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[2011] VSCA 336
Court of Appeal (Vic)
2011-11-07
Nettle JA, Neave JA
Original judgment source is linked above.
The Queen v Kim Man Freeman Tsang (Unreported, County Court of Victoria, 18 December 2009, Judge Jenkins)
CRIMINAL LAW - Appeal against conviction and sentence - Importing commercial quantities of border controlled drugs - s 307.1 of the Criminal Code 1995 (Cth) - Conspiracy - Admissibility of evidence - Hearsay - Statements made by a third person co-accused in the absence of the accused - Whether trial judge erred in ruling that intercepted telephone calls were admissible - Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 and Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 considered
CRIMINAL LAW - Appeal - Jury directions - Whether substantial miscarriage of justice occurred - Whether judge erred in failing to provide directions on the applicant's use of an interpreter - Whether judge erred in not advising the jury to ignore the prosecutor's remark that the applicant was 'hiding behind an interpreter' - Appeal dismissed
CRIMINAL LAW - Sentence - Assessment of applicant's role in offending - Parity - Whether sentence manifestly disparate to sentence of co-accused - Totality - Whether sentencing judge erred in failing to take into account period of imprisonment served in Canada - Whether sentencing judge erred in finding that there were no relevant mitigating factors - Appeal allowed - Applicant re-sentenced
1 The applicant, Kim Man Freeman Tsang, was found guilty by a County Court jury of one count of importing a commercial quantity of 3,4methylenedioxymethamphetamine ('MDMA'), contrary to sub-section 307.1(1) of the Criminal Code 1995 (Cth) (count 1); and one count of attempting to traffic a commercial quantity of MDMA contrary to sub-sections 11.1(1) and 302.2(1) of the Criminal Code 1995 (Cth) (count 2). The applicant was tried at the same time as Vincent Sze Fai Chan ('Chan') who was charged under count 3 with aiding and abetting, counselling or procuring the applicant to commit the offence covered by count 2. Chan was acquitted of that offence.
2 After hearing a plea in mitigation of penalty, the learned trial judge sentenced the applicant to imprisonment for life on both counts and ordered that the sentences be served concurrently. A non-parole period of 27 years was fixed. The applicant now appeals against both conviction and sentence imposed on him.
3 Count 1 (the importation count) occurred between 1 May 2006 and 8 June 2006, when around 1.29 million tablets containing MDMA were allegedly imported into Australia by the applicant. The total pure weight of the MDMA in the imported tablets was 74.1 kg, with an estimated retail value of between $38.4 million and over $90.5 million.[1]
4 The Crown case was that the applicant and a business acquaintance, Sum Chak Ho ('Ho') arranged to import the drugs hidden in containers of computer ink. The Crown relied on circumstantial evidence to prove that the applicant was aware that the computer ink contained drugs, or was at least aware that there was a significant risk that the drugs were being imported in the consignment. The applicant's evidence was that he had believed that the container contained hidden computer parts. He said that he had been approached by Ho about setting up a computer business in Australia, and had agreed to assist Ho in importing computer parts without paying duty.
5 Count 2 (the trafficking count) occurred between 8 June and 30 June 2006. The Crown alleged that the applicant was involved in arranging customs clearance for the shipping container, organising the transportation and unloading of the consignment at Storage King Monash in Melbourne, and then its transportation to Sydney, where it was stored at Storage King Blacktown until most of the boxes were picked up by accomplices. The applicant was allegedly assisted by Chan in doing so. Ramzan Ahmad was engaged to unpack the boxes from the shipping container at the storage unit in Melbourne and re-pack the boxes for transportation to Sydney. It was accepted that he was unaware that the boxes contained drugs.
6 When the goods reached Australia, the consignment was intercepted by the Australian Federal Police, and the tablets were seized and replaced with an inert substance. Three males were arrested in New South Wales after they had taken possession of boxes from the consignment. They were later identified as Xiao Yuan Zeng ('Zeng'), Johnson Au ('Au') and Minh Cheun ('Cheun'). Au and Cheun pleaded guilty to one count of attempting to possess a commercial quantity of MDMA in separate proceedings. Au was sentenced to 14 and a half years' imprisonment with a non-parole period of 9 years and Cheun received a sentence of 17 and a half years' imprisonment with a non-parole period of 11 years. Zeng was convicted after a jury trial and sentenced to 10 years' imprisonment with a nonparole period of six years. He had been involved in the enterprise for less than a day.
7 The Crown relied on the movements of Tsang, Ho and Chan and an array of circumstantial evidence in support of its case against Tsang. That evidence included four telephone calls between Chan and Ho, to which we refer below.
8 Ground 1 alleges that the trial judge erred in ruling that four lawfully intercepted telephone conversations between Ho and Chan, which occurred in the absence of the applicant, were admissible in evidence against him.[2] In the alternative, ground 2 claims that the judge erred in her directions to the jury concerning the use of these telephone conversations.
9 At the trial, defence counsel submitted that the four calls were inadmissible against the applicant in support of either count. During discussion prior to the judge's ruling, he said that his client:
would plead guilty to importing a container full of - that we believe to be - had smuggled computer parts in it, if I could put it in those terms. So yes, I concede that there is reasonable evidence of participation. It would be a nonsense if I didn't. So I don't require my friend to do that exercise.
10 Obviously defence counsel did not concede that Tsang was aware of the drugs in the consignment.
11 The Crown submitted that some parts of the calls were admissible in support of count 1, because they were original evidence supporting an inference that Tsang knew that the boxes contained drugs, whilst other parts of the calls were admissible in support of count 2, under the coconspirators rule (to which we refer below).[3]
12 The first telephone call which was said to have been wrongly admitted in evidence occurred on 19 June at 17:44, that is after the drugs had landed in Australia. Tsang was not present during the conversation. Its contents were as follows:
Chan: 'Hello.'
Ho: 'Hello, Ah Fai? Charlie will call you in a couple of days, he has gone to Macau with Annie. I will see how it goes. The things are OK, no problem.'
Chan: 'All finished?'
Ho: 'Yes finished.'
Chan: 'Got all the money?'
Ho: 'For money, it will be within these two days.'
Chan: 'OK, bye.'
Ho: 'OK.'
13 It was not contested that Tsang was known as 'Charlie'.
14 The Crown conceded that this call was not admissible in support of count 1 but submitted that it was hearsay evidence admissible under the co-conspirators rule in support of count 2. Her Honour accepted that submission and held that the first call was admissible only in support of count 2.
15 The second telephone call occurred about 45 minutes later on the same day. It contents were as follows:
Chan: Hello.
Ho: Hello. Ah Fai, I want to know how much a box of Tong Chai [phonetically, and literally it means candies] costs in Australia.
Chan: I can't hear.
Ho: Tong Chai. Tong Chai.
Chan: What?
Ho: Tong Chai.
Chan: Oh.
Ho: How much is it per tablet?
Chan: One tablet, if buy it individually, it's 30.
Ho: OK. Australian dollars?
Chan: Yes.
Ho: I see.
Chan: If buy in large numbers it can be cheaper, maybe 10 to 20 dollars.
Ho: Are you coming to Hong Kong or not?
Chan: Most probably I won't. What's the matter?
Ho: No, just ask. If you come, then I'll wait for you and go to play together.
Chan: No money.
Ho: He should - Charlie will make arrangements, I think.
Chan: No need to see. [not sure].
Ho: It should be OK. I think he will make arrangements.
Chan: OK.
Ho: OK. He will call you a couple of days later, then see how it goes. There shouldn't be any problem.
Chan: OK.
16 The Crown case was that it could be inferred that the reference to 'candies' was a reference to ecstasy tablets. Other evidence was led to the effect that the prices of tablets varied according to the quantity purchased.
17 The judge held that the first part of this call (that is the part up to the statement that if 'candies' are purchased in large numbers the price will be cheaper) was admissible in support of both count 1 and count 2 'as original evidence showing the nature of the relationship, and the common purpose between Tsang, Chan and Ho being a common purpose relating to an illegal consignment of drugs.'[4] In relation to the importation count, it was directly relevant to the applicant's knowledge of the contents of the consignment.
18 Her Honour held that the second part of the call (that is the part relating to Charlie making arrangements to pay), was admissible in support of count 2 (trafficking) only, because it could provide the basis for an inference that the money to be paid was in return for the trafficked drugs.
19 The third call occurred on 20 June. It was as follows:
Chan: 'Hello.'
Female 1: (Maybe talking to someone on her side) 'Come over.'
Chan: 'Hello.'
Female 1: 'Hello, is it Ah Fai.'
Chan: 'Yes, can't hear.'
Female 1: 'Ah Fai, can you hear, I am with Alice -[not sure] now -
Chan: 'What's up?'
[Possibly another female F2 got to phone and spoke to Ah Fai.]
Female 2: 'Ah Fai, do you want to find Alice/Eric [not sure] We are all very drunk.'
Chan: 'That's great fun, then.'
Female 2: 'Yes, I'm thinking of coming over to see you next month, but - Ah Fai...'
Chan: 'That's good.'
Female 2: 'Where are you now?'
Chan: 'I'm at a Karaoke.'
Female 2: 'Are you at the Karaoke in Melbourne?'
Chan: 'Yes.'
Female 2: 'OK, Alice said she would play with your "chai" [literally meaning sons...reference to subordinates or followers]'
Chan: 'Yes.'
[And possibly female 2 turns to talk to Alice.]
Female 2: 'He said yes.'
[And then another female, F3 voice says yes.]
Female 2: 'Just wait.'
[And possibly F3 takes over the phone.]
Female 3: 'Fai. We are very dry' [meaning bored]...[can't hear].
Chan: 'It doesn't matter, the most important thing is you are happy.'
Female 3: 'If I have no chai it's very boring. All the chai are no good [can mean boyfriend or subordinates in this context]. Any...[can't hear].
Chan: 'No.'
Female 3: 'Just one moment.'
And then a male Male 1 gets the phone.
Ho: 'Hello, Ah Fai. I will go to Canada first then Charlie will call you within a couple of days.'
Chan: 'OK.'
Ho: 'Did he tell you how to spend [may mean launder as well] - money?'
Chan: 'I can't hear.'
Ho: 'Did Charlie tell you to spend [meaning launder as well] money?'
Chan: 'Yes, yes.' And
Ho: 'OK, OK.'
Chan: ...[Can't hear]...'is better.'
Ho: 'It doesn't matter for Australia I will come back first.'
Chan: 'OK.'
20 The Crown case was that the call referred to laundering rather than spending money and it was to be read in the context of the drugs having already been delivered to Sydney, but not collected. The judge ruled that this call was admissible in support of count 2 only, again because it was evidence relating to the payment of money in return for trafficking in the drugs.
21 The fourth call occurred on 24 June. It was as follows:
Chan: 'Hello.'
Ho: 'Hello.'
Chan: 'What's up?'
Ho: 'I want to ask whether you hear any special news in Sydney.'
Chan: 'I haven't noticed, I never pay attention to the news.'
Ho: 'I see, anyway pay attention to see whether any special things happen. If there isn't any it should be OK.'
Chan: 'The most important thing is whether you have received money or not.'
Ho: 'I'm waiting for him, he is in Hong Kong.'
Chan: 'You haven't received money, have you?'
Ho: 'Not yet, he did ask you to come.'
Chan: 'No money, I really got no money recently.'
Ho: 'I see, did you lose much in casino?'
Chan: 'I lost some recently.'
Ho: 'I see. It will be soon.'
Chan: 'Wait until you finish first and get the money first.'
Ho: 'OK.'
Chan: 'OK.'
22 The Crown case was that the first part of the call was a query about whether there was police surveillance of the Storage King facility at Blacktown. Reliance was placed on the evidence of Mr Greg Capon, a federal policeman, that it was common practice when people were waiting to collect drugs from the place where they were stored to wait to see whether there was any police involvement. Alternatively, the first part of the call could relate to whether there had been newspaper reports about seizure of drugs. This was said to 'tie up' with a conversation between the applicant and Chan nine hours later in which Tsang asked Chan whether there was 'anything on your side' in circumstances where no arrests had yet been made.
23 It was also submitted that it could be inferred that the person said to be in Hong Kong was Charlie. In support of that inference, the Crown relied on Tsang's own evidence that he was travelling between Macau and Hong Kong at this time and on other phone conversations including a conversation between Tsang and Chan on 15 June in which Tsang said he had come to Hong Kong.
24 Her Honour ruled that the first part of this call (that is up to Ho's instruction to pay attention to 'special things' happening) was admissible in support of both counts 1 and 2, whilst the second part, relating to the receipt of money, was held to be admissible only in relation to count 2.
25 The judge gave the jury written instructions telling them the purposes for which each call or part of the call could be used and referring to the Crown and defence case about the meaning of each call. She gave the same instructions in her oral charge.
26 Counsel for the applicant submitted that there was insufficient evidence of an agreement between Ho, Tsang and Chan to import drugs, to allow admission of the first part of calls two and four as direct evidence in support of count 1 and in particular of the applicant's intention to import MDMA. The central issue in the trial was whether Tsang was aware of the presence of concealed drugs. Although his counsel had conceded that he was involved in a common purpose to evade tax by importing concealed computer parts, neither the telephone calls, nor the other circumstantial evidence on which the Crown relied could yield an inference that the men had a common purpose to import drugs.
27 Further, counsel for the applicant submitted that because Chan was not charged with importation, her Honour erred in relying on the existence of a common purpose between the applicant and both Ho and Chan to permit the admission of part of the calls as direct evidence of count 1. At the hearing, counsel conceded that he could not rely on the fact that the importation offence was completed before the calls were made, as the basis for arguing that it was not admissible as direct evidence in support of count 1 or to establish preconcert.
28 In relation to the parts of calls admitted as evidence in support of count 2, the applicant submitted that they were inadmissible as direct evidence from which an inference could be drawn that the applicant was involved in an attempt to traffic in drugs. It was argued that the statements relating to 'arrangements' and 'payments' to be made by Charlie were, in effect, simply hearsay assertions that implicated Charlie in drug trafficking. The exception to the hearsay rule which makes evidence of acts done or statements made by one conspirator admissible against all the other participants in the conspiracy, did not apply because it required a finding by the judge that there was reasonable evidence of a conspiracy to traffic in MDMA. There was no evidence justifying such a conclusion. Ho could not be located, Tsang had denied knowledge of the concealed drugs in the consignment and there was no independent evidence that he knew of their presence.
29 Under ground 2, the applicant contended that a miscarriage of justice had arisen because of two deficiencies in her Honour's jury directions relating to the phone calls. First, even if the calls were admissible, the judge should have warned the jury against the dangers of relying on the evidence of statements made by Ho and Chan in the absence of the applicant, in circumstances where neither of them could be cross-examined.[5] This was the case even though Tsang was crossexamined on the calls and her Honour had referred to his explanations of the reasons that references were made to him in the calls. The need to give such a direction was reinforced by the complexity of her Honour's directions, which required the jury to exclude consideration of those parts of calls two and four which were not admissible in support of count 1. Counsel submitted that the jury was likely to have difficulty in understanding and following these directions.
30 Secondly, it was submitted that the applicant's trial was unfair because of remarks made by the prosecutor in his closing address and her Honour's failure to give directions to overcome the effect of those remarks. In his closing address, the prosecutor said that:
I'll go to those calls in greater detail and Her Honour, the learned trial judge, will give you very specific and detailed directions in relation to these calls. Yesterday we were discussing some very complex rules regarding hearsay and as a result of those discussions Her Honour's going to direct you as to what parts of these conversations between Ho and Chan are admissible in relation to the charges, the trials against Mr Tsang. It might appear strange that we're doing this in this particular way but it's really as a result of these very complicated rules on hearsay.
Now, this is where the complexities arise in relation to the hearsay rules that Her Honour, the learned trial judge, will direct you about. Those calls and those parts of those calls where there's references by what Charlie, being Mr Tsang, is supposed to have said or done. That is only applicable to Mr Tsang's Count 2. So it's only applicable in relation to the trafficking charges, attempted trafficking charge, against Mr Tsang and it's also relevant against Mr Chan because he's a participant in that conversation between Ho and himself, but Mr Tsang is not. But again, I don't want to explain all of this but those conversations are only admissible in the trial against Mr Tsang in relation to Count 2; the attempted trafficking.
---
Now, this is where the rules gets a bit schizophrenic. The first part of that conversation about whether there any special news, that's admissible in relation to all charges against each of the accused. It's the - I'll come to the latter part of the conversation. It's the first bit between Ho and Chan.
31 Her Honour referred to this matter in the following terms:
You heard the prosecutor refer to a legal ruling which I had made in relation to this, following submissions made by counsel in your absence.
The admissibility of evidence in this context is governed by rules of evidence, and you will be relieved to hear I will not be troubling you, or even boring you, about those rules.
These are matters of law, and you should simply accept and apply what I say in this regard.
The effect of my ruling and the application of these rules of evidence is that some parts of these conversations are admissible against Tsang in relation to both counts, 1 and 2, and some parts of the conversations are admissible against him in relation to Count 2 only.
32 Counsel submitted that the prosecution had improperly referred to legal argument on the admissibility of the calls and that her Honour had not directed the jury that this was not a matter for them. Her failure to do so had resulted in an unfair trial, because it might have led the jury to conclude that evidence providing further support to the Crown case had been excluded.
33 Counsel further submitted this was an exceptional situation where the appeal should be allowed despite defence counsel's failure to ask her Honour to draw the jury's attention to the inability of the applicant to cross-examine Ho and Chan and to instruct the jury to ignore counsel's reference to the ruling on admissibility.
34 We will deal first with ground 1, which alleges that her Honour should not have held that the four telephone calls were admissible in evidence against the applicant.
35 There are three bases under which evidence of statements made by a third person coaccused in the absence of the accused may be admissible. First, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case.
36 The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person's guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred.[6] As Dixon CJ, Fullagar and Windeyer JJ acknowledged in Tripodi v The Queen:[7]
It is customary at criminal trials to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions or the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts.[8]
37 Secondly, such statements may be admitted as original evidence to support a Crown case that the accused entered into an agreement with others to do the unlawful act with which he or she is charged. Again such evidence is not admissible as an exception to the hearsay rule, but as original evidence. As is the case where no agreement to do an unlawful act is alleged, it is unnecessary to prove that the statements were made in furtherance of the conspiracy.[9]
38 Thirdly, such statements may be admitted under the co-conspirators' principle, which permits their admission as evidence of truth of the statements made in the absence of the accused, that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person's participation in conspiracy to do an unlawful act. The principle is explained by Mason CJ, Wilson, Deane, Dawson and Toohey JJ in Ahern v The Queen:[10]
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 may be 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.
That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi_._[11] Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.[12]
39 The circumstances in which the evidence may be admitted to prove the accused's involvement in the conspiracy were described by the High Court as follows:
Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a coconspirator will only be admissible to prove the participation of the accused in the conspiracy where it was alleged that there was a combination of the type alleged, that the acts were done or words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was a participant. The words 'reasonable evidence' have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis on which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged.[13]
40 The trial judge must find that there is reasonable evidence (other than the evidence sought to be admitted) of the existence of the conspiracy and of the accused's participation in it, before the statements made in the absence of the accused by other conspirators in furtherance of the conspiracy can be left to the jury as evidence of these matters.[14]
41 The co-conspirator's principle is not limited to cases in which the alleged offence is conspiracy, but also covers substantive offences which have allegedly been committed by persons acting in concert. Tripodi[15] is an example. Tripodi appealed against his conviction for larceny of two cars. An accomplice who had pleaded guilty as an accessory after the fact gave evidence that the applicant was one of a group of men who acted in concert in stealing the cars. One of the issues considered by the High Court was whether evidence of a motor mechanic and a painter about conversations in which they had been given instructions to alter the cars after they were stolen, was admissible against the applicant. These conversations occurred either in the absence of the applicant or out of his hearing.
42 It was unsuccessfully argued for the applicant that the principles permitting admission of evidence of acts or conversations of parties to a conspiracy were inapplicable because the applicant had been charged with the substantive crime of larceny and not with conspiracy. That argument failed. The High Court[16] said that:
when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. In The King and The AttorneyGeneral of the Commonwealth v. Associated Northern Collieries (the CoalVend Case)[17] Isaacs J said of evidence of the acts of individuals done in furtherance of a preconcerted common design in cases of conspiracy what is doubly true when such evidence is tendered in proof of a charge of a substantive crime committed by several acting in preconcert: 'It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an) offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both.'[18] It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination of preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.[19] From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.[20]
43 In this passage, their Honours acknowledged that in some cases it will be unnecessary to rely on the co-conspirators' rule because there is another basis for the admission of the evidence. We take that to be a reference to the first two bases for admission which we have described above: that is, as original evidence of the elements of the offence with which the accused has been charged, or as original evidence of the existence of an agreement to commit a crime, rather than as hearsay evidence to prove the accused person's participation in the agreement. Their Honours then made the comments set out above at [36] and held that the things said and done when the prisoner was not present or within earshot were for the most part either relevant or admissible as part of the res gestae or as relevant evidence.
44 The principle permitting admission of original evidence comprising acts or statements made outside the presence of the accused was applied by this Court in R v Mbonu.[21] In that case, the applicant was convicted of the offence of being knowingly concerned in the importation of not less than a traffickable quantity of a drug. Evidence was admitted that a man named Mnguni had met a man named Uche in Indonesia, where they had agreed to import cocaine into Australia. Application for leave to appeal was sought on the basis that the evidence was inadmissible against Mbonu because it concerned conversations occurring in Indonesia between Uche and Mnguni.
45 There was evidence that after Mnguni had agreed to carry cocaine to Australia, Uche phoned Mbonu in Mnguni's presence and later faxed a copy of Mnguni's passport to someone in Australia. Mnguni recorded the applicant's phone numbers and the fax number (which was later found to be Mbonu's number) in his address book. Mnguni was arrested at the airport, where he agreed to co-operate with the police and a harmless substance was substituted for the cocaine. He went to his hotel and contacted Mbonu. Mbonu agreed to meet him and went to Mnguni's hotel, where he took possession of a bag handed to him by Mnguni. Shortly afterwards the men were arrested. The defence case was that Mbonu was unaware that Mnguni was importing cocaine and had simply been asked by friends to look after Mnguni when he came to attend the Olympic Games.
46 Vincent JA (Buchanan JA and Cummins AJA agreeing) held that the evidence of conversations in Indonesia between Mnguni and Uche was admissible as direct evidence that the applicant was knowingly concerned in the importation. He said that:
The jury would have been entitled on the totality of the evidence to find that Mnguni, Uche and the applicant were all linked in the importation. The inference would arise from the combined effect of a number of pieces of direct relevant and admissible evidence. True it is that some of that evidence involves the activities of other individuals in the absence of the applicant. However, it is common enough for the physical and verbal interactions between third parties to be admitted as constituting facts relevant to the determination of facts in issue in the case of a particular accused. They may, in conjunction with other evidence, provide a strong foundation for the inference of concerted activity to be drawn and may, in some situations and, without more, identify the participants, including the accused concerned. As Young CJ stated in R v Minuzzo and Williams:[22]
If one finds two persons doing a number of acts independently and it is regarded as too coincidental that the two persons should have acted in such a way unless there were an agreement between them to do so, it would be an affront to common sense to say that the agreement could not be inferred even though there was no evidence that either was present when the acts of the other were done ... The same idea is expressed by Isaacs J in R v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387 (the Coal Vend Case), at p 400:
"Two things must be carefully kept distinct, viz, the fact of combination, and acts done in pursuance of the combination. There is a tendency to confuse the two, because in many instances acts of individual defendants may be regarded as evidence of the first as well as of the second.
...
"Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge."[23] (Emphasis added)
47 His Honour said that the case did not involve the issue of whether evidence of separate acts or statements made by co-offenders could be admitted under the coconspirators rule:
In the present case, the admissible evidence adduced to establish the existence of an agreement to import the cocaine into Australia which included, it must be remembered, evidence of the applicant's own conduct, provided sufficient foundation for the identification by the jury of the applicant as one of the persons involved in the importation. The particular question upon which the High Court focused in Ahern; that is, what happens when the evidence of the separate acts of the alleged co-offenders fails to establish the participation of the individual charged, simply did not arise.
Approached in this fashion, the conclusion that the applicant was knowingly involved in the importation could be properly reached without any need to address the particular issues relating to the identification of an individual as one of two or more alleged co-conspirators considered by the High Court in Ahern, as asserted by counsel appearing for the applicant before us. No question of the admissibility of what would be effectively hearsay evidence with respect to the applicant in the form of acts or declarations, to which ground 1 was directed, would arise at this level. As I have indicated, the case against the applicant was extremely strong and quite straightforward. Unfortunately his Honour did not recognise that that was the position and proceeded on the basis that he had to address the Ahern question.[24]
48 Based on those principles, we reject the applicant's submission that the first part of call 2 and of call 4 should not have been admitted as evidence in support of the Crown case against the applicant on count 1, and in particular as evidence of his knowledge that the consignment contained drugs.
49 The discussion between Ho and Chan about 'the price of candies' in call 2 and about whether 'special things' were happening in Sydney was not sought to be admitted as evidence of the price of ecstasy tablets or about whether, in fact there was any surveillance of the Storage Unit in Sydney. Rather, it was circumstantial evidence from which, combined with the evidence about Tsang's own activities, to which we refer below, an inference could be drawn that he was aware that the consignment which was imported contained concealed drugs.
50 In Mbonu, there was particularly powerful evidence of Mbonu's knowledge of the cocaine importation, including the telephone call and faxes between Uche and Mbonu while Uche was in Indonesia and Mbonu's own behaviour after Mnguni arrived in Australia. Considered as a whole, the evidence of Tsang's conduct combined with the evidence of the relevant portions of the phone calls, also provided a strong foundation for an inference that Tsang was aware of the contents of the consignment. This is apparent both from the events which occurred prior to and following the importation and from the applicant's attempts to conceal his identity while the importation was underway after the drugs were loaded in Canada.
51 In his evidence in chief, the applicant said that he and Ho were introduced by a friend in Toronto, in March 2006 and discussed the smuggling of computer parts. He gave Ho a passport in the name of Ma Yu Wen Joseph, for Ho to set up a company in Australia. Ho visited Australia in April and set up a company using that identity. The passenger card Ho completed on his arrival on 17 April 2006 provided a mobile phone number held by the co-accused Chan.
52 Ho and Tsang had several meetings in Hong Kong in early May, prior to the shipment being consigned to Melbourne from Vancouver, British Columbia. The consignee of the shipment was 'Melbourne City Computer' 242 Victoria St Brunswick. There was no such company at this address. The shipping documents referred to 'Dick' as the contact person and gave a mobile telephone number which was later found to have been used along with a different number in the same handset. In his evidence in chief, Tsang denied that he had had any dealings with the customs agents DFDS, in Richmond British Columbia.
53 Ho and Tsang arrived in Australia from Hong Kong on 18 May 2006. They stayed in the same Melbourne hotel, where Tsang was introduced to Chan. On 23 May 2006, Ho, Tsang and Chan flew to Sydney, and stayed in the same hotel. This was shortly after the applicant had made enquiries of DFDS regarding what charges would be incurred for delivery of the consignment to Sydney instead of Melbourne.
54 The men returned to Melbourne on 23 May 2006, where Ho and Tsang again stayed in the same hotel.
55 After they returned to Melbourne, Ho leased a silver Hyundai using Chan's credit card. The co-driver was named as Tsang Kim. On 19 May 2006, a Yahoo email address for Melbourne City Computer was created at an internet café. Tsang said that this was done by Ho. While the men were in Melbourne, several SIM cards were purchased from traders in Little Bourke St and registered under various names. Tsang admitted to having two mobile phones.
56 On about 19 May 2006, Erik Pederson Asklor who worked at DFDS in Melbourne received a phone call from a man describing himself as 'Dick' relating to the clearing of the consignment through customs and its delivery. Dick told him he was in Hong Kong. Between 19 and 23 May, there were emails from Asklor to 'Dick' using the address he had been given at melbournecitycomputer2000@yahoo.com. On 22 May, Asklor met a man who called himself 'Dick Poon' and said he was a manager from Melbourne City Computer at a DFDS office at Tullamarine. Tsang admitted that he had used this name at the meeting. The customs clearance authority given to Asklor by 'Dick' showed that the goods were to be sent to Melbourne City Computer at the Brunswick address. At that meeting, 'Dick Poon' discussed with Asklor the option of sending the consignment to Sydney. On the following day Asklor received a Melbourne City Computers email from 'McLean Sharpe' requesting the arrangement of and a quote for shipment from Melbourne to Sydney. Tsang said this email was sent by Ho in his presence and that it was Ho's idea to move the shipment from Melbourne to Sydney.
57 Tsang, together with Ho and Chan, travelled from Melbourne to Sydney, on 23 May, shortly after 'Dick' had enquired of DFDS what charges would be incurred for delivery of the consignment to Sydney instead of Melbourne. Tsang denied meeting Au, Cheun and Zheng in Sydney or visiting Storage King at Blacktown.
58 On 28 May 2006, Ho and Tsang went to Storage King Monash where Tsang called himself Joseph and said he was from 'Melbourne City Computer 200 Victoria St Brunswick.' The form he filled in included an ABN for Melbourne City Computer. He signed the lease in the name of Dick Ma and produced a passport in the name of 'Joseph Yiu Wing Ma.' He said he used the name Dick because Ho told him to do so. He supplied two mobile phone numbers.
59 On 1 June 2006, a man who called himself 'Dick Poon' went to the DFDS office and paid $7,754 in cash. Tsang admitted that it was he who paid this money. Asklor said it was most unusual for such a large amount to be paid in cash. Tsang admitted that he had paid this money, but said he was accompanied by Ho who waited outside. Ho left Melbourne on 1 June 2006 giving Tsang $5,000 cash to use for expenses.
60 Between 5 and 8 June 2006, Tsang made arrangements to engage Ramzan Ahmad to unload the container after it had been delivered to Storage King Monash. The applicant introduced himself to Ahmad as 'Joseph'.
61 When there was a delay in the goods being delivered on 8 June, 'Joseph' told Ahmad he would drive to the docks to find out the problem. He later called Ahmad on a number of occasions to tell him the container would be arriving and to check it was being unpacked. Mr Horigan, another DFDS employee, contacted 'Dick,' four or five times that day to advise on the progress of unloading the container and its delivery to Storage King Monash. 'Dick' had told him it was urgent for the container to be delivered. The goods were unloaded in the late afternoon and shortly afterwards 'Joseph' met Ahmad at McDonalds and asked him to arrange their transportation to Sydney.
62 At around 6.00 pm that day, an Australian Federal Policeman observed a Silver Hyundai with the same number as the car hired by Ho entering the Storage King premises driving slowly along the driveway and checking cars. At around 9.30 pm a Silver Hyundai was observed parking near Storage King. The occupant of the car got out of it and walked around nearby roads. Tsang admitted to going back to Storage King but said it was because he had seen a car following him earlier and he thought that customs might be following him.
63 On 9 June 2006, Tsang called Storage King using the name 'Joseph' from Melbourne City Computer and enquired about the storage unit. He departed Australia on a flight to Hong Kong on 9 June 2006. He had initially been booked to return on 8 June but said he had stayed in Melbourne to make sure the container was unloaded.
64 On 14 June 2006, Ahmad went to Storage King Monash to oversee the loading of the consignment onto a truck that was to take the goods to Sydney. The applicant made several telephone calls to Storage King Monash, from overseas, asking staff to keep an eye on Ahmad. The applicant also made calls to Ahmad to check on the progress of the work during the loading of the consignment on 15 June 2006.
65 On 15 June 2006, there were three telephone calls between Tsang and Chan which Tsang admitted making. They related to the arrangements for re-loading the truck to take the consignment to Sydney. In a call made at 10:30 am, one male told the other to 'be careful' and in the call made at 10:35 am, a man (presumably Tsang) asked Chan to tell him the registration number of the truck and asked him if there was anyone following him. Later in the day Tsang, who said he was in Hong Kong at the time, had a conversation with Chan in which he was told that the loading was finished but the truck had not yet arrived in Sydney.
66 Although the consignment was delivered to Storage King Blacktown on 16 June 2006, there was no attempt to access the consignment until 28 June 2006. There was evidence that this was consistent with persons interested in the consignment exercising caution and waiting to see if there was police involvement or contact with the consignment.
67 On 28 June 2006, Cheun and Huang collected the boxes from Storage King Blacktown and the men drove to their destination via an indirect route, where they were arrested.
68 On 29 June 2006, after arrests of persons in Sydney who had taken
possession of the boxes from the consignment, the applicant telephoned Chan and asked 'Is there anything on your side?'. The applicant then told Chan what to do 'if anything happens'.
69 A strong inference that the applicant was aware that the consignment contained drugs arises from:
• his use of different names in dealing with the customs agents, DFDS (Dick and Dick Poon), Storage King Monash, (Dick Ma and Joseph Ma) and Ramzan Ahmad ( Joseph);
• his use of at least six different pre-paid mobile telephone numbers, which were all subscribed in different names (other than his own) and were registered to false addresses;
• the fact that he purported to be a representative of Melbourne City Computer in his dealings with DFDS and Storage King Monash;
• his frequent telephone calls to Ahmad from overseas while the goods were being unloaded in Melbourne and his calls to Storage King Monash to check on Ahmad. The applicant also made calls to Ahmad to check on the progress of the work during the loading of the consignment on 15 June 2006;
• the fact that the applicant made an arrangement with Ahmad almost immediately after the goods were unloaded in Melbourne for them to be transported to Sydney;
• the applicant's two visits to the vicinity of Storage King Monash on the evening of 8 June 2006 after the goods were unloaded;
• the applicant's calls to Chan on 15 June 2006 to monitor the loading of the consignment;
• the applicant's calls to Chan on 29 June after the Sydney offenders were arrested; and
• the applicant's use of cash when making arrangements in relation to the consignment.
70 Because the first part of call 2 and call 4 were admissible as circumstantial evidence of Tsang's knowledge that there were drugs in the consignment, it was unnecessary for the judge to be satisfied that there was reasonable evidence of an agreement between Tsang, Ho and Chan to commit the substantive offence of importing a commercial quantity of MDMA. The applicant's submission disregards the fact that the phone calls were admissible as circumstantial evidence of Tsang's knowledge that the computer ink he had agreed to import contained concealed drugs.
71 Further, even if the Crown case was based on an agreement between Tsang and Ho to import drugs and it was therefore necessary for the judge to find reasonable evidence of the existence of an agreement involving Tsang to import drugs, for the evidence of these phone calls to be admissible, the failure to charge Chan as a party to the importation did not preclude the admission of this circumstantial evidence as evidence of the agreement. The incriminating statements in these calls which the Crown relied upon were made by Ho, an unindicted party to the agreement, rather than by Chan. But the fact that Chan was the other party to the call did not deprive the statements of their character as statements from which the inference could be drawn that Ho and Tsang had agreed to import drugs.[25] For these reasons, her Honour did not err in holding that these portions of the second and fourth phone call were admissible as 'original evidence' from which it could be inferred that Tsang was aware of the contents of the consignment.
72 We now turn to the complaint relating to the admission of call 1, calls 2 and 3 and the second part of call 4, in support of count 2.
73 The conversation between Ho and Chan relating to the price of 'candies', the 'arrangements' to be made by Charlie and the payments to be made by Charlie to Chan, occurred after the consignment had cleared customs, been unloaded and stored in Melbourne, and transported and unloaded in Sydney. We consider that the part of the second phone call relating to the price of candies was admissible in support of count 2 for the same reason that it was admissible in support of count 1.
74 However, the statements by Ho that Charlie would make arrangements, and that Charlie would tell Chan how to 'spend' (or launder) the money were not simply circumstantial evidence from which it could be inferred that Tsang was aware of the contents of the consignment. Rather, they were hearsay assertions from which the Crown sought to have the jury infer that the applicant was knowingly involved in arranging the trafficking of the imported drug. It follows that the evidence could only be admitted under the co-conspirator's rule.
75 Before such evidence could be admitted, the judge had to be satisfied that there was reasonable evidence capable of supporting a finding by a jury of an agreement between Ho, Tsang and Chan of the kind alleged (that is, an agreement to traffic in the imported ecstasy), that the statements were made in furtherance of that common purpose and that the accused was a participant.
76 In R v Pektas, Vincent J (as he then was) said that the concept of reasonable evidence referred to 'evidence, independent of the acts and declarations of the alleged co-conspirators, which at a minimum is capable of supporting a finding that the accused was a participant in the unlawful enterprise'.[26] In R v Masters, the New South Wales Court of Criminal Appeal agreed with the view of the Full Court of this Court in R v Smith[27] that:
in determining whether there was reasonable evidence of the accused's participation in a conspiracy warranting the application against him of the 'co-conspirator' rule, it would not ordinarily be necessary for the trial judge to make an assessment of the truth or reliability of any evidence or to choose between conflicting pieces of evidence any more than he or she would have to do so when determining whether the accused had a case to answer.[28]
The discretion should not ordinarily be exercised to reject the application of the 'co-conspirator' rule simply because there may be some shortcomings in the evidence of the acts or statements of the co-conspirators, or because the accused against whom the rule is to be applied has not had the opportunity to cross-examine them or because the evidence of those acts and statements is uncorroborated. Those are all matters which would usually be made the subject of appropriate directions to the jury.[29]
78 The court also held that it is not always necessary for the trial judge to rule formally on the existence of reasonable evidence, as this will often be obvious.[30]
79 In our opinion, the learned trial judge correctly took the view that there was reasonable evidence of an agreement to traffic in ecstasy and of Tsang's knowing participation in that agreement. That evidence is set out above. The conversations between Ho and Chan were not simply a narrative description of a past offence, but were done in furtherance of an agreement to attempt to sell drugs and divide the proceeds.
80 Unless the applicant's submission that the co-conspirator's rule does not apply to an aider and abettor is accepted, these statements were therefore admissible to establish an element of the count 2 offence, that is Tsang's knowledge of the contents of the consignment.
81 In R v Lam,[31] it was submitted that the hearsay utterances of a principal offender were not admissible under the Tripodi principle against a person charged with aiding and abetting. It was further submitted that the Tripodi principle was inconsistent with the provisions of the Commonwealth Criminal Code, which does not contemplate liability on the basis that an accused has acted in concert with the principal offender. In this case, counsel did not specifically pursue the latter argument, which was rejected by Kellam J (as he then was) in his judgment in R v Lam.
82 After acknowledging the absence of authority on whether the coconspirator rule applied where the statement sought to be admitted against a cooffender was made by the principal offender, Kellam J held that there was no reason in principle to exclude its application. He said:
It is true that a consideration of the reported authorities reveals the application of the so called coconspirators 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.
However, that is not to say that such evidence as there may be of acting in combination, and even of preconcert 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[32]:
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.
The above observation was adopted with apparent approval by Mason J in Giorgianni v The Queen.[33] 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.[34] Thus a link in purpose between an aider and abetter and the principal offender is required. As said in Thambiar v The Queen[35]:
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
...
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[36] 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.
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.[37]
83 We note also that in R v Handlen,[38] Holmes JA in a considered obiter dictum said that 'the prosecutor was entitled to lead evidence of the acts and statements of all accused in furtherance of the common purpose [there the purpose of importation] on the Tripodi principle, whatever basis of criminal liability was advanced'.[39]
84 It may be observed that the facts in this case are the reverse of those in R v Lam. Here the Crown sought the admission in evidence against Tsang, of telephone calls between Ho and Chan, who was indicted as an aider and abettor to Tsang. For the reasons discussed above, it was probably unnecessary for the Crown to rely on Chan's involvement in these conversations because almost all of the statements about the role which Tsang would play were made by Ho, an unindicted coconspirator, rather than by Chan, the aider and abetter. The circumstantial evidence does not indicate that Ho's involvement in the conspiracy was limited to the importation.
85 However, even if these phone calls could only be admitted under the coconspirators' rule because of Chan's involvement, as well as that of Ho, the basis of the principle to which Kellam J referred in R v Lam provides a similar rationale for the admission of a statement made by a person charged with aiding and abetting the principal offender as evidence that the accused has committed the offence. The justification for the admission of the evidence in R v Lam was that the person charged as principal was linked in purpose with the person charged with aiding and abetting. The Crown alleged that Chan was linked in purpose with Tsang and Ho, when he went to Sydney with them and later oversaw the unloading and reloading of the goods at Storage King Monash.
86 We now turn to ground 2 which relates to her Honour's jury directions.
87 In Ahern, the High Court considered whether leaving it to the sentencing judge to decide whether there was reasonable independent evidence of a conspiracy might result in the jury improperly relying on the acts and declarations of coconspirators made when the accused was not present to find that the accused participated in the conspiracy. The Court considered that this danger could be overcome by an appropriate jury direction:
Any such danger may...be avoided by an appropriate direction from the trial judge. It will be proper for him to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that they should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow.[40]
88 In R v Dellapatrona and Duffield,[41] the New South Wales Court of Criminal Appeal[42] considered the question of whether a special warning had to be given to the jury about 'the inherent dangers in acting on the evidence of the acts and declarations of co-conspirators.' The Court concluded that the statement in Ahern did not require the judge to give the jury such a warning:
It proposes only a commonsense direction as to the weight which might be given to that evidence where it is appropriate that such a direction should be given. It is quite wrong to suggest that the jury should be warned that it is dangerous to convict upon such evidence. Such a warning may be appropriate in the particular case, but that would be because of the nature of the evidence in that particular case; it would not be because of the inherent dangers in such evidence as some new category of suspect evidence. The reference by the High Court to a direction pointing to the shortcomings in the evidence - such as, if it be the fact, the absence of any opportunity to crossexamine the co-conspirator and the absence of any corroboration - make it clear that they were not intending to formulate such a new category of evidence which is generally suspect.[43]
89 It was also argued in Dellapatrona and Duffield that the judge had erred in failing to draw the jury's attention to the fact that Duffield was unable to crossexamine his co-accused, who had given an unsworn statement, or to cross-examine another man, whose tape-recorded statements made in the absence of Duffield implicated Duffield. The Court rejected this ground on the basis that the inability to cross-examine the co-accused would have been evident to the jury and that the other man whose statements were recorded said very little of significance. (There was also corroboration of the evidence because each of the accused had told lies indicating a consciousness of guilt).[44]
90 In this case, the trial judge asked defence counsel if he would be asking for directions in the event that she held that the telephone calls were admissible. Defence counsel did not request such a direction and did not take exception to this aspect of the charge. The failure to seek a direction is 'a serious obstacle to the path of the applicant on appeal,'[45] although it is not inevitably fatal.
91 In our opinion, this ground fails. Although it would have been desirable for her Honour to draw the jury's attention to the fact that counsel was unable to crossexamine Ho or Chan, we do not consider that Tsang was significantly disadvantaged by her Honour's failure to make such a comment.
92 In his evidence, the applicant attributed most of the matters relied upon by the Crown as evidence of his knowledge that the consignment contained drugs, to the fact that he was acting on the instructions of Ho. It would have been evident to the jury that Ho could not be cross-examined. Almost all of the statements in the phone calls which suggested that Tsang was aware that the consignment contained drugs were made by Ho, rather than Chan. Because the conversations were intercepted, rather than described by a participant, there was no debate about their content, although the applicant's counsel made submissions about what they actually meant.
93 In her jury directions, her Honour took care to remind the jury of Tsang's explanations of the meaning of what was said in the telephone conversations between Ho and Chan. The case against Tsang based on his own actions was a strong one, in which these four telephone calls were likely to have played only a minor part in the jury's deliberations, compared with the other evidence described above. The judge gave the jury the usual instructions about the burden of proof and the need to be satisfied beyond reasonable doubt before they drew an inference from the evidence which they relied on as a link in the chain in their reasoning towards guilt. The fact that no exception was taken to this aspect of the charge suggests that defence counsel did not consider such a direction was required. In the circumstances, it was not necessary for the judge to comment on Tsang's inability to cross-examine Ho and Chan, in order to avoid a perceptible risk of miscarriage of justice.[46]
94 It is also necessary to deal with the complaint about the prosecutor's remarks and her Honour's failure to give directions to overcome the effect of those remarks. In our opinion, that aspect of ground 2 is not made out. The jury were aware, from the directions given to them by her Honour, that different parts of the calls were admissible for different purposes. It seems to us that the statements made by the prosecutor in his closing address, did little more than preface him telling the jury that they could not take account of the calls in their entirety in support of both charges.
95 It was perhaps unfortunate for the prosecutor to refer to the rules being 'a bit schizophrenic', but we do not consider that either that statement or reference to her ruling would have led the jury to speculate inappropriately about evidence which they had not heard. Her Honour's statement was simply an explanation as to the purposes for which parts of the telephone calls were admissible against Tsang. Her Honour specifically told the jury that the question of admissibility was a matter of law and that they were obliged to follow her directions. We therefore reject the applicant's submission that it 'created a perceptible risk that the jury would consider that the trial judge accepted the Crown case.'
(3) There has been a miscarriage of justice by reason of:
(a) the prosecutor's argument to the effect that the applicant had 'hidden behind an interpreter' in giving his evidence, and
(b) the failure of the trial judge to provide any directions on the applicant's use of an interpreter, including disabusing the jury of the prosecutor's argument referred to in (a).
97 The relevant passages in the prosecutor's closing address were as follows:
You shouldn't believe him, the Crown says, and you observed over a number of days his demeanour and behaviour in court.
He's hiding behind the interpreter, although on occasions you could tell he understood the questions I was asking. His generally evasive responses to questions, you should not believe him. Insofar as he posits or puts forward an innocent explanation for all this, you should reject it and rely on all the evidence the Crown relies on to show that he is conducting himself strangely and bizarrely in relation to the contents of the shipping container, evidence which you can come to the conclusion or infer that he knew that the contents of that shipping container held drugs.
...
Another reason you should reject [the applicant's] evidence, and that is just the way he gave evidence, prevaricating, dissembling, evasive, I don't need to go through the evidence he gave. I took three days in cross-examination, but you saw him, you've got the best seats in the house, you saw him over there, and you saw him squirm and hide behind his interpreter, you might think, and on occasions it was quite clear he understood the questions in English that I was asking him.
Sometimes he replied directly to the questions in English that I asked, replied directly to me in English, ...
98 The applicant's defence counsel said the following:
It was suggested during the course of the learned prosecutor's address to you that he was hiding behind the interpreter when he gave that evidence, hiding behind the interpreter. Yes, he can speak English, clearly, you've heard him on the telephone calls, he conversed with Pederson, he conversed with Cheun, he conversed clearly with other people while he was in Australia. No one is saying to you that he can't speak English, that would be ridiculous, because it's surprise that you heard those telephone calls and it's not surprise has said they spoke to him in English [sic]. But he used an interpreter.
Here we have a man who is a Canadian national who was born, you might well think, into a non-English speaking background, who is standing his trial in a foreign country on very serious charges, where proceedings are being conducted not in his native language. It's all very well to be able to order a meal or hold a limited discussion in a language that isn't your first language, you might think it's a heck of a different thing to stand a criminal trial.
99 In her jury charge, her Honour referred to both the prosecutor and defence counsel's submission and said that:
The prosecutor suggested to you that when Tsang gave evidence he prevaricated, was evasive and hid behind the interpreter when he clearly understood, sometimes replying directly in English. Much evidence is simply unbelievable and merely sought to deflect or blame upon Ho. In response, Mr Jackson for Tsang said that you will have to assess his evidence carefully and having done so, you should find he made full and frank admissions about his prior convictions and further offending and has provided a complete and reasonable explanation for his participation in the importation and trafficking of what he believed to be concealed computer parts. His prior offending did not involve drugs in any way.
100 The applicant contended that there was 'no fair foundation' for the submission made by the prosecutor that the applicant had 'hidden behind an interpreter' and that her Honour should have told the jury to ignore that comment. Although the applicant could speak English, it was his second language. The applicant had relied on an interpreter throughout the course of the trial and this had not been opposed by the prosecutor. During the trial, her Honour had observed that some witnesses had referred to Tsang's good English and had asked his counsel whether it might be possible for him to answer some questions without relying on an interpreter, but this course of action had been rejected by the applicant's counsel. Her Honour had also acknowledged the difference between speaking English in court and outside it. Further, the prosecutor had acknowledged the difficulties which had arisen in the interpretation of particular words and there were a number of examples of difficulties in communication.
101 Counsel for the Crown submitted that the prosecutor had cross-examined the applicant about his comprehension of English, including the fact that he was a resident of Canada and had spoken to staff at the customs agent and Storage King Monash in English. Having regard to that cross-examination, the prosecutor was entitled to draw the jury's attention to aspects of the applicant's demeanour, including his reliance on an interpreter, in his closing address. Further, no exception had been taken by defence counsel to her Honour's remarks on this issue.
Assessing any abuse of the use of an interpreter - is this a matter for the jury?
102 The first question is whether the Crown is permitted to make submissions as to whether the use of an interpreter is being abused or used for tactical advantage. In other words, is the assessment of the existence or extent of any abuse of the accused's use of an interpreter a matter for the jury? We accept that such assessment is a proper matter for the jury, subject to appropriate directions by the trial judge.
103 The issue must be seen and assessed in its proper context. The issue is not whether the accused was entitled to use an interpreter. An accused person whose first language is not English has a right to an interpreter paid for by the State. This is an important right and is critical to ensuring a fair trial.[47]
104 In the present case, several interpreters were used over the course of the trial and, as a perusal of the transcript bears out, nothing of substance was lost in translation. All of the evidence of the accused was given and there is no suggestion that the accused did not understand the questions or did not give the evidence he wanted to give. Rather, the issue is whether, accepting the accused's right to use an interpreter, the jury was entitled (in assessing credibility) to take into account his alleged abuse of the use of the interpreter. In our opinion it was.
105 The proposition may be tested by assuming an extreme position, namely, a case where it was obvious and abundantly clear to everyone that an accused spoke fluent English and was in fact hiding behind an interpreter. Does this mean that nothing can be said about the matter? Does this mean that the matter is irrelevant? Does it not legitimately go to demeanour and credit? Does the mere existence of an interpreter - without demur - mean that a priori it was valid, necessary and unable to be impugned or attacked on any basis and in any circumstances?
106 In this case, the decision to permit an interpreter to assist the accused did not involve any assessment of the extent to which the accused understood and spoke English. As in many cases, it was assumed to be necessary. Consequently, there was no decision, judgment or determination of the trial judge that could effectively foreclose any subsequent argument or discussion on the numerous matters that may arise when using an interpreter.
107 Further, counsel's acquiescence to a witness's use of an interpreter, even where the interpreter is appointed by the court after scrutiny and assessment, does not in our view prevent counsel from pointing out any obvious abuse or tactical advantage in the use of such interpreter, if indeed this is the case. Permitting the use of an interpreter does not carry with it the proposition that this can be abused. Permitting the use of an interpreter does not mean that no scrutiny of that use (or abuse) is available. It depends on the circumstances and, as with other matters relating to human behaviour, is best left to the jury.
108 In this case the assessment of whether this has occurred was inextricably related to Tsang's credit. The assessment of whether a witness is telling the truth is exclusively a matter for the jury, subject to such directions as are necessary and appropriate in the circumstances. Many factors affect this assessment. Relevantly, one of them is the manner in which a witness gives evidence. His or her responses, delays, mannerisms, prevarications are all relevant,[48] as is the manner and extent of use (and possible abuse) of an interpreter, particularly where an accused elects to use the interpreter selectively. In our opinion, it is this suggested abuse that is a proper matter for the jury. It is quintessentially a judgment as to how witnesses behave over a period and in particular circumstances. Any observations that a jury may make in this regard - whether assisted by counsel or not and again, subject to any appropriate directions - are relevant. The giving of oral evidence is critical to a jury's assessment of a witness.[49]
109 In listening to the accused give his evidence, and more generally in regard to the accused's ability to understand and speak English, the jury would have observed:
(b) the accused agreeing that he had discussed many matters with many people in English;
(c) the accused conceding in cross-examination that he was able to speak English and that he spoke English in Canada; and
110 Of course none of this necessarily detracts from his entitlement to an interpreter - a matter assumed by all - but it does suggest that the jury was well placed to assess whether that entitlement was being misused for tactical advantage.
111 Accordingly, we conclude that an assessment as to whether or not a witness has hidden behind an interpreter is a proper matter for the jury. Further, it is a matter upon which counsel may comment and make submissions. Counsel's failure to object to the appointment or continuation of the interpreter does not preclude this. The appointment does not carry with it the corollary that any subsequent abuse - a matter exclusively for the jury - is irrelevant and cannot be pointed out by counsel.
112 It follows that the Crown was entitled to suggest to the jury, as part of its submissions on credit, that the accused was hiding behind his interpreter. The defence, naturally enough, was entitled to and did reject such a suggestion in the strongest of terms.
113 As we have noted, the trial judge simply referred to the submissions made by the Crown and of the defence without any elaboration and comment. The question is whether in the circumstances more was required. The matter is not free from difficulty.
114 The trial judge's summary of the Crown and defence submissions in relation to this matter was given the day after her Honour had dealt with the assessment of evidence. The trial judge had directed as follows:
As again I mentioned at the start of the trial, in assessing witnesses evidence some matters which may concern you include their credibility and reliability. It is for you to judge whether the witnesses told the truth and whether they correctly recall the facts about which they gave evidence.
Again this is something that we do in our daily lives all the time. There is no special skill involved, you just need to use your commonsense. You may also take into account, in your assessment of how well a witness was able to comprehend questions, and express themselves and things like their level of education, their general intelligence, may be relevant factors.
If a witness appears to hesitate or be confused, your assessment may be quite different, depending on whether that witness is highly educated and articulate in the English language, particularly, or have limited education and comprehension. Remember witnesses can lie and still appear to be very calm and confident. Witnesses can tell the truth and still appear to be very nervous and hesitant.
Giving evidence in court is not usually a pleasant experience, it can be daunting, even frightening. In coming to conclusions on these issues you can and should use your experience of life and commonsense. Assessment of evidence must be an intellectual exercise on your part in the sense that evidence should be assessed logically and objectively and you must not allow prejudice, bias, sympathy or speculation to intrude on your deliberations.
115 As indicated by the trial judge, a similar direction was given at the beginning of the trial.
116 The next day her Honour resumed the charge to the jury said the following:
In this trial the accused Tsang gave evidence. In assessing his evidence you should treat his evidence in exactly the same way that you treat the evidence of any other witness. But remembering that he is probably under more stress than other witnesses who give evidence in this trial simply because he stands accused of serious crimes.
117 It is also important to note that the suggestion that the accused was hiding behind his interpreter was a relatively minor part of the Crown closing submissions, which were directed to an assessment of the substantial evidence given in the case, the evidence of the accused and his credibility and reliability.
118 Having found that the Crown and defence were able to make submissions in relation to the accused's use of the interpreter and that it was a matter for the jury to decide, and having found that directions were given as to how to assess evidence more generally and how credit and the manner of giving evidence may affect this (and in respect of which the relevant cautions were given), we now turn to consider what further directions, if any, were required in respect of the interpreter point.
119 In our view, it would have been better for her Honour to have made more detailed references to the possible difficulties faced by the applicant in court proceedings.
120 Although it was clear that the applicant had spoken English to several prosecution witnesses, the fact that he had sufficient English to conduct social and business conversations did not mean that he was able to understand court proceedings without relying on an interpreter. As Kirby P said in Adamopoulos v Olympic Airways SA:
The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law ... Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command... is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood.[50]
121 Further, as Kenny J acknowledged in Perera v Minister of Immigration and Multicultural Affairs,[51] particular difficulties arise in giving weight to the demeanour of a witness who does not come from an Australian cultural background, particularly when his or her evidence is given through an interpreter.[52]
122 However we do not consider that the reference by the trial judge to the respective contentions of the Crown and the defence, one after the other, gave any judicial imprimatur to the Crown's submission that he had 'hidden behind an interpreter'.
123 It was simply a recognition by the trial judge that this was a matter for the jury, which in our opinion it was. The unnecessary and unstated direction was 'you decide'. As the trial judge noted in discussion with counsel in the absence of the jury, the accused's use of the interpreter and the matters referred to in paragraph 109 above would not in any event have gone unnoticed by the jury. Further, it should also be noted that in summarising the respective contentions on the use of the interpreter, the trial judge dealt with other matters in relation to evidence more generally.
124 There is a further matter that we regard as significant. Having heard the Crown submissions to the effect that the applicant was hiding behind the interpreter and made submissions in response, counsel for the applicant took no exception to her Honour's direction in relation to the assessment of credit and reliability of witnesses and in particular, the absence of any specific direction on the use of the interpreter, other than to state accurately and fairly the rival contentions of the parties. In our opinion, counsel's silence in this regard is a strong indication that, in the atmosphere of the trial, the directions were in fact adequate and seen to be adequate.
125 In R v Tripodina[53], Yeldham J said:
Although it is true... that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done.
126 The statement of Yeldham J was adopted by Winneke P in R v Williams.[54]
127 Although the matter is not free from difficulty and the perception of justice being done would have been better served if the judge had given a direction about the care and caution required to be exercised when making any assessment of the accused's use of an interpreter, in our opinion the failure to give such a direction did not give rise to a miscarriage of justice. The charge and directions given must be considered as a whole and the matter was sufficiently embraced by the directions given.[55]
128 The trial judge on more than one occasion emphasised that the assessment of the credit of a witness involved, amongst other things, common sense. Further, in our opinion, a failure to give a direction that is no more than assistance in applying common sense to the evidence should not be regarded as a defect which goes to the root of the trial.[56]
The learned trial judge erred in her directions as to the applicant's sworn evidence, and in particular erred by failing to direct the jury that an innocent person can do nothing more than give evidence and subject himself to cross examination.
131 Such a direction could have disadvantaged the applicant's cooffender Chan, who did not give evidence. The learned trial judge relied on the decision in R v Phillips[57] to support her decision to give a more limited direction. Her Honour told the jury that:
In this trial the accused Tsang gave evidence. In assessing his evidence you should treat his evidence in exactly the same way that you treat the evidence of any other witness. But remembering that he is probably under more stress than other witnesses who give evidence in this trial simply because he stands accused of serious crimes. You may think that this affected the way in which he gave his evidence. There is one further direction to give you about Tsang's evidence. It can only be used in relation to the charges against him. It is not evidence in the trial against Chan. Equally, as I have already mentioned previously, the answers which Chan gave in his record of interview can only be used by you in the trial against him, Chan. His answers are not evidence in the trial against Tsang.
It is also important to remember that it is the prosecution who must prove an accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. This does not change simply because an accused person has given evidence. This means that you should not automatically find Tsang guilty just because you reject his evidence. Equally, you should not automatically find Chan guilty if you reject his answers in his record of interview. To find an accused person guilty of an offence you must be satisfied beyond reasonable doubt that the prosecution has proven each of the elements of the crime charged.
132 The applicant submitted that R v Phillips should not be treated as holding that the full direction should not be given in a joint trial where only one accused gives evidence. Rather, the necessary direction should depend on the particular circumstances. The applicant submitted that the failure of the trial judge to give the 'full' direction disadvantaged the applicant, who unlike Chan did not get the benefit of a good character direction.
133 In our opinion, her Honour did not err in directing the jury consistently with the direction proposed in Phillips. Accordingly ground 4 fails.
134 Since the application for leave to appeal against conviction has failed, it is necessary to consider the applicant's appeal against sentence.
135 As we have said, the applicant was sentenced to imprisonment for life on both the count of importing a commercial quantity of MDMA and the count of attempting to traffic a commercial quantity of MDMA. A non-parole period of 27 years was fixed. The applicant now seeks leave to appeal against sentence.
The learned sentencing judge erred in her assessment of the level of the applicant's role in the offending by finding that:
(a) 'Implicit in the jury's rejection of your lack of knowledge of the presence of drugs was a rejection of the basis of your relationship with Ho. I can give no credence to your account of acting on Ho's instructions.' ([102]);
(b) 'All of the evidence at your trial attested to you performing acts on your own initiative without instruction or direction from anyone else' ([102]); and
(c) 'to the extent that one can ever determine the place of an offender in a syndicate hierarchy, the evidence places you at the higher end ([103]).
137 At the plea hearing, the prosecutor submitted that the only conclusion which could be drawn from the jury's verdicts was that they had rejected Tsang's evidence that Ho gave him instructions or was the person behind the importation. It therefore followed that the applicant was at the top of the hierarchy.
138 Defence counsel submitted that the issue at the trial was not whether the applicant was acting under the Ho's direction, but rather whether he knew that there were drugs in the shipment. By convicting Tsang the jury must have rejected his evidence that he believed the shipment contained computer parts, but did not necessarily disbelieve Tsang's evidence that he had been acting under Ho's direction.
139 In dealing with the role that Tsang played in the importation of and attempt to traffic in the drugs, her Honour said the following:
The Prosecutor submitted that you clearly performed a senior role at the top of the syndicate hierarchy and were a principal in the offending which involved the importation and initial storage and transportation of the drugs.
In my view precisely where you may be placed in the hierarchy, relative to other unknown parties, is not to the point. I have regard to the evidence of the role which you in fact performed. Implicit in the jury's rejection of your lack of knowledge of the presence of the drugs was a rejection of the basis of your relationship with Ho. I can give no credence to your account of acting on Ho's instructions. There is no objective evidence that anyone else was giving you instructions at the relevant time. All of the evidence at your trial attested to you performing acts on your own initiative without instruction or direction from anyone else. The significance of the role which you played over a period of at least six weeks is not diminished by reference to the possible roles others may have played in Canada or were expected to play in the distribution and ultimate sale of the drugs in Sydney. You were clearly a principal player within the confines of the time period in which the evidence demonstrates that you were involved. In that respect your role was critical to the potential success of both the importation and initial trafficking of the drugs. Furthermore, it is significant that your role continued after you departed Australia.
In my view to the extent that one can ever determine the place of an offender in a syndicate hierarchy, the evidence places you at the higher end.
For the reasons already outlined above, I also accept the Prosecutor's submissions to the effect that your role is readily distinguishable from the other co-offenders and clearly more extensive and significant than Cheun.[58]
140 Counsel for the applicant submitted that this passage in her Honour's sentencing reasons showed that the judge had treated the jury's rejection of Tsang's evidence as compelling the conclusion that they did not accept that he acted under the instructions of Ho. As a consequence, her Honour had sentenced the applicant on the basis that he was at the top of the hierarchy. Her Honour had erred in doing so, because this finding of fact could not be made against Tsang beyond reasonable doubt.[59]
141 Counsel relied on the applicant's evidence that he and Ho had travelled to Australia together, that Ho accompanied him to Sydney and had spoken in the intercepted calls with Chan about prices for drugs and payment. He also relied on the evidence of the telephone calls between Ho and the applicant after Ho left Melbourne on 1 June and Tsang's evidence of having given evidence about further contact with Ho, once he got back to Hong Kong.
142 We accept that the evidence indicated that Ho played an important role in the importation of the drugs and their attempted trafficking. However, in our opinion, ground 1 is not made out. Her Honour clearly said that where the applicant 'may be placed in the hierarchy, relative to other unknown parties, is not to the point'.[60] That approach was consistent with the observations of McLelland CJ at CL in R v Lee[61] where his Honour said:
Just as inappropriate emphasis on the amount of the drug imported may lead a sentencing court into error so may problems emerge when a sentencing court attempts to categorise the role of the offender in the criminal enterprise. The problem is that in most cases the full nature and extent of the enterprise is unlikely to be known to the sentencing court. ...
It seems to me important to bear in mind that the offence for which an offender is being sentenced is a breach of Australian law by the importation into Australia of the relevant drugs. Whatever be the international arrangements and the complexities of the chain which makes the drugs available for importation it is the criminality involved in that importation which must be identified. There may be a 'Mr Big' who is the mastermind of the complete enterprise. But this may not mean that the role of another who is subordinate to 'Mr Big', but who has the primary responsibility for effecting the importation, is reduced to that of a 'middleman' who must be sentenced at a middle level of responsibility for the offence. The nature and extent of the criminal networks which exist and are capable of accumulating tens of kilograms of drugs for importation may be known or, at least, partially understood by those involved in the criminal investigation process. However, for want of admissible evidence they are unlikely to be known to a sentencing judge in a particular case. But in my view it is not against this hypothesised mastermind - which the criminality of the person who effects the importation into Australia must be measured. The fact that another may be the mastermind does not mean that the person responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.[62]
143 We accept that the jury's rejection of Tsang's lack of knowledge of the presence of the drugs did not logically compel rejection of the proposition that he was acting under Ho's direction. However when her Honour's reasons on this issue are read as a whole, we consider that her Honour was simply pointing out that the jury had not regarded Tsang as a credible witness.
144 The evidence at the trial left it well open to the judge to find that Tsang's account that he was a foot soldier who had acted on Ho's instructions was not established on the balance of probabilities. The applicant took responsibility for dealing with local customs agents to facilitate customs clearance of the shipping container, organised the storage of the MDMA in Melbourne and organised its transportation to Sydney where it was to be distributed. As her Honour observed, the applicant came to Australia with the sole purpose of committing the offences and was a principal player during the period that he was here. Clearly, Ho also played an important role in the drug importation, but Tsang's evidence was the only basis for the assertion that he had acted under Ho's direction. The recorded telephone conversations between Ho and Chan suggested that 'Charlie' (that is Tsang) would be responsible for paying the others involved in the operation. There is no doubt that the applicant played a significant role in the importation and attempted trafficking of drugs over the period of at least six weeks whilst he was in Australia.
145 Her Honour did not find that the applicant's moral culpability was aggravated by virtue of the fact that he acted on his own initiative. Nor did she sentence him on the basis that he was directing Ho or was at the top of the hierarchy. Instead she found that he was 'at the higher end' of the drug syndicate.
146 The claim that Tsang was acting under Ho's directions could not be relied on in mitigation unless this was established on the balance of probabilities. In our opinion, her Honour correctly held that this onus had not been satisfied.
The sentence imposed on the applicant is manifestly disparate with the sentence imposed on the co-accused Minh Cheun.
148 Minh Cheun pleaded guilty to one count of attempting to possess a commercial quantity of MDMA, on the day his case was listed for trial. He provided significant assistance to the police. He was sentenced to 17 and a half years' imprisonment with a non-parole period of 11 years. The sentencing judge said that but for the plea and the assistance he had given the police, Cheun would have received a head sentence of 25 years' imprisonment.[63]
149 Cheun appealed unsuccessfully against his sentence on the sole ground that the judge had failed to give him an appropriate discount for his assistance. The New South Wales Court of Criminal Appeal noted that he had received a combined discount of 30% for his guilty plea and assistance and held that the effect of this combined discount did not fell outside the range of the sentencing judge's discretion.[64]
150 The circumstances of Minh Cheun's offending were as follows. He arrived in Australia from Canada on 21 June 2006. He liaised with Mr Ahmad about the collection of the boxes from Storage King Blacktown and engaged the services of a courier, Huang (who was unaware of the presence of the drug in the consignment) to transport the boxes from Storage King Blacktown. Huang was persuaded to store them in his garage. Cheun was involved in discussions with other unnamed men about what should be done with the boxes. He then arranged for the boxes to be moved from Mr Huang's garage to the home of Zeng, where he kept watch over the boxes.
151 After the packages were moved to Zeng's home Cheun had phone conversations with another man in which he questioned the number of packages which should have been in the containers. Zeng, Cheun and another man Au then began unloading the boxes and Cheun was arrested shortly afterwards.[65]
152 Cheun was 43 at the time of the offending and had no prior convictions. The judge who sentenced him noted that during his term of imprisonment he would be in a foreign country where he would be away from his family and friends, and his ailing elderly mother. His Honour accepted that Cheun's gambling problem had led him into debt and had contributed to his decision to commit the offence. The sentencing judge also found that:
The offender's role was pivotal to the success of the enterprise after the drugs had arrived in Australia. I accept that he was not a principal. He was following instructions. The intercepted telephone conversations generally make that clear enough. However, he was involved in making decisions akin to that of a middle manager, such as the recruitment of Mr Huang and other tasks necessary for the implementation of the instructions that he was give [sic] by telephone from abroad. In short, while he was an employee of the principals he played a significant and crucial role. He did not become involved in the enterprise at short notice as were the offenders Au and Zeng, but he came to Australia specifically to carry out the tasks designated to him.
I am prepared to accept that he was motivated to be involved in part out of concern for the safety of his family. I accept that he had a degree of reluctance but he did participate nonetheless. I find that the promise of having his $35,000 debt extinguished and being paid a further $10,000 was a contributing and additional motivation. The telephone conversation between the offender and an unknown male at 7.48pm on 28 June 2006 included that male offering to pay the offender double if he did the work of recovering the tablets himself. The offender's response to this indicates that it was something he was interested in. In another conversation a short time later he appeared to express some reluctance in continuing further in the enterprise but, as subsequent events showed, he did.
I am also prepared to accept that the offender agreed to participate to a certain degree and not more. He gave evidence to this effect. The telephone conversation at 12.03pm on 29 June 2006 where he insisted that after the tablets were recovered he was not prepared to be involved in their distribution is an illustration.
I am satisfied that the offender knew with reasonable particularity the scope of the enterprise in terms of the quantity of drug involved. The fact that he had been provided with a list of some sixty-seven boxes that should have contained the ecstasy tablets and the fact that he was aware there was a shortfall when the recovery process was underway in Zeng's garage is the basis of this finding. It is also relevant that he must have been well aware that he was dealing with people involved in serious criminal activity.
So, whilst the principals of the enterprise would be assessed as being involved at a greater level, the offender's participation represents criminality of a high order even taking into account the first part of the motivating factors I have mentioned.[66]
153 In our opinion, ground 2 succeeds. There is no doubt that the applicant's offending was more serious than that of Cheun, whose role was 'akin to that of a middle manager'. In addition Cheun assisted the authorities, pleaded guilty and showed contrition and remorse for his offending. Cheun could also rely on a number of mitigating factors which were not available to the applicant. Both the offences committed by Tsang and his personal circumstances required him to receive a considerably higher sentence than Cheun.
154 Nevertheless we consider that the disparity between the 25 year sentence which would have been imposed on Cheun[67] for the single count of attempting to possess a commercial quantity of MDMA, but for his guilty plea and assistance to the authorities, and the life sentence imposed on Tsang for the offence of attempted trafficking was sufficiently great to give rise to a justifiable sense of grievance in Tsang.
155 Because ground 2 is made out the applicant must be re-sentenced. In re-sentencing him we have taken account of the matters raised in the third and fourth grounds of appeal. We have also had regard to the submissions made by the applicant's counsel under ground 5 which alleged that the individual sentences and non-parole period were manifestly excessive.
the learned sentencing judge erred in determining that there were no matters in section 16A(2)(m) of the Crimes Act 1914 (Cth) submitted on behalf of the applicant that were relevant to mitigation of sentence.
157 Section 16A(2)(m) requires the judge to take account of 'the character, antecedents, age, means and physical or mental condition of the person' who is to be sentenced.
158 At the plea hearing, defence counsel relied on Tsang's age, his lack of prior convictions and his education and work record. In light of that reliance the applicant's counsel submitted that her Honour had erred in saying that there were no factors relevant to mitigation of sentence.
159 Despite the remark to which ground 3 relates it is apparent that her Honour considered and rejected the submissions of counsel relating to these matters. Her Honour noted:[68]
• the applicant's mature age at the time of the offending and the fact that he was otherwise an experienced businessman;
• the fact that no extenuating circumstances had been brought to the attention of the Court which might otherwise explain his offending; and
• the fact that the applicant was not affected by matters dealt with in R v Verdins.[69]
160 Her Honour also said that although the applicant did not have any prior convictions, because he had not been dealt with by the Canadian authorities until after he had committed these offences, he did not come before the Court with the benefit of a prior good character.
161 There was no error in her Honour's failure to treat the applicant's age as a mitigating factor. It was self-evident that the applicant could not rely on immaturity or lack of experience as a factor which contributed to his offending.[70]
162 Further, even if Tsang were regarded as being of prior good character before he committed the importation offence, this is not an unusual characteristic of persons involved in drug importation. In R v Nguyen; R v Pham, the New South Wales Court of Criminal Appeal said that for this reason prior good character would generally be given less weight as a mitigating factor in sentencing drug offenders.[71]
163 In light of her Honour's discussion of these matters we consider that she had appropriate regard to the matters set out in ground 3. This ground fails.
The learned sentencing judge erred in taking no account, in consideration of totality, of the period in which the applicant was undergoing sentence in Canada from 20 July 2006 and 8 February 2007.
165 During the course of the plea hearing the prosecutor told her Honour that Tsang's pre-sentence detention amounted to 1040 days. This was made up of two periods. The latter period ran from 23 June 2007 when Tsang was brought back to Australia, until 14 December 2009, the date of the plea hearing. This amounted to 906 days.
166 The earlier period, which covered some of the time that the applicant was detained in Canada, amounted to 134 days. The prosecutor told her Honour that on 20 July 2006 Tsang was charged with offences under Canadian law 'and from that day on until 9 February 2007 he spent time in relation to those Canadian offences so the Crown hasn't calculated those days in between 20 July 2006 and 8 February 2007 as pre-sentence detention in relation to these offences.' On 7 February 2007 he was convicted of the Canadian offences and sentenced to the time he had served plus one day. The prosecutor therefore said that the time spent in custody in Canada which counted as presentence detention was from 13 to 19 July 2006 and from 9 February 2007 to 22 June 2007.[72] This was said to amount to 134 days. However if the period between 13 to 19 July is included it in fact amounts to 141 days.
167 During the plea hearing, defence counsel submitted that although the period between 19 July and 7 February was not pre-sentence detention under s 18 of the Sentencing Act 1991, it should be taken into account in sentencing the applicant. He relied on R v Renzella[73] in support of that proposition. The prosecutor argued that this time should be disregarded, because it had already been taken into account by the Canadian Court.
168 The applicant now submits that the court should have taken account of the period during which the applicant was under sentence under the totality principle. The prosecutor submits that her Honour was not required to apply the principle of totality in relation to sentences imposed on unrelated offences in different jurisdictions.
169 Unfortunately neither the applicant or respondent's submissions really grappled with the particular principles which were possibly relevant in the circumstances of this case. The first question to be resolved was whether the period between 13 July 2006 and 7 February 2007 was caught by s 18. The following principles apply in answering that question.
1. The fact that the applicant was in custody between 13 July 2006 and 7 February 2007 while on remand for both the Australian and Canadian offences did not, of itself, preclude the application of s 18(1) of the Sentencing Act 1991. That is because the previous requirement in s 18(1) which allowed a declaration of pre-sentence detention to be made only where the offender had been detained for the offence for which they fell to be sentenced 'and for no other reason,' no longer applies.[74]
2. Although legislation is to be presumed not to operate extra-territorially,[75] we do not consider that this presumption prevented the Court from applying s 18 to a period of pre-sentence detention spent outside Victoria, in relation to a Victorian offence. This was implicitly conceded by the Crown at the plea hearing in relation to the periods before and after the period when the applicant was on remand for the Canadian offences.
3. Even if, as we have said, s 18(1) applies to a period of pre-sentence detention spent outside Victoria in relation to a Victorian offence, for which the offender is later sentenced in Victorian proceedings, the section does not apply to a period of time served by an offender who is under sentence for another offence at the same time as he or she is on remand for the offences for which he falls to be sentenced.[76] Thus, if the applicant had been under sentence for the Canadian offence between 20 July 2006 and 8 February 2007, this period was not covered by s 18. However while he was serving this period he was not under sentence for the Canadian offences, although the Canadian judge later took this period into account in sentencing him. If that period had not already been taken into account when the applicant was sentenced in Canada we consider that s 18 would therefore have applied.
170 We have not found any authority on whether the Renzella discretion (which requires a sentencing judge to consider whether to take account of a period spent in detention, not amounting to pre-sentence detention under s 18) applies to a period spent in detention outside Victoria. In principle, however, there is no reason why some or all of that period should not be taken into account in the exercise of the court's discretion.
171 In this case however that discretion does not apply. Even if this time had been served in Victoria, it was not 'dead time' which the judge would have been required to take into account in the exercise of her Renzella discretion, because it had already been factored into the earlier sentence imposed by the Canadian court. In those circumstances, we do not consider that the applicant was entitled to have the judge take into account some or all of the period spent on remand for the Canadian offences (while he was also on remand for these offences). If her Honour had done so, the applicant would have received the benefit of the same period twice.
172 The above discussion relates only to the Renzella discretion. However the language of ground four suggests that the applicant's real complaint is that the sentence served in Canada should have been taken into account under the totality principle, quite apart from that discretion. In Mill v The Queen,[77] the High Court considered whether an offender who had served a nonparole period in Victoria for burglary offences was entitled to have that time taken into account by a Queensland judge when the offender was sentenced for another armed robbery committed at about the same time as the Victorian offences.
173 The High Court[78] said that the application of the totality principle, which applies when a single judge has to sentence an offender for a number of offences at the same time, becomes more complicated when these offences occurred within a short space of time in more than one jurisdiction, because:
upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.[79]
In that case, the appellant was sentenced in Queensland in December 1974 to imprisonment for eight years, with a non-parole period of three years, for offences of armed robbery committed in January 1974. At the time he was sentenced he had already been in custody for some ten or eleven months. In May 1979 the appellant was sentenced in the District Court in New South Wales to imprisonment for ten years for armed robbery and concurrent sentences in respect of other charges. These offences were also committed in January 1974. The sentences were expressed to commence on 30 January 1979 and a non-parole period was specified, expiring on 18 May 1983. Street C.J.[82], with whose reasons the other members of the Court agreed, said:
'it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences ...
... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.'
The Chief Justice proceeded to make it plain that the pre-existing sentence, and the aggregate term which would result from the sentence passed by the second judge, were relevant matters necessary to be taken into account by him in determining the head sentence: see also the additional comments of Moffitt P.[83]
175 The High Court accepted the principle in Todd[84] as correct and said that it
reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time.[85]
176 The court considered that the proper approach would be to ask what would be the likely head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.[86]
177 In our view, Mill is distinguishable from the circumstances of this case. Unlike the situation in Mill, the offences for which the applicant was sentenced in Canada were not drug offences. Nor did they occur at the same time as the importation and attempted drug trafficking offences which occurred in Australia. For that reason, we do not consider that her Honour was required to take account of the period served in relation to the Canadian offences. Ground four therefore fails.
178 The offences committed by the applicant were very serious and he bore a high level of moral culpability. As her Honour observed, the quantities of drugs imported were huge, the operation was sophisticated and the applicant played a major role in the importation and attempted trafficking.
179 The profit which would have been reaped by the applicant if the drugs had not been detected was enormous. Expert evidence was given that this quantity of tablets was likely to yield between $38.4 million and over $90.5 million in the retail market, or between $25.8 million and $32.3 million if sold in bulk in lots of 1,000 tablets or more. In these circumstances, the principles of denunciation and general and specific deterrence must be given great weight in re-sentencing the applicant.
180 Although the applicant was at the higher end in the hierarchy of the syndicate, he was not at the very top. We also consider that some limited weight[87] must be given to the hardship which the applicant will experience because he is likely to serve his sentence in an Australian jail, where he will have little or no opportunity to have contact with his wife and children.
181 We would re-sentence Tsang to a period of 28 years' imprisonment on count 1 and 24 years' imprisonment on count 2. One year of the sentence imposed on count 2 should be cumulated on the sentence on count 1, producing a total effective sentence of 29 years' imprisonment. We would fix a non-parole period of 19 years.
[1] The Queen v Kim Man Freeman Tsang (Unreported, County Court of Victoria, 18 December 2009, Judge Jenkins) ('Reasons'), [6].
[2] Part of the third conversation involved two women speaking to Chan at a karaoke bar in Melbourne.
[3] He relied on Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 and Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87.
[5] He relied on R v Dellapatrona & Duffield (1993) 31 NSWLR 123, 153.
[6] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7. See also R v Masters (1992) 26 NSWLR 450, 460F-464B.
[7] [1961] HCA 22; (1961) 104 CLR 1 ('Tripodi').
[9] See for example R v Louden (1995) 37 NSWLR 683, 692, where evidence of conversations between co-conspirators was said to be admissible as circumstantial evidence of the existence of the conspiracy to manufacture drugs. It was said to be 'beside the point' whether the conversation was in furtherance of the conspiracy.
[10] [1988] HCA 39; (1988) 165 CLR 87 ('Ahern').
[11] Tripodi [1961] HCA 22; (1961) 104 CLR 1, 7.
[12] Ahern [1988] HCA 39; (1988) 165 CLR 87, 94-95.
[16] Dixon CJ, Fullagar J and Windeyer J.
[18] [1911] HCA 73; (1911) 14 CLR, 387, 400.
[19] Peter Gillies, The Law of Criminal Conspiracy, (Law Book, 1981), 163. Gillies criticises this rationale on the basis that a person is not yet generally held criminally responsible for the acts or declarations of another person unless they have directed or specifically assented to those acts.
[20] [1961] HCA 22; (1961) 104 CLR 1, 6-7 (emphasis added).
[21] [2003] VSCA 52; (2003) 7 VR 273 ('Mbonu').
[22] [1984] VicRp 34; [1984] VR 417, 430.
[23] Mbonu [2003] VSCA 52; (2003) 7 VR 273, 279-80.
[25] DPP v Shannon [1975] AC 717, 754; R v Harrison (1995) 79 A Crim R 149, 150.
[26] [1989] VicRp 21; [1989] VR 239, 270.
[27] (1990) 50 A Crim R 434, 441-3.
[28] R v Masters (1992) 26 NSWLR 450, 465.
[30] (1992) 26 NSWLR 450, 466.
[31] [2005] VSC 38; (2005) 191 FLR 272.
[33] [1985] HCA 29; (1985) 156 CLR 473, 493.
[34] See National Coal Board v Gamble [1959]1 QB 11, (1958) 42 Cr App R 240; Thambiah v The Queen [1966] AC 37.
[35] Thambiah v The Queen [1966] AC 37, 46.
[36] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.
[37] [2005] VSC 38; (2005) 191 FLR 272, 280-1.
[39] [2010] QCA 371; (2010) 247 FLR 261, 282 (Fraser and White JJA agreeing).
[40] Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 104.
[42] Hunt CJ at CL, Abadee J and James J.
[43] (1993) 31 NSWLR 123, 156.
[45] R v IAB [2009] VSCA 229, [93].
[46] R v Miletic [1997] 1 VR 593, 605; R v Strawhorn [2008] VSCA 101, [162].
[47] Section 30 of the Evidence Act 2008 (Vic) permits evidence to be given through an interpreter unless a witness can understand and speak English sufficiently so as to enable the witness to understand and respond to questions. Section 30 has the effect of changing the onus. A person is entitled to an interpreter unless the court orders otherwise. As the Australian Law Reform Commission stated in its interim report on the proposed change to the Evidence Act (Australian Law Reform Commission, Evidence, Report No 26 (1985) [611]), 'the possibility of abuse exists whatever approach is taken. The proposal gives the trial judge control over the situation.' It should be noted that s 30 only came into operation on 1 January 2010 and accordingly, was not in operation at the time of the trial. However, prior to the commencement of s 30, the right to the free assistance of an interpreter when required was regarded as one of the attributes of a fair trial.
[48] Although these are not the only relevant matters and must be treated carefully in accordance with the trial judge's directions.
[49] Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180, especially at 189.
[50] (1991) 25 NSWLR 75, 77-78.
[53] (1988) 35 A Crim R 183, 191.
[54] [2000] VSCA 232, [16] (Chernov and Smith JJA agreeing). See also R v Calides (1983) 34 SASR 355, 359 (Wells J) and R v Wright [1999] VSCA 145; [1999] 3 VR 355, 360-2 (Callaway JA).
[55] Walters v The Queen [1969] 2 AC 26, 31.
[56] R v Campbell [2007] EWCA Crim 1472; [2007] 1 WLR 2798, 2806 (Phillips CJ).
[59] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1, [12]-[14].
[63] R (Commonwealth) v Minh Cheun (Unreported, District Court of New South Wales, Hulme DCJ, 7 March 2008).
[64] Cheun v The Queen [2009] NSWCCA 116, [17] (Grove J, Giles JA and Hall J agreeing).
[65] R v Zeng [2008] NSWCCA 183, [23]-[29].
[66] R (Commonwealth) v Minh Cheun (Unreported, District Court of New South Wales, Hulme DCJ, 7 March 2008).
[67] Compare the approach approved by the Court of Appeal in Nguyen v The Queen [2011] VSCA 32, [100].
[70] R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, 127 [72(k)].
[72] What was actually recorded in the plea hearing is slightly different. However counsel has indicated that her Honour was given a chronology of the days Tsang spent in custody.
[74] The requirement was deleted by s 11(1) and (4) of the Sentencing and Other Acts (Amendment) Act 1997. See also R v Broad [1999] VSCA 149; [1999] 3 VR 31, 34 (Brooking JA).
[75] See cases discussed in D C Pearce and R S Geddes, Statutory Interpretation in Australia ( 6th ed, 2006) [5.5].
[76] R v Broad [1999] VSCA 149; [1999] 3 VR 31.
[77] (1988) 166 CLR 59 ('Mill').
[78] Wilson, Dean, Dawson, Toohey and Gaudron JJ.
[79] (1988) 166 CLR 59, 63-64.
[80] [1982] 2 NSWLR 517 ('Todd').
[81] Mill (1988) 166 CLR 59, 64.
[82] Todd [1982] 2 NSWLR 517, 519-520.
[85] Mill (1988) 166 CLR 59, 66.
[87] The applicant came to Australia specifically for the purposes of committing the offence. For the limited weight to be given to his isolation from his family in these circumstances see R v Adams [2007] VSCA 37, [24] (Vincent JA).
# Tsang
DPP
(1988) 165 CLR 87
(1961) 104 CLR 1
(2010) 247 FLR 261
(1911) 14 CLR 387
(2003) 7 VR 273
(1985) 156 CLR 473
(1999) 92 FCR 6
(1983) 34 SASR 355
(2001) 209 CLR 1
(1993) 31 NSWLR 123
(1992) 26 NSWLR 450
(1995) 37 NSWLR 683
(1987) 164 CLR 180
(1991) 25 NSWLR 75
(1997) 1 VR 558
(2007) 16 VR 269
(1988) 166 CLR 59