THE QUEEN v YAU KIM LAM

The Indictment

1 The indictment in this proceeding alleges that the accused man, Ta Song Wong, imported a commercial quantity of heroin into Australia on 16 April 2003, contrary to s. 233B of the Customs Act 1901.

2 Each of the other accused persons is charged with "aiding and abetting counselling or procuring" the commission of the offence, namely the importing of a commercial quantity of heroin into Australia.

The evidence the Prosecution seeks to lead

3 The prosecution seeks to lead evidence of the acts and utterances of various of the co-accused which took place other than in the presence of other co-accused. In particular the prosecution seeks to establish that things said and done by the accused men Lam, Teng and Lee are admissible against each of them and against the other co-accused persons.

The submissions of the Prosecution

4 The prosecution contends that such evidence is admissible. It relies upon the fact that the case for the prosecution is circumstantial and is made up of evidence of a combination of many facts and circumstances. The prosecution contends that the case is not a case where the circumstances relied upon to prove guilt are an indispensable link in a chain of reasoning, but rather one where it is "...the accumulation of circumstances, each perhaps lending weight to the other, which must be looked at by the jury for the purposes of determining whether the Crown has satisfied them, to the requisite standard, of the guilt of the accused; and whether the Crown has excluded to their satisfaction beyond reasonable doubt all hypotheses reasonably consistent with innocence."[1].

5 On this basis the prosecution submits that evidence that one or more of the accused acted as a group of people who possessed the common aim of importing a prohibited narcotic import into Australia, is admissible as a natural and obvious part of the overall case against each accused. It is further submitted that, used in this way, the evidence of acts and utterances upon which the prosecution seeks to rely, is not hearsay but rather is evidence used to prove the fact of "a combination" having existed, rather than the truth of the utterances.

6 In this regard the prosecution relies upon Ahern v R[2] where the Court said[3]:

"In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstances to take it outside the hearsay rule, such as implied authority making the acts and words of one the acts and words of the other."

7 The prosecution contends that notwithstanding that Ahern was a conspiracy case, this approach applies to the present case in that the evidence of acts, facts and matters upon which the prosecution relies demonstrates a combination of a large group of people with the intention to import heroin into Australia. Furthermore, the prosecution relies upon the following statement of the Court in Ahern[4]:

"However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination maybe drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis."

8 Thus, it is established, at least in cases of conspiracy, that the rule in Tripodi v The Queen[5] can apply in appropriate circumstances if there is sufficient independent evidence to show that an accused person acted in combination with others. The approach to be taken by the trial judge is stated by Ahern[6]:

"The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity."

"If the trial judge concludes that there is insufficient independent evidence of participation of the individual for this purpose, then it will be necessary for him to instruct the jury upon the limited purpose for which the evidence of the acts and declarations of the others may be used. It may in some cases be desirable for the trial judge to give a preliminary ruling upon the depositions, but it is only when the whole of the evidence is in that a final ruling can be given. It is conceivable that there will be cases, although they are difficult to envisage, where evidence of the acts and declarations of one alleged conspirator in the absence of another is admissible only to prove the participation of that other and in those cases it may be necessary to require the prosecution to take the preliminary step of laying the ground for the admission of the evidence before admitting it at all."

10 The manner in which the principles might be applied, again at least in relation to conspiracy cases, was considered by the New South Wales Court of Criminal Appeal in R v Masters[8] when it said:

"In order to establish the existence of the conspiracy, evidence is admissible of acts done or statements made by persons other than the particular accused even if he were not present - not (so far as the statements are concerned) to prove the truth of what was said but in order to establish from the fact that the acts were done or the statements were made, the inference that the agreement which constituted the conspiracy charged had been entered into... That evidence is direct evidence not hearsay... and it is admissible for that purpose even if the acts were done or the statements were made before the particular accused joined or became a participant in that conspiracy, for it does not depend in any way upon any acknowledgement or acceptance of the truth by the accused of the statements so made.

In order to establish that the particular accused participated in that conspiracy, there must first be reasonable evidence of that participation - that is, evidence independent of those acts and statements by other persons - which is admissible in the ordinary way against that accused... Once the judge has decided that there is such reasonable evidence in the case against that accused... the acts and statements by other persons in the conspiracy will become admissible against that accused not only as establishing the existence of the conspiracy, but also, if they were done or made in furtherance of the conspiracy as establishing his participation in it."

11 Similarly in R v Chai[9] Badgery-Parker J said[10]:

"A distinction is to be drawn between acts or words of co-conspirators the doing or uttering of which provide circumstantial evidence of the existence of a conspiracy and of its nature; and acts or words of co-conspirators which expressly or impliedly assert the participation of the accused in the conspiracy. As to the former, they are admissible against an accused person whether they took place before or after a time as to which there is evidence available to show his participation. As to the latter, they will be excluded by reason of the hearsay rule, unless rendered admissible by virtue of the co-conspirator's rule."

12 Consistent with these cases, the prosecution contends that once there is reasonable independent evidence of the involvement of any the accused persons in the combination of people that possessed a common aim to import a prohibited narcotic substance into Australia, such evidence can be admitted against that person pursuant to the co-conspirator's rule under Tripodi and as applied in Ahern.

The submissions of the Accused

13 The first issue which arises as to the submission of the prosecution is a submission made by counsel for the accused to the effect that the principles in Tripodi's case do not apply to make the hearsay acts and utterances of the principal offender admissible against an aider and abetter. This submission is made by Mr Hayden of counsel on behalf of the accused Song Man Sun.

14 Furthermore, Mr Meredith of counsel for Yau Kim Lam submits that the Tripodi doctrine is "inconsistent with the terms of the Code" and is thus inapplicable. He submits that the Code does not allow for the establishment of criminal responsibility by resort to this doctrine in a prosecution based on aiding and abetting, counselling or procuring an offence. He submits that the Code being the sole repository of the general principles of criminal responsibility under Commonwealth law, complicity (and common purpose) is dealt with exclusively by s. 11.2 of the Code. He submits that this provision of the Code does not provide for liability on the basis of acting in concert.

15 Furthermore, he submits that the nature of the criminal responsibility provided for in s. 11.2 of the Code does not depend on agreement between the party committing the actus reus and the other parties to the offence. He contrasts this with "acting in concert" which does depend upon agreement as is made clear by McHugh J in Osland v R[11]:

"However there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of pre-concert or agreement with that person to commit the crime. In that category the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2] by Smith J who directed the jury in the following terms:

'The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.'"[12]

16 Mr Meredith submits that the application of the principles of Tripodi are based on the existence of pre-concert proven by "reasonable independent evidence" and that Tripodi was a case concerning the acting in concert of various persons. The basis for the admission of the acts and declarations of others in proof of their content against the absent accused rests upon the establishment of agreement, which he submits is inconsistent and incompatible with the terms of liability provided for in the Code.

17 However, the prosecution contends that the application of the rule in Tripodi is not confined to matters concerning conspiracy or to matters where the accused and others are alleged to have acted in concert or with a common design. It is submitted that there is no reason in logic why the operation of the rule should be restricted as submitted by Mr Hayden of counsel for Song, to cases where a substantive crime is alleged. It is submitted that the rule is an evidentiary rule which makes acts and utterances that would otherwise be hearsay, admissible to prove participation in a combination. The admissibility of the evidence, it is submitted, occurs because the fact of combination implies an authority for each participant to speak or act on behalf of others in the combination. It is the fact of combination that is significant not the particular basis upon which the accused is indicted.

18 The prosecution relies upon R v Courtney-Smith (No. 2)[13] where the New South Wales Court of Appeal considered the application of the Rule in Tripodi's case. The argument raised on appeal by the appellant was that he had not been charged with committing an offence jointly with another co-accused, but rather separate crimes had been alleged against his co-accused and against him. He submitted that he was entitled to have the evidence confined to the acts which allegedly involved him in the substantive crime charged. The Court of Appeal said[14]:

"As the importation was not achieved singly, but involved others, it would have been entirely artificial and confusing to have attempted to exclude, more than was done, the participation of others notably [the co-accused]. In so far as evidence was admitted concerning his acts, it was the evidence of their common involvement in one element of the crime of which the appellant, singly, stood charged viz the knowing concern and the importation.

Because it was never the case of the Crown that the appellant was the only person involved in the importation of the subject container, it was inevitable that, in proof of importation itself and of the venture centred upon the importation, some evidence would be given as to substantive elements of the crime which involved other persons."

19 Thus, as I understand the argument advanced on behalf of the prosecution, and accepting that the Code may not recognise the concept of acting in concert, the co-conspirator's rule is nevertheless available to prove participation in the carrying out of a joint arrangement. It is submitted that the co-conspirator's rule is no more than an evidentiary principle based on the idea of an agency existing between offenders and that its application does not depend upon the principles of criminal responsibility provided for in the Code.

Is the rule in Tripodi incompatible with the Code?

20 Much of the difficulty in relation to the issues which have arisen in this matter is by reason of the fact that it appears to be clear that the doctrine of joint criminal enterprise or acting in concert is not the subject of the Code. Had the events which are the subject of the allegations made against each accused occurred before the application of the Code to the Customs Act there can be little doubt that the cases against the accused men would have been put on the basis that they were acting in concert or by way of joint criminal enterprise in committing the offence and importing heroin into Australia. However The Guide for Practitioners published by the Commonwealth Attorney General's Department contends expressly that the common law doctrine of "acting in concert" has no counterpart in the Code. It states as follows[15]:

"11.2H The common law doctrine of 'acting in concert' has no counterpart in the Code: at common law offenders who 'act in concert' in the commission of an offence are said to be parties to a 'joint criminal enterprise'. The New South Wales Court of Criminal Appeal gave a succinct and authoritative statement of the doctrine in Tangye: [(1997) 92 A Crim R 545; 556-557 endorsed by McHugh J in Osland [1998] HCA 75; (1999) 159 ALR 170]

'[W]here two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise... A joint criminal enterprise exists when two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express... A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.'

In its current version, enunciated by McHugh J in the High Court decision in Osland, the essential defining element of the doctrine of acting in concert is that liability is taken to be direct rather than derivative. Since the conduct of each of the participants in a joint enterprise is attributed to each of the others, all are taken to be principal offenders. If A and B agree to steal a vehicle belonging to C, each is taken to have appropriated the vehicle though one keeps watch while the other drives the vehicle away. The doctrine has no existence under the Code. The argument in support of that assertion is short and conclusive.

• The Code 'contains all the general principles of criminal responsibility that apply to any offence'; it cannot be supplemented by extraneous principles imported from the common law: s. 2.1 Purpose;

• Liability under the Code requires proof of:

i. 'such physical elements as are, under the law creating the offence, relevant to establishing guilt': s. 3.2 Establishing guilt in respect of offences; or

ii. conduct which matches the requirements of s. 11.2 Complicity and s. 11.3 Innocent Agency.

• These possibilities exhaust the ground for imputation of criminal conduct under the Code. Complicity is a derivative form of liability and the doctrine of innocent agency is restricted to instances where criminal conduct is procured by the principal.

Since the doctrine of joint criminal enterprise, or acting in concert, is taken to be a form of direct liability, it is incompatible with the structure of the Code and has no place in Commonwealth criminal jurisprudence."

21 The consequence of this is that in the case with which I am concerned, the accused Wong, who it is alleged travelled from the Pong Su to the Victorian coastline by dinghy with 150 kilograms of heroin is indicted with the offence of importing a commercial quantity of narcotic goods into Australia. All other accused are indicted on the basis that they aided and abetted him and/or counselled and/or procured the importation thereof by him. Some may consider that in the circumstances of this case the indictment of one person as the importer and the indictment of all others as accessories, is somewhat artificial.

22 Nevertheless, in the case before me there is sufficient evidence to establish that in respect of the alleged importation of heroin into Australia from the Pong Su a combination existed between at least some of the accused men and between them and others who are not indicted, to import heroin into Australia. The Crown case is that the Master of the ship together with other members of his crew acted in combination with other persons whose identities may or may not have been known to them but who were waiting on shore to take delivery of the heroin. The Crown case is that the preparations for the arrival of the heroin and the ultimate presence of the shore party, were not simply accidentally concurrent to the arrival of the Pong Su, but that there was a compelling coincidence in timing that bespeaks the existence of arrangement or combination to effect the criminal purpose. The evidence suggests strongly that heroin was conveyed from the Pong Su by Wong and a person now deceased, and came into the possession of members of the shore party. A substantial quantity of heroin was found to be in the possession of Lee and Teng and there is evidence which suggests that Lam was present at the scene when the heroin was brought ashore and that he participated in the effort of bringing the heroin ashore.

23 The first issue to be determined is whether the contention made by Mr Meredith on behalf of the accused person Lam, that s.11.2 of the Code does not depend upon agreement between the party committing the offence, and the other parties to the offence, and that the basis for the admission of the acts and declarations of others being evidence of agreement, is inconsistent and incompatible with the terms of the Code, is correct. A similar submission was made by Mr Russell on behalf of the accused man Ju Chon Ri whereby he submits that the application of the Tripodi principle is not available where his client has been charged with aiding and abetting under s.11.2 of the Code.

The rule in Tripodi is not limited to conspiracy cases

24 It is clear that the Tripodi principle is applicable beyond cases of conspiracy. In Tripodi itself the issue was the admission into evidence of acts and declarations of others outside the presence of the accused in proof of larceny rather than conspiracy. In Ahern it was stated by the Court:[16]

"... the principle upon which such evidence is admitted extends beyond cases of conspiracy. The significant distinction between conspiracy and other offences for present purposes is that indicated in Tripodi [at p.6], namely, that on a charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of the evidence. The question does not, therefore, arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred."

25 A further unequivocal statement to this effect is found in the decision of Rodan J in R v Jackson:[17]

"The first myth is that if conspiracy is charged against an accused, that lets in evidence of a type which would not be admissible against him if he were charged only with a substantive offence or substantive offences committed pursuant to that conspiracy. The type of evidence which is the subject of this myth, is evidence of the acts (including declarations) of co-conspirators committed in furtherance of the conspiracy. The true position, as I understand it, is that the rule relating to the acts (including declarations) of co-conspirators - if it can properly be called a rule at all - applies equally in all cases in which common design is alleged, irrespective of whether the actual charge is of conspiracy, or of a substantive offence or series of substantive offences committed pursuant to a conspiracy."

26 In that decision Rodan J quotes with approval the authors of Phipson on Evidence, who state:[18]

"Where two persons are engaged in a common enterprise, the acts and declarations of one in pursuance of that common purpose are admissible against the other. This rule applies in both civil and criminal cases and in the latter whether there is a charge of conspiracy or not, provided that the crime charged was committed in pursuance of a conspiracy, ie an agreement of two or more persons to commit it."

27 It is true that a consideration of the reported authorities reveals the application of the so-called co-conspirators rule has not been applied to cases in which the accused have been charged with aiding and abetting the commission of a principal offence. No doubt that is because the proof of an agreement is usually sufficient to enable the prosecution to conduct its case on the basis of acting in concert, and furthermore that many cases of aiding and abetting involve the presence of the accused at the place of the commission of the principal offence.

28 However, that is not to say that such evidence as there may be of acting in combination, and even of pre-concert is not admissible in cases of aiding and abetting under the Code. Although many cases of aiding and abetting rely upon presence of the aider and abetter at the scene of the crime, it is clear in my view that such actual presence is not necessary. In respect of the words "aid and abet" and other similar words, Cussen ACJ said in R v Russell:[19]

"All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words and conduct doing something to bring about, or rendering more likely, such commission."

29 The above observation was adopted with apparent approval by Mason J in Giorgianni v R.[20] Likewise, there are numerous cases of aiding and abetting where activity which occurred prior to the commission of the offence has been held to be admissible.[21] Thus a link in purpose between an aider and abetter and the principal offender is required. As said in Thambiar v R:[22]

"One man may abet another by helping to set the stage even before the victim has been found. If a man helps another in preparation for crimes of a certain nature with the intention that the other shall commit crimes of that nature he may abet those crimes when they come to be committed."

Conclusion

30 That being the circumstance I conclude that there is no logical reason why an evidentiary rule that is based upon common sense principles, that is that proof that a number of people have combined with the intention of helping another to commit a crime, is not available to be applied to cases which arise under the Code and to cases brought pursuant to s.11.2 of the Code. I do not see that the application of the rule in Tripodi is inconsistent and incompatible with the terms of liability provided for under the Code or inconsistent with an indictment that accused persons have aided and abetted an offence.

31 Furthermore, I conclude that where there is, as in the present case, evidence which demonstrates that a number of persons have combined together with a common purpose to assist and/or facilitate the commission of an offence, then as a matter of both law and common sense, the planning activities related to the provision of such assistance and/or facilitation, including relevant acts and conversations, are admissible to prove such a combination, and the fact of a common intention. Furthermore in certain circumstances such evidence may be admissible to prove the extent of the participation of those persons in the commission of the crime.

32 In my view, evidence of acts and utterances is prima facie admissible to demonstrate that there was a combination, as alleged by the prosecution in this case, between such accused persons as to whom the evidence relates, to import narcotic goods into Australia. This evidence may be led not to prove the truth of any assertion or implied assertion but to establish that there was a combination and a common intention for such accused persons to combine to engage in assisting with the importation of heroin into Australia.

33 The issue which then arises is whether there is sufficient independent evidence of the participation of any individual accused person so as to enable the evidence to be used to prove the participation of that accused person in the combination. That is, are there circumstances in which evidence of the acts and declarations of other participants outside the presence of the individual may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation? In my view, and notwithstanding the fact that the Code appears not to contemplate proof of criminal responsibility by application of the concept of acting in concert, where there is evidence that co-accused and or others have participated in the carrying out of a joint arrangement which is relevant to the offence with which they are charged then such evidence is admissible in accordance with established principles. Furthermore, by structuring criminal responsibility in the way that it appears to have done, it is highly unlikely that Parliament did intend to remove what is a clearly established principle of evidence from application to cases prosecuted under the Code provisions.

34 Separate rulings in relation to individual persons will deal with the issue of the consequence of this "in principle" ruling. Furthermore, as I understand it, further submissions are yet to be made in the event that I rule, as I have done, that as a matter of principle, evidence may be led as to the acts and utterances of one or more of the accused persons, in the absence of other accused persons to prove the fact of the combination of persons for a guilty purpose, and not to establish the truth of the acts or utterances.

[1] R v Kotzmann (No 2)[2002] VSCA 21; (2002) 128 A Crim R 479 per Winneke P at 491

[2] [1988] HCA 39; (1988) 165 CLR 87

[3] At 93

[4] At 94

[5] [1961] HCA 22; (1961) 104 CLR 1

[6] At 103-4

[7] At 104

[8] (1992) 26 NSWLR 450 at 461

[9] (1992) 27 NSWLR 153

[10] At 191

[11] [1998] HCA 75; (1998) 197 CLR 316 at 342 (emphasis in original)

[12] [1972] VicRp 63; [1972] VR 560 at 560.

[13] (1990) 48 A Crim R 49

[14] At 66

[15] The Commonwealth Criminal Code A Guide for Practitioners, March 2002, p. 261

[16] At p.99.

[17] (1987) 11 NSWLR 318 at 320-321.

[18] 13th Ed (1982) at 110.

[19] [1933] VicLawRp 7; [1933] VLR 59 at 67

[20] [1985] HCA 29; (1985) 156 CLR 473 at 493

[21] See National Coal Board v Gamble [1959]1 QB 11, (1958) 42 Cr App R 240; Thambiah v The Queen [1966] AC 37

[22] At 46