Boonudnoon v The Queen - [2002] WASCA 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BOONUDNOON -v- THE QUEEN [2002] WASCA 313

CORAM: WALLWORK J
MURRAY J
ANDERSON J

HEARD: 10 SEPTEMBER 2002

DELIVERED : 22 NOVEMBER 2002

FILE NO/S: CCA 25 of 2002

BETWEEN: PATTANACHART BOONUDNOON
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 33 of 2002

BETWEEN :PATTANACHART BOONUDNOON
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Directions as to burden of proof - Direction as to drawing inferences from circumstantial evidence - Admissibility of evidence of outofcourt statements by accused - Need for direction about lies told by accused - Admissibility of evidence by police officer as to handwriting

Sentence - Importation of heroin - Alleged failure to properly consider applicant's antecedents - Impact on offender of service of sentence in a foreign country

Legislation:

Nil

Result:

Appeals against conviction and sentence dismissed

Category: B

Representation:

CCA 25 of 2002

Counsel:

Appellant: Mr R D Young
Respondent: Mr H G Dembo

Solicitors:

Appellant: Gunning Young
Respondent: Commonwealth Director of Public Prosecutions

CCA 33 of 2002

Counsel:

Applicant: Mr R D Young
Respondent: Mr H G Dembo

Solicitors:

Applicant: Gunning Young
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Edwards v The Queen (1993) 178 CLR 193
Green v The Queen (1971) 126 CLR 28
R v Goncalves (1997) 99 A Crim R 193
Shepherd v The Queen (1990) 170 CLR 573
Thomas v The Queen (1960) 102 CLR 584
Zoneff v The Queen (2000) 2000 CLR 234

Case(s) also cited:

Dawson v The Queen (1961) 106 CLR 1
Grimwood v The Queen [2002] WASCA 135
Nguyen v The Queen (2001) 160 FLR 284
Quach v The Queen [1999] WASCA 210
R v Bellissimo [1996] 84 A Crim R 465
R v Black (1993) 69 A Crim R 248
R v Boxtell (1994) 2 VR 98
R v Condo (1992) 62 A Crim R 11
R v Darwell [1997] 94 A Crim R 35
R v Heryadi [1998] A Crim R 578
R v Laurentiu (1992) A Crim R 402
R v Olbrich (1999) 199 CLR 270
R v Small (1994) 72 A Crim R 462
R v Tannous (1986) 32 A Crim R 301
R v Wong 185 ALR 233
Verschuren v The Queen (1996) 17 WAR 467

WALLWORK J: I agree with the reasons for judgment and the conclusions which have been reached by Murray J. There is nothing I wish to add.
MURRAY J: The appellant was presented in the District Court upon an indictment charging him that between 25 February and 4 March 2000 at Perth he was knowingly concerned in the importation into Australia of the prohibited import, heroin, contrary to s 233B of the Customs Act 1901 (Cth). He was convicted after trial in respect of the importation into Australia of 45.5 grams of pure heroin which had been concealed in the frames of fans sent into Australia from Thailand by post. The maximum penalty under s 235 of the Customs Act is imprisonment for 25 years. On 7 February 2002 the applicant was sentenced to a term of six years imprisonment and her Honour the trial Judge fixed a non‑parole period of three years. The appellant now appeals against his conviction and seeks leave to appeal against that sentence.

The Appeal Against Conviction

The Grounds of Appeal

The appeal was argued on the following amended grounds:
"1.With respect to the evidence of the witness Brightman as to the conversation between he and the appellant, the subject of the voir dire at the trial, the learned trial judge erred:
(i)in failing to exclude the same as irrelevant and as inadmissible in circumstances where an Edwards type direction was not supported by it, or, alternatively;
(ii)in failing to exercise the discretion to exclude the said evidence as unfair to the appellant its prejudicial value effect outweighing any probative value it may have had.
1A.In the alternative to count 1 above, if the evidence was properly admitted, the learned trial judge erred in failing to properly instruct the jury as to matters which might affect their assessment of the accuracy of disputed parts

of the conversation and the question of whether the appellant had deliberately lied.
2.In answering the question raised by the jury during deliberations as to the meaning of the words 'beyond reasonable doubt', the learned trial judge:
(i)went beyond advising the jury to have regard to the normal and ordinary meaning of the words and proceeded to recount by way of an expanded explanation the cases of the prosecution and the appellant, and
(ii)instructed the jury that a reasonable doubt was not a fanciful or stupid doubt.

3.In the course of the explanation referred to in ground 2 hereof, the learned trial judge erred in directing the jury that the only reasonable inference open from the possession of the consignment note by the appellant was:
(i)it gave him the means of collecting the suspect package, and
(ii)unless the appellant found it as claimed, he must have had knowledge of the contents of the suspect package.

3A.The learned trial judge erred in failing to direct the jury that unqualified evidence given by Federal Agent Rousetty as to similarities between the appellant's handwriting and that on the consignment note should be disregarded.
4.The effect of the errors complained of both individually and in cumulative effect:
(i)rendered the trial unfair to the appellant, and
(ii)had the effect of depriving the appellant of a chance of acquittal in a case which was circumstantial in nature."

The Facts

On 29 February, according to the evidence of an officer of Australia Post, a Mr Hayles, a parcel was received in Perth by mail from Thailand. It had attached to it a consignment note of an international courier which showed the addressee to be a Mr Stephen Linn at the Park Inn International Hotel in Pier Street, Perth. The sender was identified as a Ms Patum Duang'dee of Chiang Mai, Thailand. The consignment note said that the contents of the parcel were eight fans and two umbrellas. It was described as a gift. The parcel was collected by a courier and delivered to the Park Inn International Hotel on 29 February. Mr Hayles' evidence was that a copy of the consignment note would be given to the consignor.
A Ms Marshall, a receptionist at the hotel, gave evidence that she received a number of telephone calls on 3 March 2000 from a person who gave a name which she thought was Stephen Lim. The caller was male and spoke fluent English, although with an Asian accent. He inquired about a reservation which he said had been made and he asked whether a parcel had been received. Ms Marshall was able to confirm the reservation for 5 and 6 March 2000 in the name of Linn, but because of her confusion about the name, she was unable to locate any parcel.
On 4 March 2000 the appellant arrived by air from Thailand at the Perth International Airport. He spoke first to a customs officer named Lawrence. He gave Mr Lawrence the Incoming Passenger Card which he had filled in and when asked where he was staying in Australia, he said the Ambassador Hotel.
The appellant was spoken to at more length by a second customs officer, a Mr Brightman. His evidence was of central importance to the Crown case. He questioned the appellant about the Incoming Passenger Card which the appellant confirmed he had made out. He said he had understood all the questions and required no clarification. The appellant had given his occupation as "tour business" on the card. Brightman asked him if he was a tour group leader and the appellant confirmed that he was leading a group of 10 people who would be arriving in Australia on a flight from Thailand at 7.00 am the following morning. He told Brightman that the group would be staying where he was staying, at the Ambassador Hotel, but he had no reservations for them.
Brightman checked and ascertained that the flight nominated by the appellant did not exist. Brightman told him that he did not think he was a tour leader. The appellant responded that it was none of Brightman's business, but a little later he told Brightman that he had "made it up". Asked why he had done that, the appellant said he did not want any "hassles with Customs". He said he was in Australia for private reasons.
His luggage was searched. In his document case Brightman found the copy of the consignment note to which I have referred. When asked about it, the appellant reluctantly said initially that he had found it "in the street". A little later he said he found it on the floor at Chiang Mai Airport. He said he had come to Australia to buy gems - opals.
As the search of the appellant's luggage continued, Brightman found 20 small, transparent, resealable plastic bags, a set of digital scales and a small magnifying glass. The plastic bags appeared to be unused. The appellant told Brightman that they were to contain any gems which he might purchase. He said the scales were to weigh gems and the magnifying glass was to better appraise the quality of gems.
This indeed was the appellant's evidence in his own defence at trial and he called a witness who confirmed that such bags, scales and a magnifying glass could be used for the purposes for which the appellant said he intended to use them. On the other hand, a federal police officer, a Mr Roussety, who took over the inquiry from the customs officer, gave evidence that he had frequently seen scales and plastic bags similar to those found in the appellant's luggage in the possession of those who dealt in illicit drugs.
In a pocket of the appellant's jacket Brightman found a piece of A4 size paper which the appellant told the officer he had found on the floor of the airport in an envelope with the copy of the consignment note. He said he had thrown the envelope away. On the paper was written the name "Park Inn International", the hotel's address, telephone number and facsimile number. In addition, on the bottom of the form was the name "Stephen Linn" and the date "5 Mar".
In his evidence at the trial the appellant said that he found the envelope and its contents at the airport in the street outside the airport post office. The envelope was sealed and addressed to Mr Linn in Perth. He made inquiries of those who were in the area, but could not locate the owner of the envelope. He asked at the check‑in counter. They could not help him. He kept the envelope and took it onto the aircraft when he boarded. He had no explanation for not posting the envelope, saying only that that would not have been his normal practice.
He said that he opened the envelope on the aircraft out of natural curiosity. He denied that the handwriting on the consignment note and the piece of paper was his. He denied telling Brightman any lies about the documents or where they had been found and his evidence was that he did not tell Brightman that he had made up the story about the tour group to avoid problems with the customs officers. Generally he explained that his English was not as good as it was being portrayed and he suggested that Brightman might have misunderstood what he was saying.
I digress to note that a fingerprint expert called by the Crown, a Mr Comber, located no identifiable prints on the copy of the consignment note found in the appellant's luggage. He found two fingerprints which he identified as being those of the appellant on the sheet of paper found in the appellant's coat pocket. That evidence did not, therefore, carry the matter any further. A document examiner was called, a Mr Salmon. He compared against an aircraft departure sheet and the Incoming Passenger Card admittedly in the appellant's handwriting, the original consignment note and the sheet of paper. The handwriting of the appellant he had, he said, was insufficient for him to form an opinion as to the authorship of the two documents in question; so again there was no expert evidence available to prove the authorship of those documents.
I have mentioned that Brightman referred his concerns about the circumstances surrounding the appellant's entry into this country to the Federal Police. The inquiry was managed by Agent Roussety. The appellant was taken to Royal Perth Hospital where an internal examination to locate any concealed drugs was performed. None were found. The appellant was released after the scales were returned to him. The appellant later said that he destroyed them, although they had been given to him by a friend in Thailand whom he named only as Chai. In the meantime, the police executed a search warrant at the Park Inn International Hotel. They seized the parcel. Upon x‑ray, the results were inconclusive, but a later detailed examination revealed heroin concealed in the frames of the fans contained in the parcel. No person who identified himself as Stephen Linn took up the reservation which had been made for 5 March at the hotel in that name.
Although the police had the appellant under surveillance, they seem to have lost contact with him and they were unable to confirm where he spent the night of 4/5 March 2000, but on the morning of 5 March they located the appellant again at the Perth International Airport with a boarding pass and hand luggage, waiting to board a flight to Thailand. He was arrested and charged with the offence for which he was later indicted. Throughout, he denied any involvement in the importation of the large amount of heroin - a gross quantity of a little over 71 grams which, as I have said, equated to 45 grams of pure heroin. I allow myself the observation that although the Crown case was circumstantial, to my mind the strength of the case is very evident.

Grounds 1 and 1A - Brightman's Evidence and a Direction About Lies

The appellant objected to the admission in evidence of the conversation between him and Brightman. So far as I can see, the contention was that the evidence was inadmissible because it should not be found that the statements of the appellant were voluntarily made. Brightman was alleged to have threatened the appellant with deportation. It does not appear to have been contended, as ground 1 asserts, that the evidence of what was said in the conversation was irrelevant. A voir dire was held, during which the appellant gave evidence in support of the contention mentioned. The trial Judge rejected that evidence and found that the statements had been voluntarily made. It is not now asserted that there is any basis upon which this Court should review that decision, nor, in argument before us was the evidence said to be irrelevant.
The contention now relied upon, as was the case at trial, is that the probative value of the statements made by the appellant to Brightman, if found to involve lies about the circumstances in which he came into possession of the copy of the consignment note and the sheet of paper, together with the statements made both on the Incoming Passenger Card and orally to Brightman as to why he came to this country, was substantially outweighed by their prejudicial effect. On that ground, it is asserted that the trial Judge ought to have been persuaded to exclude the evidence in the exercise of her Honour's discretion.
At trial it appears also to have been suggested that the evidence should have been excluded in the exercise of discretion on the ground that it would be unfair to admit it, as the appellant gave evidence that he lacked the capacity to fully understand what Brightman was saying to him in English. As to the latter point, it should be noted that there was other evidence by a customs officer named McGee, as well as by Agent Roussety, of the apparent capacity of the appellant not only to speak English fluently, but also to understand what was being said to him in English. It is clear that the trial Judge was not persuaded that any such unfairness was sufficiently established to cause her Honour to exercise her discretion to exclude the evidence on this ground.
As to the prejudicial effect of the evidence outweighing its probative value, it was argued that on a number of occasions during the questioning Brightman expressed his disbelief of the appellant during the course of the questioning. It is clear, in the context of the trial Judge's consideration of the exercise of the discretion to exclude, that the way in which the conversation proceeded by question and answer was relevant to an assessment of the prejudicial effect of the material, but it is abundantly clear, on a perusal of her Honour's ruling on the voir dire, that her Honour had regard to all the evidence and concluded that she should not exercise her discretion on this ground to exclude all or any part of the conversation from evidence.
For this Court the question must be, not whether the members of this Court would have exercised their discretion differently, but whether, upon the evidence, the trial Judge erred in the exercise of her discretion because she must, if she considered the matter properly, have been persuaded affirmatively to exercise the discretion to exclude the evidence. I am not persuaded that this was required of her Honour.
In the context of the trial, to convict the appellant the jury had not only to be persuaded beyond reasonable doubt of the force of the prosecution's circumstantial evidence, but also that the evidence given by the appellant upon his oath was untrue, both as to the reason why he was in this country (including his explanation for his possession of the scales, plastic bags and magnifying glass) and the manner and circumstances in which he came into possession of the copy of the consignment note and the sheet of paper bearing the particulars of the hotel, the name Stephen Linn and the date 5 March. It was, of course, crucially those documents which, being found in the appellant's possession, linked him with the drug which in a concealed manner had been consigned from Thailand to the hotel in question.
In my opinion, in those circumstances the evidence of what he said to the customs officer about such matters was highly probative in respect of the jury's task to decide the question whether they were persuaded beyond reasonable doubt that the appellant's evidence at trial was untrue. Any inconsistencies in the story from time to time were important, eg, as to where the documents were found; as was the admitted destruction of the scales, bearing in mind what had been said about them by the appellant. And so far as the appellant told a story at trial which was consistent with that given to Brightman, as was generally the case, it was important for the jury to see in what circumstances of questioning by the customs officer the story first emerged, including by reference to the content of the Incoming Passenger Card containing the statements that the appellant's intended address in Australia was at the Ambassador Hotel in Perth, that his usual occupation was "tour business" and that he was here as a tourist guide. It was important to see that the story about the acquisition of gems only emerged as the reason given originally for travelling to this country evaporated and the scales and plastic bags, in particular, were found in his luggage. To put the matter shortly, in my opinion, the first ground of appeal is entirely without merit.
As to the directions to be given to the jury by the trial Judge in relation to the matters discussed above, I note that the Crown prosecutor at trial sought directions about the circumstances in which lies told by the appellant to Brightman might be probative of his guilt pursuant to the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193. In that regard, the Crown relied upon lies told both originally and later to Brightman as to the reason why the appellant had come to Perth, the first lie being said to have been admitted by the appellant to Brightman, and the lie told as to how the appellant came to be in possession of the crucial documents. Such a direction was opposed by counsel for the appellant at trial. It now seems almost that such a direction is sought, having regard to the terms in which ground 1A is expressed, and it should be said, I think, that, in my respectful opinion, her Honour's decision was undoubtedly correct.

If the jury concluded that the appellant's evidence at trial was to be rejected, that the version of the facts given by him was untrue, it would be but a short step to the conclusion that he was telling lies on the Incoming Passenger Card and to Brightman initially as to his reason for coming to this country and that he was telling lies as to the second and quite inconsistent version he gave of his reason for coming to the country (this version being broadly consistent with his evidence at trial). It might also be thought that he lied about how he came into possession of the crucial documents and why he had them, if he was not planning to use the alias of Stephen Linn to check into the Park Inn International Hotel and to take possession of the parcel containing the heroin which, to his knowledge, had been consigned by mail to that place.
Nonetheless, proof of those lies would not be available to prove the appellant's guilt of the offence charged. His guilt would be proved by the acceptance of the probative force of the circumstantial evidence. Proof of the lies would lead to no more than the rejection of a version of the facts consistent with the appellant's innocence. In those circumstances, it would have been quite wrong to give an Edwards‑type direction: cf Zoneff v The Queen (2000) 2000 CLR 234.
Further, it is a central requirement of Edwards that a lie relied upon as evidence of the accused person's guilt must be capable of independent proof. In this case that was not so with respect to any of the alleged lies. The jury would only be satisfied that the appellant lied when he said that he came to Australia to guide a group of tourists if they accepted the evidence that he admitted that was a lie to Brightman, a fact which he denied. The question of the truth or otherwise of the statement could, therefore, only be resolved against the appellant by accepting Brightman as a truthful and accurate witness and rejecting the appellant's evidence of his denial.
The same point may be made in respect of the statements that the appellant was here as a buyer of gemstones, hence his possession of the scales and plastic bags, and that his possession of the incriminating documents was innocently explained as he said. Those statements could only be established to be lies by affirmatively rejecting the appellant as a truthful person when he spoke to Brightman and when he gave his evidence at the trial. In those circumstances, even if the telling of the lies was probative of guilt, an Edwards direction could not be given because it would only be established that the appellant told lies about the matters in question if the jury concluded that he was a liar. The process of reasoning is firmly circular.
We were not provided with the addresses of counsel, but, as to the complaint made in ground 1A, it is clear that her Honour reminded the jury that the Crown case was circumstantial, that it relied in part upon the documents in question here, the scales and the plastic bags, and that the Crown had put it that, "In reality he has too many things to explain away; and he argued with customs, perhaps to deflect attention away from his luggage". Her Honour reminded the jury that the Crown said of the appellant's evidence, "That you should reject his explanation as fanciful and you could not find that it may reasonably be true". Her Honour went on to say:
"The Crown, of course, refer to his general credit and they refer to his dealings with customs and say that the accused was not honest with customs and he's not a person that you should believe."
Speaking of the case for the appellant, her Honour reminded the jury that it was that when he spoke to Brightman, his English was not good. Brightman may have misunderstood him, or it was Brightman who was not telling the truth:
"… and he did not lie to Brightman at all. He does agree that he was upset, but that's because of the way Brightman was speaking to him and making it clear that Brightman did not believe him; and on the incoming card he had said he was coming for a holiday.
Obviously you have to make up your own mind about whether he was telling lies to customs and if he was, whether he was doing that deliberately, and it's for you to decide what significance those suggested lies have in relation to the issues in the case.
I do give you this warning: you don't follow a process of reasoning to the effect that just because a person has been shown to have told a lie about something that there is evidence of his guilt, but it goes to matters of credibility and the weight you give to what people say to you."
Her Honour then went on to remind the jury of the evidence of the appellant in some detail and she concluded this part of her address by saying:
"Now, he says to you that he had nothing to do with these drugs, that he has been truthful with you and what he has said about the consignment note is in no way fanciful. The Crown have not proven the case against him to the required standard. His counsel pointed out to you correctly that if you find that what he says about the consignment note may reasonably be true then there is a reasonable doubt and you will acquit."
In Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ said, at 245 [23 ‑ 24]:
"23.A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'
24.A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence."
The parallels between the suggested direction and that given in this case are evident. This was not a case where, in my opinion, the jury might have misunderstood the significance of the possibility that the appellant had told lies to Brightman or in his sworn evidence at trial. Her Honour had sufficiently explained the significance of the point. She was required to do no more, in the circumstances of this case, than she did.

Grounds 2 and 3 - The Directions With Respect to the Burden of Proof

No complaint is made about the directions given concerning the burden of proof and the drawing of inferences from circumstantial evidence during the course of her Honour's charge to the jury. With respect, no complaint could be made about such directions which were correct in law and clear, having regard particularly to such cases as Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573.
When, during their retirement, the jury sought clarification of the term "beyond reasonable doubt", her Honour told the jury that the words meant what they said. They were plain English words with a clear meaning and it was not possible to elaborate upon them. Her Honour said that, "A reasonable doubt is a doubt that you have that you regard as reasonable". She continued, "You are all adults and you know if you have a reasonable doubt, not a fanciful doubt, not a stupid doubt, a reasonable doubt". Her Honour concluded this part of the redirection by reiterating that "beyond reasonable doubt means beyond reasonable doubt".
In Thomas v The Queen (1960) 102 CLR 584, at 595, Kitto J said:
"Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what 'reasonable' means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable."
The same point was made by Barwick CJ, McTiernan and Owen JJ in Green v The Queen (1971) 126 CLR 28, at 33:
"A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jury men themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment."
I can see no material distinction between what her Honour said in this case and what was held to be desirable in those cases. It was not necessary for her Honour to do so, but, in my opinion, her Honour committed no error of law in telling the jury that a reasonable doubt was a doubt which they regarded as reasonable rather than fanciful or stupid.
In R v Goncalves (1997) 99 A Crim R 193 Malcolm CJ, at 196, and Wheeler J, at 203, with both of whom Heenan J agreed, held that although it was not necessary to do so, it was not necessarily an error of law to attempt to offer guidance to juries about the meaning of the term "beyond reasonable doubt", so long as the jury was not misled as to the nature of the burden of proof imposed on the Crown. In that case the trial Judge told the jury that "beyond reasonable doubt" did not mean "proof to the point of absolute certainty". The direction was upheld because, as Malcolm CJ put it at 196:
"… the learned Judge was telling the jury that proof beyond reasonable doubt did not mean proof beyond any doubt whatsoever. From the way in which it was put, I am of the opinion that it remained for the jury to determine whether any doubt they had was a reasonable doubt."
I can discern no error in what was said by her Honour in this case.
In the course of giving this redirection her Honour went on to relate it to the issues of fact in the case which would require the jury's decision. Her Honour mentioned the consignment note which, as she put it, led the police straight to the heroin. She said:
"Now, there are three alternatives, are there not? The first is that he posted the package himself and if he posted it himself it would seem to me that the only reasonable inference is that he knew what was in it. It's a matter for you. If somebody else posted it and gave him the consignment note, again it's a matter for you, but I would have thought the only reasonable inference is that he knew what was in the package. I mean, why - if you post heroin into the country you don't give the means of collecting it to somebody who doesn't know that it's got heroin in it. There's no point in it. The third is that he found it. He found the consignment note. That is really the area, it would seem to me, that you're looking at. The burden of proof remains at all times on the Crown. The Crown must satisfy you that he didn't find it. So you have to be satisfied beyond reasonable doubt that he didn't find that note."
The contention behind ground 3, which, it can be seen, does not, with complete accuracy, convey the sense of her Honour's comments, is that her Honour erred by not telling the jury that if the parcel had been posted by another and the consignment note was merely given to the appellant, it might have been the case that he was simply to give the consignment note to a third person to enable that person to collect the drug, or it might have been the case that the appellant had been given the consignment note with instructions to collect the package, without being told that it contained heroin. It will be seen that her Honour made no mention of the first possibility and made the comment that she could not see the second possibility as being reasonably open.
The point is, however, that her Honour made it clear to the jury that these were her comments on the evidence in the context of instruction as to the onus and burden of proof. It was made clear to the jury that the facts were for them and that what her Honour was saying to the jury at this point was merely comment, an expression of a view which her Honour thought might be taken of the evidence. To my mind, these remarks could produce no possibility of a miscarriage of justice.

The Evidence of Roussety as to Handwriting

This ground was but faintly pressed on the argument of the appeal. The evidence in question was given in the course of a long statement being made by the witness when asked to explain what inquiries he had in mind in which he invited the participation of the appellant. During the course of the explanation the witness referred to his discussion with the appellant. He said that he asked about the copy of the consignment note and the sheet of paper which had been taken from the appellant. He had the Incoming Passenger Card before him. He said that:
"… while I was talking to him I was looking at his passenger card, the incoming passenger card that he's filled in when he arrived that morning, and I could see some distinct similarities between his handwriting on that card and the writing here at the bottom of this document."
I agree with counsel that Roussety should not have given this evidence. He was not qualified to give an expert opinion, but the statement was made before the witness could be stopped and before defence counsel had time to object. Again we are not told what was said about it, if anything, by either prosecuting or defence counsel when they addressed the jury. The trial Judge appears to have made no mention of the evidence at all. That, I think with respect, was the best course to take. After all the real evidence on this issue was that given by Salmon, the handwriting expert to which I have previously referred. In my opinion, what occurred was not capable of causing a miscarriage of justice. The appeal against conviction should be dismissed.

The Application in Respect of the Sentence

In my opinion, the application for leave to appeal against sentence may be quickly disposed of. The fourth ground of the application, that in all the circumstances the sentence was manifestly excessive, was rightly, I think, not pressed. In my view, the sentence was a moderate one, having regard to both the finite term and the non‑parole period.
The ground of application which was relied upon was that the sentencing Judge erred in principle by failing to give proper or adequate consideration to mitigating factors personal to the applicant, his antecedents, his previous good character and the hardship likely to be endured by him and his family when serving a sentence remote from Thailand, where resides the applicant's elderly mother who was said to be dependent upon him.
However, the fact is that her Honour expressly noted in making her sentencing remarks that the applicant was a 45‑year‑old university

graduate with a good position in Thailand which earned him a good income. Her Honour said that the only mitigation was that the applicant was a person of previous good character. She said that she accepted that the applicant was far from home, which made a gaol sentence more difficult, but she also noted that the applicant had a reasonable command of English and, while in custody in this country, had occupied himself with computer courses.

Her Honour expressly mentioned what she described as a "quite special" relationship with the applicant's mother in Thailand. The applicant sent his mother money and that reflected his concern for her. The sentencing Judge noted that the applicant's mother was "very elderly". It is quite evident, in my opinion, that to the extent that these matters provided mitigation of punishment, her Honour afforded that in the sentence she imposed. I would refuse the application for leave to appeal against sentence.
ANDERSON J: I have read the judgment of Murray J and agree with it. There is nothing I can usefully add.