City. 15 At about 1.20 pm, this appellant was observed in the vicinity of Pitt and Campbell Streets and for about two hours remained in the vicinity of the premises at 38 Campbell Street and the surrounding streets on foot appearing to keep close observation of 38 Campbell Street and using a mobile phone frequently. 16 Between 2.00 pm and 3.00 pm, a police officer acting as a courier driver attempted to deliver the substituted package to the premises at 38 Campbell Street. On both these occasions the appellant was observed to be closely observing the actions of the courier driver and being in close proximity to him but did not attempt to take delivery of the package. Service number 0403 728 025 attempted to contact service number 0415 970 206 between 1.36 pm and 3.15 pm that day, that is roughly during the period to which I have just referred, on some 24 occasions. 17 At 3.15 pm, Lo was arrested by police at Star City Casino with mobile telephone 0402 666 238 in his possession. Mobile telephone 0415 097 026 was not located either on Lo's person or at Campbell Street Haymarket but at the time of the appellant's arrest at 3.20p m he had three mobile telephones in his possession which he stated belonged to him. One of these telephones was 0437 28 025, the last number dialled from that telephone when the memory was recovered was 0415 970 206: the phone number used by Lo. He was also in possession of the phone 0415 698 296 which listed in the phone's memory the number 131 150, is the number for the same international courier company that was to deliver the package. 18 A search of the hotel room 103 at the A-Line Hotel 253 Broadway produced a small off-white diary in which was a photograph of the appellant and a form with his personal particulars on it. There was confirmation from the staff at that hotel of the receipt of the fax message for room 103 on the evening of 1 May 2001. 19 In the taped record of interview the appellant gave his address and asserted he was residing with his parents at 5/401 Marrickville Road Dulwich Hill but he declined to answer further questions in relation to the offence. He asserted that his current source of income was $50.00 a week which he received from his parents. His parents denied that he resided at that address but asserted that he did visit frequently. He was apparently currently enrolled in a TAFE course. 20 It was in the context of that case that the issue arose as to the identification of the appellant's voice on the telephone as used in the telephone conversations. Following the voir dire in which the appellant did not give evidence but Detective Tat Lee did, the trial judge delivered a short judgment on the admissibility of the evidence. Despite the contention that the trial judge should here held that there had been an impropriety associated with the conversation between the appellant and Mr Lee, the trial judge found in a reasoned judgment that there had been no impropriety of any kind, that the conversation conducted by Sergeant Lee with the appellant was entirely innocent and without any forethought as to the Sergeant attempting in any way to obtain from Mr. Lee identification material which might facilitate proof of the case against him. That conclusion was reached in the context of the trial judge's awareness of the appellant having stated to police that he was unwilling to answer any questions concerning the commission of the alleged offence. Further the trial judge also held against the submission that had been made at trial that the police officer, whether as a person who had listened to a number of the conversations or as an expert, was unable to effect an admissible identification of the voice of the appellant. 21 The first ground of appeal asserted contends that the evidence of the identification of the appellant's voice by Detective Lee was inadmissible. It is contended that what was said in answer to the questions put by Detective Lee as to the appellant's background was a representation and hence an admission and since it was not recorded at the time that it was given the operation of s.108 of the Criminal Procedure Act 1986 was attracted so that the material was not admissible. I do not accept that submission. 22 What was heard was not a representation, but it was material from which an identification could occur. Representation is defined by the dictionary to the Evidence Act 1995 as referring to an express or implied representation, a representation to be inferred from conduct or a representation not intended by its maker to be communicated or seen by another person or a representation that for any reason is not communicated. What was said no doubt contained representations but it was not itself a representation. It was sought to tender the content as relevant but the evidence as to the correspondence of the sounds used by the applicant with the sounds used by the person who had spoken on the telephone. In my opinion that ground of appeal has no substance and should be dismissed. 23 As to the issues that were raised on the voir dire directly that is whether there had been any impropriety from the questions being asked as they were or whether the potential use of evidence was in any way unsafe as liable to cause undue prejudice if elicited before the jury, I detect no error in the course taken by the trial judge on his findings of fact. I see no basis upon which it could be said that the trial judge fell into any legal error or error of principle. In my view the first ground is not made out in any such particular at all. As to the asserted inadmissibility of the detective's opinion of the user of the voice, there is no analogy in the circumstances existing here where the evidence involved the evidence of a person who had heard a number of the conversations as intercepted and was able to identify the voice used in those conversations from the voice used during the interview procedure with that visual identification procedure the High Court referred to in Regina v. Mundarra Smith [2001] HCA 50. Indeed the situation here is far more analogous to that referred to in Regina v. Leong (1999) 47 NSWLR 405. 24 It was open to the officer, the conversation having been in Cantonese and thus not being in a form within the everyday experience of jurors to have given evidence identifying the sounds used in speech by one of the speakers with the sounds used when speaking in Cantonese by the person who was interviewed. I see no error in the trial judge having taken the view that he should proceed in accordance with the views that were expressed in Leong (supra). 25 The second ground of appeal contended that the trial judge had failed to give a particular direction to the jury. Although that ground was referred to in written submissions here it was not maintained or pressed on enquiry when oral submissions were sought from counsel appearing for the applicant and hence I need not refer to it further. 26 A submission was also made in support of the application for leave to appeal against sentence that the applicant's sentence was too severe having regard to the role that it was submitted the applicant had performed in the importation by comparison with the role said to have been performed by the man, Lo. The learned trial judge when sentencing the applicant referred to the circumstances of the importation and the activities of the two persons involved. He said:- "It is clear from the evidence presented that each of the prisoners were not principals in the importation, but nevertheless were trusted and responsible agents for the parties. The large quantity of heroin involved in the importation marks it as a grave criminal offence. Despite what has been put to me by counsel for each of the prisoners I see little to differentiate between the prisoners on the matter of culpability. Neither has shown contrition." 27 The trial judge made reference to the appellant having had a prior criminal record involving some sixteen offences which had been dealt with together. Those 16 offences were offences for which the appellant had received the rising of the court for 12, three 558 recognisances and one sentence of periodic detention. His Honour made reference to the appellant's subjective circumstances and in particular the dependence on him of his parents and his helpful and obedient role towards them. He had apparently been a person who had been in employment in many occupations was not addicted to heroin and was an Australian citizen. He had in custody conducted himself in a way his Honour described as outstanding. He had however continued to deny any involvement in the enterprise. In this regard it should be noted that the circumstantial case against him leaving aside any question of identification of his voice appears to me at least to have been entirely overwhelming. His Honour found notwithstanding that that neither prisoner had shown any contrition with regard to their involvement. 28 His Honour had taken into account the matters to which his attention was directed by s.16A of the Crimes Act 1914 (Cth) and imposed the sentences to which I have referred in that regard. He saw no reason to discriminate between the two offenders. On the evidence as I see it, it was entirely open for him to take that course. It might have been open for him to find that either one of the offenders was less culpable or more culpable than the other perhaps in some degree but as the trial judge appreciating the facts as he did, concluded factually that he would not distinguish between them, I see no error in law or principle in his not doing so nor any other basis that any other sentence was warranted in law and should have been passed. Indeed when I have regard to the quantity of heroin and to the fact that the arrangements seem to be not only in relation to one importation but suggest that what it was intended to do was to put in place a basis upon which others might occur, I for my part would regard the sentence as entirely lenient. Therefore I propose that the appeal against conviction be dismissed, the application for leave to appeal against sentence be granted, the matter having been fully argued and the appeal against sentence dismissed. 29 SULLY, J: I entirely agree with the orders proposed and with the reasons advanced by his Honour for the orders. 30 ADAMS, J: I also agree. 31 SULLY, J: The orders then will be as proposed by his Honour. **********

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