D. Evidence of the similarity of the three heroin seizures."
30 At the inception of the trial, the Crown indicated an intention to lead the above categories of evidence as part of the Crown case. Objection was taken by counsel then appearing for the appellant. The trial transcript does not record details of the submissions put, respectively, by the Crown and by counsel for the appellant. There is, however, a transcript of a judgment delivered ex tempore by the learned trial Judge. It is useful to quote the following passages from that judgment in explanation of the way in which the competing submissions were framed:
"…………….. (I)t is fairly clear that the jury will have no difficulty in coming to the conclusion that the heroin was actually delivered by Mr. Fung to Mr. Micalizzi. The question for the jury then, as I apprehend it, will be whether Mr. Fung knew that heroin was in the back pack and that the Crown must prove it in order for the jury to acquit Mr. Fung. [sic The transcript is described as a revised transcript, but I suggest that the last sentence should read: "The question for the jury then, as I apprehend it, will be whether Mr. Fung knew that heroin was in the back pack. The Crown must prove it in order for the jury to convict Mr. Fung."]
The Crown relies upon circumstantial evidence to make out its case as to knowledge. In that context the matter has arisen for determination by me after the swearing in of the jury before any evidence has been called or the Crown has opened.
The Crown wishes to lead, in support of its case as to knowledge, some evidence concerning the relationship of the accused, Mr. Fung, to a Mr. Gary Lammas [sic: but I suggest that the reference to 'Mr. Gary Lammas' is incorrect and that it is clear from what follows that his Honour was intending to refer to either or both of Mr. Michael Lam and Mr. Lam Sik].
That evidence has two steps to it. One is that Mr. Fung from 1 April 2000 to the evening of 24 June 2000 at 18.47, that is 6.47 p.m, engaged in numerous telephone calls with either Mr. Michael Lam or his father Lam Sik. In particular, the Crown wishes to rely on the three calls on 24 June 2000 at 16.56, 18.16 and 18.47, the first and last of which were from Mr. Fung's mobile telephone to Michael Lam and the intervening one from Mr. Michael Lam's phone to Mr. Fung.
The Crown wishes to establish from that evidence that there was, prior to the drop off of the heroin, an intimate relationship between the accused and Mr. Lam and his father, at least so far as telephone contact was concerned and so far as the last three phone calls to which I have referred, the Crown seeks the jury to draw the inference that they were made for the purpose of reporting to Mr. Michael Lam. That latter inference from those last three telephone calls depends upon what is to be made of the other evidence which is the second step and that is that Mr. Lam and his father were arrested in possession of heroin packaged, the Crown says, in a remarkably similar way to the packaging of the heroin delivered by the accused, Mr. Fung, to Mr. Micalizzi on 24 June 2000.
The Crown seeks from that the jury to draw the inference that the heroin delivery by Mr. Fung to Mr. Micalizzi came from the Lams and from the combination of those various pieces of evidence and the other evidence in the case. The Crown seeks the jury to draw the inference that the accused knew that what it was delivering to Mr. Micalizzi was in fact heroin. [sic: but I suggest that there should be a full stop after the word 'Lams'; and a comma rather than a full stop between the words 'the case' and the words 'The Crown'].
On its own, the evidence of the relationship of the accused to the Lams and to the finding of the heroin in the possession of the Lams would not be sufficient for any firm inferences to be drawn adverse to the accused and the Crown does not suggest otherwise but the Crown says that in combination with the other evidence sought to be adduced in the case, that it provides sufficient evidence for irresistible inference to be drawn on a circumstantial basis in respect of the accused on the question of knowledge."
31 His Honour then summarises as follows the competing submissions that had been put by counsel at trial for the present appellant:
"The accused through his representative ……… opposes the calling and the adducing of that evidence, firstly on the basis it is irrelevant and cannot give rise to any of the inferences sought by the Crown whether in combination with other evidence or not, and then on the basis that under s 137 of the Evidence Act 1995 there is a danger of unfair prejudice to the accused which outweighs any probative value it might have and therefore must not be adduced. [Counsel] has also made reference to s 135 of the Evidence Act. ……………………."
32 Having thus summarised the competing submissions, his Honour is recorded as having given this ruling:
"I am of the view that in combination with other evidence sought to be adduced by the Crown the evidence as to the accused's relationship with the Lams and the Lams being found in possession of heroin packaged in a similar way to that delivered by the accused to Mr. Micalizzi does have significant probative value and is highly relevant, and therefore the question is whether s 137 applies."
33 His Honour then went on to consider the effect of s 137; but it is not necessary for the moment to refer in detail to that portion of his Honour's ruling.
34 His Honour was, in my respectful opinion, correct in his perception that the crucial issue which would have to be determined by the jury was the issue of the extent of the appellant's knowledge at the time of the handing over by him to Mr. Micalizzi of the back-pack and its contents. It will be observed that his Honour's ruling, as recorded, does not give any indication of what had been suggested to his Honour by the Crown as being "the other evidence sought to be adduced in the case". It will be observed, further, that his Honour's ruling, as recorded, does not expose any process of reasoning supportive of the conclusions stated baldly by his Honour "……….. that in combination with other evidence sought to be adduced by the Crown the evidence as to the accused's relationship with the Lams and the Lams being found in possession of heroin packaged in a similar way to that delivered by the accused to Mr. Micalizzi does have significant probative value and is highly relevant, ………….".
35 It is, therefore, necessary for this Court now to examine more particularly the controversial material. Before doing that, it is useful to say something about the nature of what it was that the Crown was required to prove beyond reasonable doubt in connection with relevant knowledge in the appellant.
36 The leading Australian authority is the decision of the High Court of Australia in Bahri Kural v The Queen [1987] 162 CLR 502. That was a case involving, not a supply of a prohibited drug in breach of the Drug Misuse & Trafficking Act 1985 (NSW), but an importation of a prohibited drug contrary to the Customs Act 1901 (Cth). The principles stated in the following passages are, however, equally applicable to the former, as to the latter, class of offence:
"Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.
Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law……….". [162 CLR, 504, 505 per Mason CJ, Deane and Dawson JJ]
37 A subsequent decision of the High Court, Pereira v Director of Public Prosecutions [1988] 35 A Crim R 382, a Court judgment, adds to the exposition in Bahri Kural the following propositions:
"………………………….. (W)here knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt." [35 A Crim R, 385]
38 In the present case, there were no pre-trial admissions, and there were no admissions at trial, by the appellant concerning the matter of his relevant knowledge. It became, therefore, necessary for the Crown to prove beyond reasonable doubt as part of its case against the appellant facts and circumstances which, taken in combination, entailed that the only rational available inference was an inference that, beyond reasonable doubt, the appellant knew, when he handed over the back-pack and its heroin contents to Mr. Micalizzi, that he was in fact handing over a quantity of prohibited drugs.
39 Leaving aside the disputed material concerning the Lams, the Crown was able to point to "…………… a combination of suspicious circumstances and failure to make an inquiry ………. [which might] ………..sustain an inference of knowledge of the actual or likely existence of …………. [the relevant knowledge in the appellant]." Those "suspicious circumstances" are summarised sufficiently for present purposes in the following extract from the written Crown submissions in the present appeal:
" - The appellant had the back-pack containing the heroin in his car;
- The calls to Micalizzi were made by a means preventing the caller from being identified, that is, from a public phone;
- At the time the calls were made the appellant was in possession of a mobile phone, yet went to significant inconvenience to go a public phone for minimal cost saving;
- The extremely guarded content of the two phone calls to Micalizzi. The appellant did not introduce himself, he did not say why he was ringing or that he was ringing on behalf of anyone else, he did not mention the backpack, he did not give his mobile phone number for Micalizzi to ring him back;
- When the appellant went to meet 'Tony' he did not take with him the very object of the exercise, namely the backpack. Rather he left it secured in his car parked outside the Commonwealth bank;
- Having met Micalizzi they then walked off up Pitt Street towards Bathurst Street, that is in the direction opposite to where the Nissan containing the backpack was;
- When the appellant went to his car with Micalizzi, the appellant drove Micallizzi away from the meeting place;
- The appellant provided the backpack to Micalizzi and let him out away from the original meeting place;
- The use of a hire car, albeit in the appellant's name, due back the very afternoon of the supply."
40 The written Crown submissions summarise also, and as follows, the substance of what the Crown sought to get out of the controversial evidence concerning the Lams:
" - Records of phone calls established that between 1 April 2000 and 24 June 2000 the appellant rang both those men and they rang him on a number of occasions. In particular, there was some phone contact on the day the car was hired and later on on the day that the backpack was delivered to Micalizzi;
- Evidence (in the form of a statement of events ex Z), that on 6 September 2000, Lam Sik and Michael Lam supplied to a Mr. Chung 2.779 kg of heroin;
- A search warrant on Michael Lam's home at Parramatta that day located a further 1.801 kg of heroin and other items;
- The heroin was packaged in basically the same distinctive way as the heroin supplied by the appellant on 24 June 2000 and scientific examination revealed that it came from the same batch of heroin as that supplied by the appellant on 24 June 2000."
41 The fourth of the items quoted in the preceding excerpt from the Crown submissions, needs some further careful examination in the light of the evidence actually given at trial.
42 The Crown called at trial a Federal Agent named Christine Geisler, and one Snezana Skopec who was described as "……….. a senior profiling and research chemist at the Australian Forensic Drug Laboratory ……….a section of the Australian Government Analytical Laboratories at Pymble".
43 Federal Agent Geisler was the witness through whom the Crown sought to establish the distinctive nature of the packaging of the heroin which was handed over by the appellant to Micalizzi on 20 June. The cross-examination of this particular witness elicited the following evidence:
"Q. As far as heroin is concerned, would you agree that from your knowledge it's normally manufactured in a country where opium is produced?
A. Yes.
Q. After the harvest, multi-kilo lots are made then cut up and put into blocks and distributed around the world?
A. Generally, yes.
Q. As far as the heroin is concerned, the chemical make-up is much the same with some variation depending on how it's been mixed?
A. Yes.
Q. And as far as how it's wrapped is concerned, it doesn't vary much in the way it's transported, for instance, as in this case, there've been some wrapped in wrapping paper and plastic bags and are inside a silver foil, sometimes it appears like that?
A. Sometimes it does, yes.
Q. Sometimes it appears just in wrapping paper with plastic bags and no silver foil?
A. Sometimes, yes.
Q. But it's all essentially done the same way, that it's wrapped a number of times in items to try to keep it together so that it won't break and fall out and have little bits of white powder falling out of it or however they bring it into Australia?
A. Usually, yes.
Q. It's wrapped then also a number of times to try and keep the scent in so drug detector drugs dogs and things like that won't come across it as they are going through the Customs barrier?
A. Yes.