Chen v R - [2011] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chen v R [2011] NSWCCA 145
Hearing dates: 30 March 2011
Decision date: 22 June 2011
Before: Simpson J at 1; Davies J at 241; Grove AJ at 242
Decision:
(1) Appeal against convictions dismissed;
(2) Leave to appeal against sentences granted;
(3) Appeals against sentence dismissed.

Catchwords: CRIMINAL LAW - particular offences - offences against the person - drug offences - Drug Misuse and Trafficking Act 1985 - one count supply traffickable quantity MDMA "ecstasy" - two counts supply large commercial quantity MDMA "ecstasy" - Form 1 possession offences
CRIMINAL LAW - appeal against conviction - trial by jury - supply prohibited drug - telephone intercepts - translation of recordings - "codes" used in supply of ecstasy - whether conversations capable of innocent construction - alternative translations - conduct of defence counsel - independent translators not called - forensic decision to limit cross-examination on translation of particular words - no miscarriage of justice - finding of guilt open on the evidence - appeal dismissed
CRIMINAL LAW - evidence - opinion rule - telephone intercepts - evidence given by police officer of "argot" of drug dealing - application of s 79 Evidence Act - specialised knowledge based on experience in drug investigations - opinion framed in terms of "consistency" - evidence properly admitted
CRIMINAL LAW - evidence - witnesses - persons criminally concerned - whether evidence of tendency - proper characterisation of evidence - relevant for another purpose - s 95 Evidence Act - appropriate directions given
CRIMINAL LAW - evidence - admission of telephone intercept recordings post-dating offences alleged - appellant not involved in conversations - relevant to the issue of joint criminal enterprise - evidence properly admitted
CRIMINAL LAW - application for leave to appeal against sentence - relevance of sentences imposed on co-offenders - no error in assessment of objective seriousness - leave granted - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
Chow v R [2007] NSWCCA 225; 172 A Crim R 582
Clee v R [2009] NSWCCA 18
DAB v R; NJB v R [2010] NSWCCA 275
GAR v R (No 1) [2010] NSWCCA 163
Green v The King [1939] HCA 4; 61 CLR 167
Hristovksi v R [2010] NSWCCA 129
Jones v The Queen [1997] HCA 12; 191 CLR 439
Keller v R [2006] NSWCCA 204
Lawless v The Queen [1979] HCA 49; 142 CLR 659
Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281
M v The Queen [1994] HCA 63; 181 CLR 487
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
MFA v The Queen [2002] HCA 53; 213 CLR 606
Nguyen v R [2007] NSWCCA 249; 173 A Crim R 557
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Birks (1990) 19 NSWLR 677
R v David and Gugea (NSWCCA, 10 October 1995, unreported)
R v Fletcher [2005] NSWCCA 358; 156 A Crim R 308
R v Ignjatic (1993) 68 A Crim R 333
R v Kazzi [2008] NSWCCA 77
R v Leung [1999] NSWCCA 287; 47 NSWLR 405
R v Lowe [1984] HCA 46; 154 CLR 606
R v Menzies [1982] 1 NZLR 40
R v Quach [2002] NSWCCA 519; 137 A Crim R 345
R v RWC [2010] NSWCCA 332
R v Tang [2006] NSWCCA 167; 65 NSWLR 681
R v Van Thanh Huynh (NSWCCA, 13 May 1996, unreported)
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Ratten v The Queen [1974] HCA 35; 131 CLR 510
Rondel v Worsley [1969] 1 AC 191
SKA v The Queen [2011] HCA 13
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Texts Cited: Halsbury's Laws of England, 4th edition, Vol 3(1)
Category: Principal judgment
Parties: Guo Xiong Chen (Appellant)
Regina (Respondent)
Representation: Counsel:
G A Farmer (Appellant)
N Noman (Respondent)
Solicitors:
Elliot Lawyers (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2006/12163
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2008-10-30 00:00:00

Before:

Hulme DCJ

File Number(s):

2006/12163

Judgment

SIMPSON J : On 4 April 2008, following a five day jury trial, the appellant was convicted on all three counts on an indictment. The indictment charged the appellant with one count of supply of a prohibited drug (contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act")), alleged to have been committed between 27 May 2005 and 7 June 2005; and two counts of supplying not less than the large commercial quantity of a prohibited drug (contrary to s 25(2) of the DMT Act), alleged to have been committed, respectively, between 9 June 2005 and 26 June 2005 and on 26 June 2005. In each case the prohibited drug was MDMA, the drug commonly known as ecstasy.

By s 32 of the DMT Act, the first count carries a maximum custodial penalty of imprisonment for 15 years; by s 33(3)(a), the second and third counts each carry a maximum custodial penalty of imprisonment for life.

Following the appellant's conviction, he asked that, in sentencing, two further offences itemised on a Form 1, one of possession of a prohibited drug (1 gram of cannabis), and one of possession of a prohibited drug (6.55 grams of methylamphetamine) be, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), taken into account.

On 30 October 2008 Hulme DCJ (as his Honour then was) sentenced the appellant.

On the first count he imposed a fixed term of imprisonment for 5 years, commencing on 5 March 2008; on the third count, to imprisonment for 10 years, made up of a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months, commencing on 5 March 2009, and therefore accumulated on the earlier-imposed sentence by 1 year; and on the second count (taking into account the additional offences) to imprisonment for 12 years, made up of a non-parole period of 8 years and 6 months and a balance of term of 3 years and 6 months, commencing on 5 March 2010 and therefore accumulated by a further 12 months on the previous sentence. The aggregate sentence was of imprisonment for 14 years, made up of a non-parole period of 10 years and 6 months, with a balance of term of 3 years and 6 months.

The appellant now appeals against the conviction and seeks leave to appeal against the sentences.

The manner in which the Crown sought to (and, to the satisfaction of the jury, did) prove its case, in respect of each of the offences, was slightly different, and depended upon some expansive definitions and deeming provisions contained in the DMT Act. The definition, in s 3, of "supply" is important and an extension of the natural meaning of the word. Inter alia , "supply" is constituted by:

(i) having possession for the purposes of supply;

(ii) agreeing to supply; and

(iii) attempting to have in possession for the purpose of supply.

Count 1

The Crown sought to prove count 1 by proving that, jointly with his step-son Hao Wei Zhang ("Zhang"), the appellant was in possession of 400 ecstasy tablets. By s 7 of the DMT Act, joint possession is deemed to be possession. There was uncontested evidence that one tablet of ecstasy weighs approximately 0.25 (one-quarter) of a gram. By s 3 and Sch 1, a traffickable quantity of ecstasy is 0.75 grams. By s 29 of the DMT Act, possession of not less than the traffickable quantity of the prohibited drug in question is deemed to be in possession for the purposes of supply (unless the person accused is able to prove otherwise).

Accordingly, the Crown having proved to the satisfaction of the jury that the appellant (jointly with Zhang) was in possession of 400 tablets (100 grams, more than the traffickable quantity), he was, by s 29, deemed to have had the drug in his possession for the purpose of supply and was, by s 3, guilty of supply.

Count 2

By s 3 and Sch 1, a large commercial quantity of ecstasy is 500 grams. The Crown sought to prove count 2 by proving that (in a series of telephone conversations) the appellant agreed to supply, to various persons, 830 grams of ecstasy. By the s 3 definition of "supply", proof that the appellant agreed to supply 830 grams, therefore, for the purposes of the DMT Act, established supply of not less than the large commercial quantity of the drug.

Count 3

The Crown sought to prove count 3 by proving that, on 26 June 2005, the appellant attempted to have in his possession 2000 ecstasy tablets (500 grams). By the definition of "supply" (including attempting to have in possession), and s 3 and Sch 1, his attempt to have in his possession that quantity of ecstasy constituted supply by him of the drug.

In respect of each count, it was the Crown case that the appellant was engaged in a joint criminal enterprise with Zhang.

Before empanelling the jury, Hulme DCJ made a number of evidentiary rulings. It will be convenient to deal with them, so far as they are raised in the various grounds of appeal, below.

The trial

The Crown case

To a very significant extent, the Crown case was proved by the admission into evidence of a series of recordings of telephone conversations (Exhibits A and B) that had been lawfully intercepted, recorded and transcribed. The appellant was a party to most, but not all, of these conversations. Some were in the Mandarin language; others in the Shanghainese language, and others in English. Those conversations that were in the Mandarin and Shanghainese languages were translated by an accredited interpreter, Ms Hai Ou (Helen) Wang. A further form of "translation" was provided by the officer in charge of the investigation, Detective Senior Constable Zimmer, who gave evidence, accepted as being expert evidence, of the "argot" of drug dealing, and linguistic practices of drug criminals. This evidence of Detective Zimmer could therefore be said to be a further interpretation of the language (after translation to English) used in the conversations.

The transcript of the trial proceedings shows that all of the tape recordings (including those in the Chinese languages) were played to the jury, and the jury were provided, expressly by way of aide memoir, with the transcripts of the tape recordings. It was pointed out to them, in the usual fashion, that the tape recordings were the evidence, the transcripts were secondary; and it was also (realistically) pointed out to them that, where the conversations were in one of the Chinese languages, the primacy of the recordings was of little relevance and they were entitled to rely on the transcripts of the conversations as translated.

In all, the recordings of 39 different telephone conversations were before the jury, numbered, for convenience of reference, 1-39, in chronological order. It was not disputed that the appellant had been a party to 34 of the 39 calls. Of these, the other party to the conversation was, on 14 occasions, Zhang; on 11 occasions the other party was identified as "Hokeo"; on 4 occasions the other party was identified as "Sam"; and on 4 occasions the other party was said to be "an unknown male". The conversations to which the appellant was not a party involved Zhang, Sam, and an unknown male (or unknown males).

Nine of the conversations took place on or after 27 June 2005, thus post dating the last date mentioned in the indictment as the date on which the offences were alleged to have been committed.

The transcripts of the conversations disclose many, many references, in one form or another, to money, including to specific amounts of dollars, for example, $500, $700, $1200. In a number of calls, there are requests to borrow money, in the amounts I have just mentioned. There are also references to meetings. There are references to the use of mobile telephones.

One such conversation (at 3.32pm on 10 June 2005 (Call 6)) can here be mentioned. The conversation was in Mandarin. The transcript of the call shows that Zhang telephoned the appellant, saying that "Hao Ki" (which, I presume, is a different spelling of "Hokeo") did not need to borrow money so he would not see the appellant that day. The appellant asked:

"Why you let him ring me so late? ... Why you use this phone ringing me? ... Which phone are you using?"

Zhang replied that he had no idea; the appellant asked what handset he was holding to which Zhang again replied that he had no idea. Zhang then gave four digits of the number he was using as "8883". Zhang said that he had not made the call; the appellant asked:

"Why you let him use your phone ringing me?"

This was followed by a background sound of "fucking ... fucking ..." which was itself followed by the appellant saying:

"You fucking, fucking you son of bitch! Go dead, you fucking stupid son of bitch, you bloody unteachable!"

For a different reason, the telephone calls numbered 26 and 30 may also here be noted. The conversation recorded in call number 26 commenced at 11.31pm on 25 June 2005 and was in Shanghainese. The appellant is recorded speaking to an "unknown male", and asking the unknown male to lend him "2000 dollars". The two organised to meet at about midday the following day, 26 June. The unknown male asked the appellant to "give me that stuff". Calls 27, 28 and 29 were also said to relate to this transaction, but need not here be quoted. The conversation recorded in call number 30 took place at 8.49pm on 26 June (the last day of the range of dates of the second offence alleged, and the date on which the third was alleged to have been committed), in Shanghainese. The transcript shows that the appellant telephoned an unknown male, and asked who counted "the 2000 dollars". He is then recorded as asking:

"Didn't you take $2000? Who counted ...?"

to which the unknown male replied:

"I did."

The transcript then attributes to the appellant the following:

"One of the issues ... they are very fragmented ... all in half pieces, very crushed ..." [the word "crushed" has been struck out, and a handwritten "broken" inserted]

The appellant is recorded as saying:

"9 are short in total ... now I ... (indecipherable) ... around 10 plus ...

...

Now after weighing the stuff is 11 ...... right? ..... which means the whole ... whole pieces .. 11 whole pieces short ....... altogether .... might be 21 .., or 22 ... I have gathered all the crushed ones ......" [again, "crushed" has been struck out and the word "broken" handwritten]

The unknown male is then recorded as saying:

"Okay, now, you give all the crushed ones back to me, put them Together, give them back to me, I will have them Exchanged ........." ["crushed" is again struck out and "broken" substituted in handwriting]

At the commencement of proceedings on 27 March, the Crown Prosecutor told the judge that the alteration of "crushed" to "broken" was made by Ms Wang, after she had considered an alternative translation proposed on behalf of the appellant.

The content of some of the remaining conversations will be referred to below, in the context of the appellant's explanations.

Also in evidence (Exhibits P and Q, admitted over objection) were tape recordings and transcripts of a second series of telephone conversations to which the appellant was not a party. These were between Zhang and a man named Heng (or Henry) Zou who gave evidence in the trial. These conversations were in English, and took place between 1 and 22 July 2005.

The first witness in the Crown case was Detective Senior Constable Matthew Zimmer, who was the officer in charge of the investigation. Detective Zimmer gave detailed evidence concerning his expertise in criminal investigation, specifically drug investigations. He had been engaged as an investigator for the State's Crime Command Drug Squad of the NSW Police Service, as part of an investigation into the manufacture of prohibited drugs. He said that he had been involved in and had led a number of overt and covert investigations targeting the production, importation and distribution of prohibited drugs in various divisions of the Police Service; in a number he had coordinated covert operations involving various law enforcement authorities, targeting persons involved in prohibited drugs of different kinds. His investigations had included the use of physical and electronic surveillance, undercover police operatives and other methods. He said that he had monitored thousands of recorded conversations relating to the manufacture and distribution of prohibited drugs and was therefore familiar with the terms and procedures used by persons involved in the manufacture and supply of prohibited drugs and the methods they used to avoid detection. He gave specific evidence about ecstasy, and the manner in which it is supplied; in particular, he said it is common for ecstasy tablets to be supplied in "number quantities" rather than by weight. In his experience ecstasy was the only drug commonly supplied in large quantities in tablet form and in number quantities. He said that, in his experience, it was not uncommon for persons involved in the supply of prohibited drugs to use two or more mobile telephones at any one time, in order to "alleviate" or hinder police investigations. He gave evidence about the nature of coded conversations which, he said, vary, but he said that codes were generally terms used to describe prohibited drugs and arrangements to facilitate the supply of prohibited drugs. He said:

"Persons who engage in coded conversations will usually attempt to disguise any drug related talk by making the conversation appear legitimate in the event that the conversation may be subject to lawful interception. The terms money, and borrowing money, are common codes used by persons involved in the supply of prohibited drugs."

He said that, because ecstasy is sold in number quantities, that was an appropriate code to use in relation to that drug.

Objection was taken to the admissibility of Detective Zimmer's evidence. The basis of the objection was articulated in a pre-trial hearing as a challenge to the Detective's expertise. I will deal with this, and the ruling, when I come to the relevant ground of appeal.

Having established his expertise to the satisfaction of the trial judge, Detective Zimmer answered a global question about the recorded conversations by saying that they were "consistent with" references to drug transactions. When asked what particular words were consistent, he said:

"The words money - in these discussions - conversations there is never any discussion in relation to why a person wishes to borrow money. Never any discussion in relation to paying money back. Whenever the borrowing of money is discussed, the arrangements and meeting locations in these conversations are generally conversed into guarded conversation. In my experience money does not fragment and does not divide into half pieces. Also during these previous investigations that I've been involved in I have seen this code utilised."

The penultimate sentence was a reference to what was recorded in call numbered 30 (see above).

Detective Zimmer repeated that the conversations were "consistent with references to the prohibited drug ecstasy" and said that he based that opinion upon:

"The fact that during some of these conversations there is references to a number of - there is references to money and amounts of money and the amounts mentioned are not consistent with any other drugs, it's by weight so there's reference to quarters and ounces and halves. There is references to money which is consistent to an individual drug item and in my experience the only drug that is sold in large quantities in an individual item is ecstasy." (AB 441)

After that evidence was given, the various tape recordings were played to the jury, accompanied by their transcripts (as, where relevant, translated).

A good deal of evidence of the appellant's financial dealings was also given. This appears to have been uncontroversial, and, as it does not feature in any of the grounds of appeal, it can safely be passed over.

Other evidence, relevant to the grounds of appeal, was given by Ms Wang (the interpreter), Mr Henry Zou, and Ms Tasesa Tui.

Ms Wang's evidence concerned her translation of the recorded conversations. I will return to this when dealing with the grounds of appeal.

Mr Zou gave the bulk of his evidence under the protection of a certificate under s 128 of the Evidence Act 1995, issued after he objected to answering questions on the ground that the answers might incriminate him. The substance of his evidence was that he was acquainted with Zhang, and that Zhang had, by arrangement and on more than one occasion, provided him with ecstasy tablets. He gave evidence that, at the commencement of the arrangement, they had agreed not to use the word "ecstasy" in telephone conversations and, instead, to use code. The code word upon which they agreed, as a substitute for "ecstasy", was "tuition"; a reference to a specified number of hours of tuition would be a reference to that number of ecstasy tablets.

On one occasion in the company of Ryan McPherson-Fenn and Richard King, Zou met Zhang at Canterbury Station. Zhang supplied him with 18 ecstasy tablets, for which he paid $300 or $400. On a subsequent occasion (the date of which he did not give) he again arranged to meet Zhang at Canterbury Station, but was unable to attend. He arranged for McPherson-Fenn to attend in his place.

Zou identified Exhibits P and Q as tape recordings and transcripts of conversations he had had with Zhang. The conversations contain many references to "tuition", often accompanied by a reference to a number of hours. There are also many references to arranged meetings.

One of the calls (numbered 7, of 15 July) he identified as the call arranging the first meeting at Canterbury Station, and for the purpose of arranging for the supply to him by Zhang of the 18 ecstasy tablets. Another (call 8, of 22 July) he identified as arranging the second meeting at Canterbury Station, for the supply to him of 6 ecstasy tablets. This was the meeting that he was unable to attend, and at which McPherson-Fenn stood in for him.

The transcripts of these calls contain, respectively, references to 18 hours and 6 hours of "tuition".

Ms Tui had herself been charged with and pleaded guilty to two counts of supplying ecstasy tablets. She was arrested on 23 August 2005 (the same day as the appellant). At that time she was in possession of 245 ecstasy tablets. Some of the tablets were stamped with a "bird logo". Others were stamped with a "dolphin logo". The second count to which she pleaded guilty was of actual supply of 50 tablets to a person. On sentencing, another two offences were taken into account. These were of actual supply of 50 tablets to the same person. After reduction, by reason of her pleas of guilty, of the sentences, a non-parole period of 15 months was imposed. (She did not give evidence that she had received any benefit in sentencing by reason of her agreeing to give evidence against the appellant.)

Ms Tui said that she first met the appellant in 2001, at his home in Canterbury. His wife was present, as was Zhang. She visited the appellant there until she and her husband (Mr He) moved to an apartment in Forest Road, Hurstville. It was the appellant who made the arrangements for Ms Tui and Mr He to move into the apartment, and who, with Mr He, paid the rent. Shortly after that, again by the arrangement of the appellant, Ms Tui and Mr He moved into another apartment (apartment 197) in the same building. They shared this apartment with the appellant.

In this apartment, Ms Tui observed ecstasy tablets "on some occasions ... thousands", loose on the coffee table. Some of these were marked with a "dove logo". The appellant and Mr He supplied Ms Tui with ecstasy tablets for her own use, and for the purpose of supply to others. When she supplied others with ecstasy tablets, she paid the money to the appellant. It was the appellant who had supplied her with the ecstasy that led to the charges to which she pleaded guilty.

Also during the time she shared the apartment with Mr He and the appellant, Ms Tui observed:

"a bundle of money five centimetres high on the glass table next to the ecstasy pills in front of [the appellant]."

Ms Tui gave evidence that the appellant had asked her to register a mobile telephone for him, using (as identification) a "fake licence" bearing a photograph of the appellant, but in a false name. On other occasions, the appellant gave Ms Tui or Mr He money to purchase mobile telephones for him - about 10 in all. He asked her to dispose of the telephone she had been using because he feared that it was being intercepted. The appellant told Ms Tui not to call him on his telephone, and not to mention "pills" on the telephone, but to see him in person. He told her that, if she did need to speak to him on the telephone, because she wanted ecstasy, she was to say that she wanted something to eat.

Ms Tui's evidence was vigorously contested. Objection was taken to its admission, but was overruled. It will be necessary to consider the objection in relation to the grounds of appeal.

Detective Damien Beaufils gave evidence of events of 22 July. Police had Zhang under surveillance. They observed him meet McPherson-Fenn at Canterbury Station and saw what appeared to be an exchange of items between them. Mr McPherson-Fenn was arrested almost immediately after, in possession of 6 ecstasy tablets.

Detective Zimmer also gave evidence of events of 23 August 2005, on which date the appellant was arrested. At about 8.00am on the morning of that day, with other police officers, he participated in the execution of a search warrant at the residential premises of the appellant (which he shared with Ms Tui and Mr He). At the time of their arrival the appellant was in bed asleep. Also present was a "Mr Wang".

The execution of the search warrant was videotaped; the video and the transcript of what was audio-recorded were, respectively, in evidence as Exhibits E and F. During the course of the search, in answer to questions asked of him by police officers, the appellant directed the officers to where they located a small quantity of methylamphetamine, and one ecstasy tablet, which he said was for "self-use only". He said that he had about $6000 in cash, to pay "rental fees", and that Mr Wang was to travel to China three days later, and he (the appellant) had prepared some cash for him to take to his (the appellant's) mother. He directed police to where the money was contained in a wallet, concealed under a pillow. In fact, it contained $7400.

Detective Beaufils gave evidence of the execution of the search warrant on the appellant's premises. As a result of that search, more than 20 mobile telephones, some with and some without SIM cards, were located. A number of SIM cards were located separately, some in the appellant's motor vehicle.

After a conversation with him, Detective Zimmer arrested the appellant. Later that day, at the Hurstville Police Station and with the assistance of an interpreter, he formally interviewed the appellant. The interview was electronically recorded and transcribed. The transcript of the interview contains, inter alia , the following questions and answers:

"Q41. Our investigation focuses upon your alleged involvement in the supply of the prohibited drug ecstasy.

A. ... I don't think you have used the correct term. You mentioned the word supply. Who did I supply to?

Q42. Okay. That's - that's what I want to speak to you about ...

A. At the point of time when the police - when the police entered my room I was half asleep, half awaken and I - and I found the police was quite - not ... (indistinct) ... enough. And now I am thinking the police have to show me the search warrant.

...

Q47-48. I wish to inform you that as a result of our investigation we have intercepted a number of mobile telephone conversations ... and a number of those telephone services that were intercepted we believe belong to you.

A. Why do you say it's mine?

Q49. Okay. That's what we're alleging ...

A. Could you play it to me?

Q50. At this particular time of the investigation I do not have electronic copies to play to him. They can be made available at a later time.

A. Yeah, I would like to have a listen.

...

Q54. ... these are notes that have been recorded by a person who has listened to the phone calls and translated to English.

A. Yeah. How are you so sure that this words was spoken by me?

...

Q57. ... as a result of our investigation we believe that the person talking in some of these conversations is Mr CHEN ...

A. So do you mean that in the conversation - telephone conversation I'm, um, talking about - I was talking about supplying drugs to a party?

Q58. That's what we'll be alleging, yeah.

...

Q66. There is a phone call where you ask a male if you can borrow two thousand dollars.

...

A. Buy two thousand dollars?

...

Q68. Do you agree that you borrowed two thousand dollars?

A[69] Yes, I often borrowed money from my friends since I need to pay the rent ...

A[71] ... um, private matters and I borrow money from others. I don't want to tell."

At this stage the interview was suspended. Detective Zimmer said that the appellant's solicitor wished to speak to him. A short time later some formal questions, were asked by a senior police officer not involved in the investigation, and the interview terminated.

The defence case

The appellant gave evidence through an interpreter. He said that he had, for many years, and before he came to Australia (in 1988) been a coin collector. He produced photocopies of various coins, four books containing coins, and various packets of coins.

One unresponsive answer of the appellant is of some interest. He was asked:

"... in relation to the other coins you have there did you buy them in packets or individually?"

His non-responsive answer to this was:

"When it comes to coins business when we make a phone call I will say in a habitual Chinese way that can I borrow 1000 or 2000." (AB 589)

He gave an explanation for each of the telephone conversations recorded in Exhibits A and B, to which he was a party. It is here necessary to set out some more of the content of the transcripts of the conversations, together with the appellant's explanations.

The first three telephone calls were said to relate to count 1. Each was in Mandarin. They were in the following terms:

Call 1

At 8.01pm on 3 June 2005 the appellant telephoned Zhang. He asked where Zhang was, and whether he was "coming back". Zhang said he had just left home. The appellant asked if he had taken any money, to which Zhang replied in the negative. The appellant said:

"didn't touch nothing?"

Zhang replied:

"No, no, didn't touch anything."

The appellant asked what time he would be home and whether somebody called "Hequi" (again, probably the person also referred to as "Hokeo") would be coming. Zhang replied that that person was with him then but that he did not think he would be coming over later.

The appellant's explanation for this call was transcribed as:

"Because I separate from him (sic) mother who was my ex-girlfriend in 2003. Then I moved out but my stepson was still very close to me. Then I asked him where he had gone. He said he had just left. Even though I separated from him (sic) mother the mortgage and bills were still shared equally. Then when I got there I found that there was something wrong with the $300 so I just rang him and asked him whether he had touched the money. And besides the person by the name of Hau Qu (?) [as recorded in the trial transcript] who was brought up with him because Hau Qu was a Korean and we talk about the DVD discs and I asked him to come here to pick some of them."

Call 2

Nine minutes later, at 8.10pm on the same day, the appellant again telephoned Zhang. The following conversation took place:

"Appellant: It seems the money downstair is not correct ... the money downstairs is not correct.

Zhang: No, I didn't touch it.

Appellant: It was originally 300 dollars right? ... 4 were taken ... 4 dollars ... how come only 218 ... 18 dollars left now?

Zhang: No ... I will tell you when come back, I might have put it somewhere else.

Appellant: I need it now ... understand? I have only 218 dollars left here, where is the rest of the money?

Zhang: The rest of the money ... I have all ... but I might have ... (indecipherable) but I have all paid back ... at the time.

Appellant: That's not right then ... it totals ...

Zhang: Yesterday he took 50, I have paid back.

Appellant: What time took 50 dollars?

Zhang: You remember you had your friend at our home ... Last night ...?

...

I then called you out ...

Appellant: ... 10 dollars, another 50 dollars, that becomes 60 dollars ...?

Zhang: There is a lot more ...

Appellant: How come there is so much short?

Zhang: No, no ... I don't think ...

Appellant: It's about more than 20 dollars short now.

Zhang: Let me look into it ... Let me calculate again ...

Appellant: You think about it, we work it out when you come back home ... ok?

Zhang: Ok, fine."

Of this call, the appellant said:

"This phone call should be the continuation of the previous phone call. When I went downstairs I found that some money was missing from $300, and actually there was only $218. Then I asked him, because he previously had mentioned to me that he took $4 at a time for four times, then he went across the street to buy Coca-Cola four times. Then I figured out he must have lent money to his friend or friends. He like lending money to someone like $20 or $50. Then I asked him to go through the account when he came back, and when he came back he found that the money he was going to lend to someone was actually in his pocket, and then we actually just went through the account and it was balanced after deducting the money he spent on Coca-Cola."

Call 3

The third call in this series was made on 6 June 2005 at 9.34pm. The appellant telephoned Zhang. The following conversation is recorded:

"Appellant: Where are you?

Zhang: I have just left the library.

Appellant: I have put 400 dollars there, how come so much short?

Zhang: I didn't touch it. It should be more than 300 left.

Appellant: No, it is now 70, 80 short.

Zhang: ... 70, 80 ...?

Appellant: Didn't the big tall guy take 20 last time ... Ok, say, bits by bits ... make them 10 then 30, now only just over 300 dollars ... It was 400 dollars, what a hell right?

Zhang: 400 dollars ... I lent him 50 dollars, you remember?

Appellant: You lend him 50 dollars?

Zhang: NO, not today, it was on Sat. ... yes, the day before yesterday.

Appellant: Where is the money?

Zhang: Didn't he pay you back? 750 dollars ... no, 725 dollars when you were talking in your room, you remember? ... oh, ... it was on Fri. then. The 750 dollars ... 725 dollars ... when you were in ..........

Appellant: What a nonsense you are talking! I put 400 dollars there on Sat. his birthday. I put it in a good order ... the 50 dollars you took has nothing to do with it at all! I was on ... Sat ... was the birthday on Sat.?

Zhang: NO, it was on Fri. ...

Appellant: On the day of the party, before you guys came in the evening, I put 400 dollars there, I had counted.

Zhang: I talk to you when I come back.

Appellant: Talk about it when you come back ..."

Of this call, the appellant gave the following explanation:

"After we finish the account of $300 on the last occasion, I add another $100 which made the amount to $400 because the mortgage payment and also the other bills like water charge and the electricity bills were to be paid on the 10 th . Then I said if you have got some time, just ask your mother also to take some money to pay the bills. I became aware on the night of the 6 th that some money was once again missing from the $400. That guy, well because his mother never gave him any money, and when he was a young boy I just spoil him. I gave him whatever he asked for and I was pretty relaxing to him because he become successfully involved in a law course in the university. But when I became aware that some money was missing, I have to go through the amount with him and by asking him when the money had gone, and he said the money had been lent to that person, or that person. Sometimes when he got money, he just brought some of his mates and had drinks in the room, because I had already moved out and his mother never mind his business."

Call 6 was the conversation which I have extracted above, concerning the use of a mobile telephone, in which the appellant had expressed anger that Zhang had allowed another person access to the telephone. Of this, the appellant said:

"After I separated from my ex-girlfriend in 2003 her son still listened to what I said and I was able to control him. His mother namely my ex-girlfriend would keep making phone calls once she knew our phone number. Also her problem was that once she ring you, you can't just hang up otherwise she would become suicidal. Sometimes in order to avoid accidents from happening I had to listen to what she had to say. For instance when I was on the way to Canberra in 2003 after our separation she made a phone call to me and as a result I ran over a kangaroo and I nearly lost my own life. That's why I didn't let her know my phone number.

I am such a person who likes new model of mobile phones. When the new model comes onto the market I would purchase one, and as a result I end up having different phone numbers because I need to make monthly payment for each individual phone. Because I notice that she made a lot of phone calls, therefore I gave her one of the phone numbers which was 0404 058 883. Then I give - actually I should say that I give the phone number to my stepson, not the woman.

Just a few days after I gave that number to my stepson his mother found out that number. On that day she asked a solicitor to ring me. What happened at the time was that according to the asset settlement part of the house goes to mortgage repayment, the other half should be distributed equally between the two of us. But she just took the excuse of having to support her son, she demanded a 75% of the share ... My solicitor explained to her on numerous occasions that that was son was not the product of the lady - the relationship between the lady and myself. She then became very unreasonable by saying that her son had called me Daddy for more than ten years. That was why she was demanding 75 percent, that was why she kept ringing me and arguing with me. When I realised that she knew that number I just blamed her son why he never remembered what I said."

The explanations for the remaining telephone conversations were in similar vein and, except for that numbered 30, do not need to be outlined.

Call number 30, it will be recalled, was the conversation in which the appellant was recorded as saying that "they" are "very fragmented ... all in half pieces, very crushed [broken]".

His explanation for call 26 was:

"I was in the business of trading in coins, which is somehow different from other businesses. Usually when I said can you lend me $2000 or $1000 I was referring to the Australian dollar requirements of this $2000 or $1000 coins. Because the value of these coins all depends to the different years, and the different countries that make them. So usually the value of these coins are higher than the original values of these coins, and they never the equivalent, I mean at the same value when they were coins. Sometimes even the equivalent $1000 Australian dollars, which really means a lot because they - all the differences in the years, and in their original value, that were all different ...

So in my telephone call to my friend, I ask him to bring the coin that's worth $2000 Australian dollars equivalent for then for me to have a look at first.

So I just tried to make a selection of all these coins that he brought to me and if anything that I don't like or I feel that's useless i just simply return to him and pick up the useful ones I like. Also in this call my friend ask me to give back to him for the two previous occasions when he brought some of these coins for me to select, and some ones that I don't want and want to return to him." (AB 607-608)

The appellant's explanation for call 30 was as follows:

"So that just refer to my asking my friends to bring about the coins, equivalent of $AU2,000, and after he bought these coins to me and then I check then I find that this money for these coins were not a complete set, sometimes they just miss some coins not being a complete set. Also I told my friend that there is nine different variety were missing, nine different type of coins were missing. Can I just request for the two bags of small coins and I want to show it to the jury ... So yes, that's correct, because when my friends brought to me all these bags of coins and I check and I found some of these bags' seals become loosened, and as a result almost half of these coins contained in the bag were missing. Because at the time when I ordered for 50 of these bags and they supposed to be 39 kilos, because each bag of them have a fixed weight. Then I weighed all of these bags and they add up all together 30.5 kilos instead of 39 kilos ... I weighed them at the time and I found that they altogether weighed 30.5 kilos instead of 39 kilos. I found that there is a shortage of about 8.5 kilos, and for each one cent coin should weigh about 2.6 kilogram, milligram, yeah 2.6 milligram - gram, sorry, grams, 2.6 grams. For the two cent coin they should weigh about 5.2 grams. I ask my friend to deliver me about 100 one cent coins and 100 two cent coins, and I know that the supposed weight for a bag is 780 grams. So for a 8.5 of these bags is roughly about 11 of these bags. Because also I remember that last time, on the last delivery and there is a shortage of roughly about 10 bags of - shortage of 10 bags when I ordered about 21 or 22 bags, and I also ring my friend about this. So to my query my friend told me just wait on the next time when he come and he collect whatever I don't want and then he will settle this with me. That's it, sir." (AB 610)

The appellant was cross-examined at some length about this evidence. He identified the "unknown male", the other party to the conversation, as "James", a friend and also a coin collector (AB 655). "James" was also the "unknown male" who was party to the conversation in calls 26, 27, 28 and 29. The appellant maintained that both conversations recorded in calls 26 and 30 related to the purchase by him of Australian coins from James. He said that when he received the coins on 26 June, he expected coins to the value of $2000 Australian, but received coins to the value of only $1100. His complaint to James that "they are fragmented, all in half pieces, very broken" was a complaint that when the bags of coins arrived they were not a complete set, and that one bag had lost half of its contents because the seal was broken (AB 669).

When asked about the reference to "fragmented" he said that he thought that the translation was wrong something he repeated from time to time.

The appellant was then asked if knew Ms Tui. He said that he did, but only because he knew her husband, Mr He, and that he could not really communicate with her because his English was limited (but he agreed that they had lived in the same apartment). He denied that he supplied her with ecstasy and denied that he paid the rent on the apartment; he denied asking Ms Tui to purchase mobile telephones for himself.

The appellant also said that he knew Zou, again through Mr He.

The grounds of appeal

The appellant pleaded the following grounds of appeal against conviction:

"1. The trial judge erred in admitting opinion evidence from Det Zimmer;

2. (Abandoned)

3. The trial judge erred in allowing evidence to be given by Ms Tui;

4. (Abandoned)

5. The trial judge erred in allowing evidence of conversations which occurred subsequent to the last date of the charge period in the indictment and which did not involve the appellant;

6. The trial judge erred in directing the jury as to the use that could be made of the evidence of Ms Tui and the evidence of conversations to which the appellant was not a party and which occurred after the period of charges alleged against the appellant;

7. In relation to count 2, the evidence did not establish that the quantity of drug was in excess of the large commercial quantity for [ecstasy];

8. The trial in relation to count 3 miscarried because:

(a) evidence available to the appellant was not tendered in his case; and

(b) evidence of witnesses called by the Crown was not challenged on the basis of that evidence;

9. The trial judge erred in allowing count 3 to go to the jury;

10. The verdicts on each of the three counts were unreasonable."

Somewhat puzzlingly, counsel who appeared for the appellant said that ground 9 was not relied upon in the conviction appeal, but was relied on in support of the sentence appeal. Counsel was given leave to reformulate the ground. The reformulation became ground 5 of the application for leave to appeal against sentence.

Ground 1: opinion evidence - Detective Zimmer

Part 3.3 of the Evidence Act 1995 regulates the admissibility of opinion evidence. By s 76 (subject to a presently immaterial exception) evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Provision is made for further exceptions in s 77, s 78 and s 79. It is s 79 (later re-numbered as sub-s (1)) that is presently relevant. That section provides:

"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."

The objection that was taken at trial to the admission of Detective Zimmer's opinion evidence was based upon a challenge to his expertise. The transcript of the argument (AB 381.2) reveals that the challenge itself depended upon a misconception as to the nature of the expertise upon which the Crown relied. Senior counsel repeatedly referred to the concept of "ad hoc expert". That term (it seems) derives from R v Menzies [1982] 1 NZLR 40. The notion of an ad hoc expert is examined and explained in R v Leung [1999] NSWCCA 287; 47 NSWLR 405. See also R v Tang [2006] NSWCCA 167; 65 NSWLR 681; Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180; Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281. An "ad hoc expert" may best be described as a person who has acquired expertise in a narrow subject matter that would not ordinarily call for or warrant or be susceptible to specialised training, study or experience. A common example, as in Leung , is voice identification, where expertise may be acquired by repeatedly listening to tape recordings of conversations such as are here in question.

However, Detective Zimmer was not advanced as an "ad hoc expert". He was put forward by the Crown as a witness who, within the meaning of s 79, had specialised knowledge based upon his training, study and experience. His evidence supported that claim.

Hulme DCJ disallowed the objection and admitted the evidence. In a short judgment delivered on 18 March (before empanelling the jury) he noted the evidence contained in Detective Zimmer's statement concerning his experience in the investigation of the criminal drug milieu, and declared himself satisfied that Detective Zimmer had the requisite specialised knowledge and was therefore able to give expert evidence. That conclusion is not now challenged.

His Honour was conscious, however, of limitations that apply to the manner in which such evidence may be given. These are illustrated in the decisions in Keller v R [2006] NSWCCA 204 and Nguyen v R [2007] NSWCCA 249; 173 A Crim R 557, in both of which the circumstances were similar to those here under consideration. In Keller , a police officer, qualified as an expert, gave evidence as to his opinion of the meaning of the words actually used by the subjects of the recordings. He said that certain words were references to drugs. In one answer, he rejected a proposition that the words might mean something else.

In Keller , Studdert J identified three separate flaws in the manner in which the expert evidence was given. The first was that the witness gave evidence of his opinion that the person recorded was in fact talking about drugs (as distinct from an opinion that the language used could have been , or was consistent with, the language of drug dealing: see R v David and Gugea (NSWCCA, 10 October 1995, unreported) at p 8; for a contrary approach, see R v Van Thanh Huynh (NSWCCA, 13 May 1996, unreported). Hulme DCJ was conscious of this, and ensured that Detective Zimmer's evidence avoided that pitfall. His evidence was directed to the consistency of the language used with the language used by those involved in drug trading.

The second flaw in Keller was that the evidence did not meet the requirements of expert evidence as spelled out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 in that it did not sufficiently identify the basis for the opinion. That does not here arise.

The third flaw in Keller was exposed in some answers given by the expert witness in cross-examination. In respect of some statements attributed to Keller's co-accused, the following questions were asked and answers given:

"Q. You can't say that simply by reading that, someone saying he's going to meet someone at 9 o'clock in the morning that that relates to drugs can you?

A. I placed this telephone conversation in the total context of which it was involved.

Q. What was the total context ... that you're talking about, what are the contextual matters that you rely on reaching that conclusion?

A. The fact that [the co-accused] was arrested with half a kilo of cocaine the following day.

Q. You just reasoned backwards. He's got the drugs on him so therefore he must be talking about drugs, is that your process?

A. It's consistent with the outcome.

Q. But that's your process of reasoning is it?

A. In this particular matter?

A. Yes?

A. Yes."

In other words, the witness gave opinion evidence that the interpretation he placed on the words used and asserted to be in code was not wholly based upon his expertise in the argot of drug dealing, but was based on a process of deduction from subsequently established facts - the arrest of the co-accused in possession of cocaine the following day. His opinion was influenced, or clouded, by his knowledge of extrinsic facts. Studdert J considered that it had not been shown that the opinions expressed by the witness were wholly or substantially based upon his specialised knowledge (but were, at least in part, based upon his knowledge of the subsequent arrest). He added that, even if the evidence were admissible, it ought to have been excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the appellant. That, it seems, was for the same reason - that the witness had formed his opinion in part by the process of deduction following the discovery of the cocaine in the possession of the co-accused the following day. That meant that the opinion of the expert was not based upon his particular expertise, as required by s 79.

In Nguyen v R [2007] NSWCCA 249; 173 A Crim R 557 at [32]-[35] a police officer gave evidence framed similarly: that is, that the words used in fact referred to drugs. But the court concluded that he could only have formed that opinion if he had been influenced by other known facts. Indeed, in that case, the Crown conceded that it had become evident at trial that the police officer had:

"... inappropriately allowed other information he had received to form part of the basis for his opinions." ([35])

Counsel for the appellant relied upon this as the basis for his present challenge to the evidence of Detective Zimmer. It was not the basis for the challenge at trial.

Underlying the present challenge to the admission of Detective Zimmer's evidence is an assumption of fact that is unsupported by the evidence. That assumption is that Detective Zimmer allowed extrinsic facts to colour the interpretation he placed upon the words used in the conversations. That that occurred in Keller was established by the evidence I have extracted above; in Nguyen it was inferred from the manner in which the witness framed his evidence - he gave evidence that the participants in the conversations were in fact referring to drugs, rather than that the words used were consistent with references to drugs - and from the Crown concession. The court concluded that he had allowed other information to intrude upon his assessment.

No such inference is available or ought to be drawn in the present case. The assumption was based solely upon Detective Zimmer's position as officer-in-charge of the investigation. It was argued that he could not, for the purpose of giving his opinion evidence, have disassociated himself from what he otherwise knew of the case. As a matter of fact, that may or may not have been correct. But it has no foundation in the evidence. There was no cross-examination of Detective Zimmer, either on a voir dire , or in the trial, to suggest that he relied upon information other than that outlined in his description of his qualifications and expertise to form the opinions that the language used by the appellant and those to whom he spoke on the telephone was consistent with drug dealing. He gave a full explanation for his opinion that the references to money were consistent with references to drugs. He was scrupulous to ensure that his evidence was framed in terms of consistency.

I would reject this ground of appeal.

Grounds 3 and 6: the evidence of Ms Tui

Although ground 3 of the appeal is framed only in terms of the admission of the evidence, the submissions also incorporated part of the complaint made in ground 6 and challenged the directions that were given.

The evidence of Ms Tui may be summarised as follows:

after Ms Tui and her husband Mr He moved into unit 197 with the appellant, she observed ecstasy tablets, sometimes in thousands, loose on a coffee table;
the appellant supplied Ms Tui with ecstasy tablets for her own use;
the appellant supplied Ms Tui with ecstasy tablets for sale on his behalf;
Ms Tui observed a large amount of money on the coffee table, adjacent to ecstasy tablets, in front of the appellant;
the appellant asked Ms Tui to register a mobile telephone for him in a fictitious name;
the appellant on some occasions asked Ms Tui, or her husband Mr He, to buy mobile telephones on his behalf;
the appellant urged Ms Tui to replace her existing mobile telephone, fearing that it might have been intercepted;
the appellant told Ms Tui not to call him on the telephone, or mention "pills" on the telephone, but rather to see him in person;
the appellant told Ms Tui to use coded language (something to eat) instead of referring to "pills".

It is important to note that none of the three counts of supply alleged against the appellant involved supply to Ms Tui. I have explained in [7] above the manner in which the Crown put its case in respect of each count.

Objection was taken at trial to the admission of Ms Tui's evidence. In a judgment dated 27 March 2008, Hulme DCJ determined that her evidence would be admitted. From the judgment, it appears that the objection was based upon:

(i) asserted irrelevance of Ms Tui's evidence to any of the specific counts on the indictment;

(ii) an assertion that the evidence had "no probative value", and was "highly prejudicial" (presumably an invitation to his Honour to exercise the power conferred by s 137 of the Evidence Act );

(iii) an assertion that Ms Tui's evidence, properly understood, was tendency or coincidence evidence within the meaning of s 97 and s 98 of the Evidence Act , and that it was inadmissible because no notice, as required by those sections, had been given.

The Crown denied that the evidence was tendered as either evidence of tendency or coincidence. The transcript records that the Crown prosecutor at trial identified the purpose of Ms Tui's evidence as being:

"... to prove that the accused was jointly involved in an ongoing business of a drug supplier as we suggest the telephone intercepts relate and also that they relate to ecstasy ...

We say that Tui's evidence is so closely linked to the acts that are charged and it's within the same timeframe as the indictment which is between the end of May and the end of June when the accused was living in the same premises as her, the same drug ecstasy is alleged and I thinks (sic) he (sic) indicates that some of those had dove logos on them.

Some of the charges in the indictment relate to agreements to supply and some of them relate to deem supply having [in] possession to supply and we say that the probative value of this evidence clearly outweighs any prejudice. The very issues that the jury have got to determine as to the meaning of the telephone intercepts, whether they're coded and whether they actually refer to drugs and what that drug was. We say that this is a purpose other than a tendency purpose so they're not governed by the tendency provisions and any prejudice would not be unfair and your Honour could give an appropriate direction ..." (AB 413)

It is clear from the transcript that, at the time of the argument, his Honour had access to a statement of Ms Tui, as well as written submissions made on behalf of the appellant. Neither of these is before this Court. Some of the evidence in the statement referred to in his Honour's judgment was not, in fact, elicited from Ms Tui in the trial.

In his judgment, Hulme DCJ referred to the contents of the statement, and then noted the submissions put against its admission on behalf of the appellant. He noted a submission on behalf of the appellant as follows:

"It was also submitted that the jury could reason that because the accused was susceptible to being involved in a joint enterprise to supply drugs with [Ms Tui] they could more readily conclude that he was so involved with Zhang; that they could therefore accept the intercepted telephone conversations concerned drug supply activity rather than some innocuous activity; and following these lines of reasoning the jury would more readily find the accused guilty."

He then recorded the submissions of both parties concerning tendency and coincidence evidence, including the Crown submission that I have extracted above.

Although his Honour did not expressly rule upon the submissions, it is plain that he accepted the Crown submission that the evidence was not tendered as tendency (or coincidence) evidence. He said:

"In my view if the Crown sought to rely upon this evidence to support reasoning by the jury that because the accused was involved in drug dealing as described by Ms Tui, therefore it is more likely that he was involved in drug dealing in the manner alleged in respect of each, or any, of the counts in the indictment, then the evidence would not be admissible. That would involve tendency reasoning."

He then said that there was no need to consider the probative value of the evidence, because no notice, as required by s 97, had been given, and for that reason alone the evidence would have been inadmissible. He said:

"It seems to me that the evidence of Ms Tui that has the most probative value is that which has the effect of establishing that in about the period covered by the charges in the indictment the accused was in possession of large quantities of [ecstasy], large quantities of money, and that he adopted the practice in relation to mobile phones that could be seen to be designed to frustrate investigations by law enforcement authorities. One aspect of the matter that is particularly significant is his instruction to her not to speak of drug supply activity on the phone but that if she must do so that she should adopt a code.

The fact that the accused engaged in drug supply activity with Ms Tui or with her husband on its own is of less significance ... It seems to me that this aspect of her evidence does have probative value in explaining the basis upon which Ms Tui knew those things about the accused, particularly his instruction to her as to how to conduct himself in speaking on the telephone about drug supply activity."

Later, he said:

"I acknowledge that there is a possibility that the jury might engage in a form of tendency reasoning in relation to some of this evidence and so it will be necessary to give appropriate directions as to the permissible and impermissible uses that can be made of it. I am satisfied that this is a situation in which appropriate directions will avoid a use being made of the evidence by the jury that would involve unfair prejudice for the accused."

He then held that the evidence was relevant and had "quite important probative value" which was not outweighed by the danger of unfair prejudice. Accordingly, he admitted Ms Tui's evidence (excluding some which does not call for present consideration).

As he had indicated that he would, Hulme DCJ gave the jury a direction about the "limits" on the relevance of Ms Tui's evidence, recorded as follows:

"None of it directly ties in with any of the charges the Crown has brought against the accused. You must not reason that because her evidence shows that the accused was involved in drug supply activity, therefore he must have committed the offences alleged in the three counts in the indictment. That would be completely impermissible .

The relevance of her evidence is limited to this. The Crown case is that the accused was speaking in code in the various telephone conversations. The Crown says that he was in fact speaking about the supply of ecstasy. Ms Tui's evidence, if you accept it, goes to show that the accused was, in and around the relevant period of time, involved with ecstasy. So it is something you can take into account in considering whether the accused was in fact speaking about drugs and not the innocent subjects he claims, in intercepted telephone conversations.

Also, her evidence about the accused acquiring mobile phones in false names and instructing her to speak on the phone when speaking - speak in code when speaking on the phone about drugs is relevant for the same purpose. I repeat, that is the relevance of her evidence. You must not reason that because her evidence demonstrates the accused was involved in drug supply activity therefore he must be guilty of the offences alleged by the Crown.

Another part of the evidence of Ms Tui is that when she was arrested on 23 August 2005 she was found to be in possession of 245 ecstasy tablets. She said these came from the accused. If you accept that evidence it may be added to the evidence that the drug the accused was involved in was in fact ecstasy and not some other drug or substance. On its own it does [not] prove that in relation to the three specific charges the accused faces the drug involved was ecstasy. It is entirely a matter for you, but it is open to you to reason that if Ms Tui had ecstasy tablets on 23 August 2005 that she said came from the accused then that is something that would indicate the nature of the drug the accused was dealing with in relation to the three charges that he faces, that is that the drug involved was ecstasy and not some other drug." (bold added)

The basis of this ground of appeal is the contention that, properly characterised, the evidence of Ms Tui was tendency evidence, and therefore subject to the restrictions on admissibility and use provided in s 97 and s 101 of the Evidence Act , and that Hulme DCJ was in error in accepting that it (or any significant part of it) was not tendency evidence. If that is correct, then there is a strong argument that it was wrongly admitted - not because its character as tendency evidence would render it necessarily inadmissible, but because the scrutiny that the Evidence Act requires to be applied to tendency evidence (especially, by reason of s 101, that tendered by the Crown) was not applied, and nor were the prescribed tests: see R v Fletcher [2005] NSWCCA 358; 156 A Crim R 308 at [33].

The submissions put on behalf of the appellant (and the Crown) in this Court tended to treat the evidence of Ms Tui globally, that is, as though it were all tendency evidence, or none of it was tendency evidence. That is not necessarily the case.

Was Ms Tui's evidence tendency evidence?

"Tendency evidence" is defined in the Dictionary to the Evidence Act as:

"... evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection."

Section 97(1) provides:

" 97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."

Tendency evidence is no more and no less than evidence that is tendered to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind. The purpose of proving that a person had a tendency to act in a particular way or to have a particular state of mind is to provide the foundation for an inference. The inference sought to be drawn is that, on an occasion relevant to the proceedings, the person to whom it relates acted in a particular way, or had a particular state of mind. That is a fact in issue, or a fact relevant to a fact in issue. The foundation for the inference is the tendency evidence - that that person had a tendency to act in that (or in a closely related) way, or to have that state of mind. That the person had that tendency may (the appropriate tests having been met) be proved by proof of that person's:

character;
reputation;
conduct; or
a tendency that that person has or had.

Tendency evidence is, therefore, a species of circumstantial evidence.

The definition gives primacy to the purpose for which evidence is tendered ( R v Quach [2002] NSWCCA 519; 137 A Crim R 345 at [32]). That purpose is not necessarily to be identified solely by reference to the characterisation placed upon it by the tendering party: R v RWC [2010] NSWCCA 332 at [129]-[130]. The evidence must be carefully analysed in order to ascertain what is sought to be achieved by its admission. If, properly characterised, the evidence is tendered to provide the foundation for an inference of the kind i have referred to above, then the evidence is tendency evidence.

Not infrequently, evidence that is tendered for a purpose other than to provide the foundation for such an inference may, nevertheless, have that capacity. The drafters of the Evidence Act were aware of that, and in s 95, made specific provision for it. By that section (relevantly) evidence that is not admissible to prove tendency must not be used for that purpose, even if it is relevant for another purpose. In that case, it will be the responsibility of the trial judge to direct the jury as to what use may, and what use may not, be made of the evidence.

It is only if the evidence comes within the definition that the specific provisions (s 97 and s 101 of the Evidence Act ) concerned with the admission and use of tendency evidence come into effect. Those specific provisions are:

(i) the evidence is not admissible unless:

(a) written notice of the Crown's intention to adduce the evidence has been given (s 97(1)(a); and

(b) the court assesses the evidence (in the context of the evidence in the trial) as having significant probative value (s 97(1)(b));

(ii) (in a criminal case) the evidence can not be used against an accused unless its probative value substantially outweighs any prejudicial effect it may have on the accused (s 101(2)).

The only evidence of Ms Tui that could properly be characterised as tendency evidence was her evidence that the appellant had, on occasions, supplied her with ecstasy tablets, both for her own use and for supply to others.

In my opinion, the above analysis could readily accommodate that evidence of Ms Tui. Unless otherwise directed the jury might well have reasoned (assuming that they accepted Ms Tui's evidence) that, because the appellant had supplied Ms Tui with ecstasy on other occasions, then it was more likely that he had committed one or more of the offences charged in the indictment. Taken in isolation, the first paragraph of the Crown's submission, recorded at para [87] above, could suggest that the purpose of the tender of the evidence was to provide the foundation (the foundation being that the appellant was a drug dealer) for the inference that, on each of the occasions giving rise to the individual charges, he was dealing in drugs. But to take that in isolation would be to ignore the reality of the circumstances of the trial. An important consideration was the apparently innocuous nature of the telephone conversations - innocuous unless explained by other relevant evidence.

Hulme DCJ was well aware of the potential for tendency reasoning, and gave the directions I have extracted above. Those directions were in accord with the requirements of s 95.

The question that arises is whether there was any other legitimate reason for the admission of that part of Ms Tui's evidence. One thing is clear: it did not go directly to prove any of the counts on the indictment, none of which alleged supply to Ms Tui, even by reference to the extended definition.

It worth noting that the Crown case was largely, if not entirely, circumstantial. Notwithstanding that the allegedly incriminating conversations were recorded, there was no direct evidence against the appellant. That was because, in none of the conversations, was there any explicit reference to drugs (generically) or to ecstasy (specifically). One of the important circumstances constituting the Crown case was the expert evidence of Detective Zimmer concerning the nature of the language commonly used by drug criminals. But, it will be recalled, Detective Zimmer could not give evidence that, in his opinion, the references were, in fact, to drugs, or to ecstasy; he could only give evidence that the language was consistent with references to drugs and specifically to ecstasy. That the conversations did in fact relate to drugs, and that the drug was ecstasy, was made significantly more likely by the fact that the appellant had, independently of the charges, an association with ecstasy, and with other indicia of drug dealing.

Other relevant circumstances in allegations of drug dealing are the possession of large sums of money; covert behaviour, including the use of multiple mobile telephones, and caution in the use of the telephones and use of coded language. These all featured in the evidence of Ms Tui and was admissible, even in the absence of her evidence about the appellant's access to ecstasy, as part of the relevant circumstances. None of it, in my opinion, is properly characterised as tendency evidence. Not without significance is her evidence that some of the ecstasy tablets in the apartment were marked with a dolphin logo. That linked with a telephone call (call numbered 36) of 5 August, where an unidentified female, in a communication with Zhang, mentioned "Dolphins". (The appellant was not a party to that call.)

The question then arises whether the evidence that the appellant had supplied Ms Tui with ecstasy, both for her own use, and for supply to others, was tendency evidence. Certainly, it could be so seen, and (in the absence of appropriate directions) could have been so used. But it had another legitimate purpose. It cast further light upon the content of the appellant's telephone conversations. If the jury accepted Detective Zimmer's evidence that the references to money were consistent with references to quantities of ecstasy tablets, then Ms Tui's evidence that the appellant had access to, and dealt in, ecstasy tablets, added considerable weight to the inferences to be drawn from the conversations. It also had the capacity to strengthen Detective Zimmer's evidence.

The purpose of the tender of the evidence was not to establish the foundation for an inference that, because the appellant had, on other occasions, dealt in ecstasy, then he did so on the occasions the subject of the charges. The evidence was therefore not tendency evidence, and neither s 97 nor s 107 affected its admissibility. Having regard to the capacity of the evidence to give rise to tendency reasoning, the operative legislative provision was s 95, which Hulme DCJ correctly applied.

I would reject this ground of appeal.

Ground 5: evidence of communications post dating the alleged offences

This ground appears to relate to the conversations between Zhang and Zou (Exhibits P and Q) that took place after 26 June 2005, the date on which the third offence was alleged to have been committed, and the last of the range of dates of the second. On 22 July Zhang was directed to meet McPherson-Fenn, who was then found to be in possession of 6 ecstasy tablets. (Zhang's evidence was that McPherson-Fenn stood in for him in relation to an arranged meeting for the purpose of the delivery of 6 ecstasy tablets.)

Since the appellant was not involved in these conversations, they were admissible against him only if they were capable of throwing light on what the Crown alleged to be a joint criminal enterprise with Zhang.

Objection was taken to the admission of the evidence on the ground that it was not relevant, or, alternatively, that it ought to be excluded pursuant to either s 135 or s 137 of the Evidence Act . In concluding that the evidence was relevant, Hulme DCJ said:

"The primary issue in the trial will be whether the accused was involved in a joint criminal enterprise with Zhang to supply [ecstasy], and in seeking to establish this, the Crown will be relying on telephone intercept material.

It is anticipated that major issues in the trial will be whether the Crown is able to establish that the participants in the telephone conversations are in fact talking about drugs, and whether those drugs are, in fact, [ecstasy].

There is a body of evidence of telephone conversations involving the accused and Zhang within the period covered by the indictment. Largely it is a matter of inference, but if the inferences for which the Crown contends are drawn, then, in my view, this material provides reasonable evidence of the existence of a joint criminal enterprise between the accused and Zhang to supply drugs to others ... The impugned evidence relates to activity involving the accused co-participant in this enterprise, within a very short period of time after the period with which the charges in the indictment are concerned.

It would, in my view, be open to the jury to conclude that it demonstrates a continuation by Zhang of the very same activity that he had been involved in with the accused within the indictment period, that is, the supply of drugs, and using coded references when speaking on the telephone about drugs.

The evidence that tends to establish that it was ecstasy that Zhang supplied to the man, McPherson-Fenn, is capable of supporting the inference that this was the drug that Zhang was in the business of supplying and therefore, that this was the drug that was supplied by the joint enterprise of Zhang and the accused in the indictment period."

There is, in my opinion, no error in this reasoning. The submissions made appeared to challenge the capacity of the evidence to give rise to the inferences Hulme DCJ considered available. It was pointed out that the appellant was not a party to any of the conversations, that there was no evidence to suggest that he knew either Zou (that is not strictly correct: see para [65] above) or McPherson-Fenn, and no evidence that he used the tuition code to refer to ecstasy.

That another construction might be put upon the conversations to which the appellant was not a party does not affect their admissibility. What they meant, and any weight to be attributed to the evidence, were matters for the jury.

The real complaint that was made, it appears to me, concerned the directions that were given to the jury. His Honour said:

"It is only if you are satisfied that they [the appellant and Zhang] were involved in a joint criminal enterprise that you can look at what Mr Zhang did with his involvement with other people, other than the accused, as circumstances which support inferences that the enterprise was concerned with drug supply, that the drug concerned was ecstasy, and that they adopted the method of using code when speaking on the phone."

In my opinion, this direction was correct. However, it was submitted that the direction had the consequence that the evidence had no evidentiary use. It was submitted:

"If they jury concluded that the appellant and Zhang were in a joint criminal enterprise, which could only be a joint criminal enterprise to supply [ecstasy], as alleged by the Crown, then there is no need for the jury to refer to the challenged evidence. It has, therefore, little probative value and was highly prejudicial. As such, it should have been excluded pursuant to either ss 135 or 137 of the Evidence Act 1995."

The very point Hulme DCJ made was that the evidence added support to the contention of the Crown, which it was necessary for the Crown to prove, that the joint criminal enterprise involved the supply of a specific drug, that is, ecstasy. Put together, the evidence of Zou concerning the arrangement he had made with Zhang, and the evidence of the arrest of McPherson-Fenn, shortly after having contact with Zhang, was capable of being very persuasive that the subject of the earlier conversations between the appellant and Zhang was the drug ecstasy.

Of course, it was open to counsel for the appellant to point to divergences, such as the coded language, to suggest that the jury would not draw the inferences proposed. Again, that does not make the evidence inadmissible.

I would reject this ground of appeal.

Ground 7: did the evidence establish the supply of a large commercial quantity?

As mentioned above, the large commercial quantity of ecstasy is 500 grams. If it were correct that the evidence failed to establish agreements to supply 500 grams or more (but did establish agreements to supply 125 grams or more), then the appellant may have been convicted of the supply of a commercial quantity with a commensurately lower maximum sentence (imprisonment for 20 years).

It was the Crown case that in the 39 telephone calls making up Exhibits A and B, nine separate agreements to supply ecstasy were revealed, and that the quantities involved, by translating the dollar references to numbers of ecstasy tablets, amounted to 3320 tablets, or 830 grams. This was arrived at by analysis of the various transcripts. It may be assumed, from the fact that the jury returned verdicts of guilty, that the jury accepted that the references to dollars were reference to that quantity of ecstasy tablets.

This ground of appeal is based upon the proposition that, in at least some of those instances, it could not be established that a separate agreement was made. It is, therefore, necessary to examine the content of the various transcripts in which the Crown alleges an agreement to supply was made.

Transaction one

Call 7 was a call made by Hokeo to the appellant on 10 June 2005 at 5.57pm. Hokeo asked:

"Can I borrow $500 off you?"

The appellant asked what time; Hokeo said 7.30pm. They then arranged to meet "at normal place ... Hurstville".

Calls 8 and 9 were calls on the same day, at, respectively, 6.32pm and 8.21pm, but these did not reflect any further transactions.

Transaction two

Call 10 was a telephone call made by Hokeo to the appellant the following day, 11 June, at 4.37pm. They arranged to meet at Hurstville in 20 minutes time. The appellant is recorded as saying:

Given the conflict of evidence in the affidavits, oral evidence was given by the appellant (in Mandarin, through an interpreter), senior and junior counsel, and Ms Sadiq.

One peripheral area of conflict may here be noted. In his evidence in the appeal, the appellant was asked about his capacity to speak English. Through the interpreter, he said:

"No. Even now I don't speak English."

Both senior and junior counsel gave contrary evidence. Senior counsel said that he communicated with the appellant in English, and said:

"Well, I think he had some knowledge of English. I remember his girlfriend had good knowledge of English and my instructing solicitor was fluent in Mandarin, and still is, but I communicated with him." (p 9)

Junior counsel said:

"[Senior counsel] was speaking in English. The appellant understood some English. There was also some conversation in Chinese."

He said that prior to the trial he had on occasions spoken to the appellant, and while he required the assistance of an interpreter for the court proceedings, he was able to conduct "minimal" conversation in English.

In the trial, the appellant had said:

"I've already said that I really don't know what's the meaning of 'stuff', because my English is not very good and I don't understand." (AB 659)

In oral evidence the appellant denied that he had ever been advised by Ms Sadiq of the proposal not to cross-examine Ms Wang about her translation of "fragmented" and "broken". Indeed, he said, when shown the translations of Ms Huang and Mr Chen Ms Sadiq said that she "was very happy" and said "use these translations".

Senior and junior counsel and Ms Sadiq were called by the Crown. Senior counsel maintained that he considered that cross-examination of Ms Wang suggesting that the word "scattered" ought to be substituted for "fragmented" or "broken" would have been "devastating" to the appellant's case. This was because of her intention to illustrate her point by reference to fragments of fingernails. He said that he gave advice (presumably to this effect) to the appellant in the presence of Ms Sadiq. (That was in contradiction of Ms Sadiq's affidavit evidence to which I have already referred.)

In one sense, the conflict of evidence concerning the instructions said to have been given to counsel is an irrelevance. In Birks , Gleeson CJ stated three relevant principles as follows:

"1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

It is principle 2 that is of present importance, although, of course, it must be read in the light of principles 1 and 3.

Earlier, the Chief Justice said:

"In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case."

His Honour then cited Rondel v Worsley [1969] 1 AC 191 as follows:

"... [The advocate's] legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced."

And Halsbury's Laws of England, 4 th edition, Vol 3(1) as follows:

"... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment."

Gleeson CJ described these principles as:

"... fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice."

It is apparent that, before incompetence of counsel, even if proved, will call for the intervention of an appellant court in a conviction, it must be shown that that incompetence resulted in a miscarriage of justice.

To the extent that it is necessary to resolve the conflict concerning the instructions counsel assert were given to them, for myself, I prefer the evidence of counsel. I do not accept the appellant's denials that he was advised, and gave instructions, as claimed by counsel.

Even if those instructions had not been given it was well within the mandate of counsel to make the judgment that they did concerning the potential consequences of cross-examination of Ms Wang. There is no basis for concluding that that judgment was wrong, let alone incompetent.

It follows naturally that the decision not to call the evidence of Ms Huang was also within their mandate. Indeed, if they proposed to call Ms Huang, it was essential, in accordance with the rules of a fair trial, that they put Ms Huang's proposed evidence to Ms Wang.

Moreover, for reasons given below, in relation to ground 10, I am satisfied that no miscarriage of justice was occasioned. I would reject this ground of appeal.

Ground 10: unreasonable verdict

The entirety of the appellant's submissions on this ground were contained in a single paragraph of the written submissions, as follows:

"43. The appellant submits that the above matters, individually and collectively, establish that the verdicts were unreasonable or unsupportable: Chow v R [2007] NSWCCA 225. As such, the verdicts should be quashed. In light of the time that the appellant has already spent in prison, it is submitted that ordering a retrial is not warranted. The appellant should be acquitted of the charges."

The third sentence reflects a misunderstanding of the nature of the ground. The ground is drawn from s 6(1) of the Criminal Appeal Act 1912, which provides:

"The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ..."

and is ordinarily (and correctly) formulated as a ground that the verdict is unreasonable and/or cannot be supported on the evidence.

The logical consequence of a ruling of this Court upholding such a ground is that a verdict of acquittal is entered. It would only be in the most exceptional circumstances (which I cannot presently envisage) that a re-trial would be ordered following such a finding.

The reference to Chow v R [2007] NSWCCA 225; 172 A Crim R 582 was unexplained and unelaborated. Chow was a case that displayed some similarities with the present. Chow was charged with knowingly taking part in the supply of heroin. A person said to have been a co-offender was apprehended in possession of 5 kilograms of heroin. The case against Chow was substantially contained in the recordings of intercepted telephone conversations, supplemented by some relatively minor circumstantial evidence.

As in the present case, the language used in the telephone conversations was, on its face, innocuous, with references to horse racing (some of which were accepted as genuine), girls, contracts, amounts of money, materials, prices, furniture, plastic and others. A police officer gave expert evidence of a possible interpretation of the language used in the conversations consistent with drug supply. In the trial, an attack was made on the police officer's expertise, and qualifications to give evidence. Plainly, by the conviction, the jury rejected that attack.

The sole ground taken on appeal was that the verdict was unreasonable and could not be supported having regard to the evidence. On appeal, it was submitted that the evidence was insufficient to support the conviction, and that, on examination, the conversations were capable of innocent construction. The Court of Criminal Appeal gave four reasons for rejecting the submission. The Court referred to and quoted from the authorities concerning an appeal ground framed in terms of that presently under consideration: Jones v The Queen [1997] HCA 12; 191 CLR 439; M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; for a more recent application of the principles, see SKA v The Queen [2011] HCA 13.

In giving its reasons for rejecting the ground, the Court conducted its own examination of the conversations, and pointed to some passages in the conversations that were inconsistent with the purported subject matter, and others where, though couched, for example, in racing terms, did not make sense in that context.

The Court also discussed the earlier decision of this Court in Keller (see ground 1 above).

In Chow , the Court dismissed the appeal.

I am unable to see how the decision in Chow assists the appellant, and no explication of the reference was given.

I have carefully, as required by SKA , conducted my own independent examination of each of the telephone conversations in the present case.

I am satisfied that the references, purported to be to money, are references to quantities of ecstasy tablets.

Highly compelling, and representative, are the conversations recorded in the calls numbered 26 to 30. It is to be remembered that the conversation in call 26, in which the appellant purports to be seeking to borrow $2000 (or, on his evidence, to be seeking to buy coins worth $2000) was initiated by him at 11.31pm on 25 June; and that it was followed by three short calls (calls 27, 28 and 29) made the following day, in fairly quick succession, in which, purportedly, arrangements for a meeting were made. The final conversation was recorded in the call numbered 30, when the appellant, on the face of the call, complained that "they" (the $2000) was "fragmented" or "broken". The appellant's explanation, that the coin sets that he had sought to purchase were incomplete, is entirely unconvincing. Even if the alternative proposed translation, of "scattered" were factored in, it would be difficult to reconcile what is recorded in these calls with references to coin collecting.

Moreover, notably absent from the appellant's evidence was any detail about the nature of the coins he claimed to have been negotiating to purchase, or to have purchased. While an accused person is entitled to remain silent, and no comment may be made upon that silence, where he or she does give evidence, inferences may be drawn as much from what is not said as from what is said.

Further support is given by the call numbered 36 (to which Zhang, but not the appellant, was a party) with reference to "dolphins", consistent with the dolphin emblem on some of the ecstasy tablets seen by Ms Tui.

There was a good deal of circumstantial evidence, including the appellant's possession of large sums of money, and of multiple mobile telephones, and of the purchase of telephones in false names.

The jury were entitled to reject the appellant's unlikely explanation, and to accept Detective Zimmer's interpretation of the telephone calls. I would do likewise. I am satisfied that the evidence establishes the guilt of the appellant.

I would reject ground 10.

Application for leave to appeal against sentence

Pursuant to s 25(1) and s 32 of the DMT Act, the count 1 offence of supplying a prohibited drug attracts a maximum custodial penalty of imprisonment for 15 years; pursuant to s 25(2) and s 33 of the DMT Act, the counts 2 and 3 offences of supplying not less than the large commercial quantity of a prohibited drug attracts a maximum custodial penalty of imprisonment for life; pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, these offences are subject to a standard non-parole period of 15 years. Pursuant to s 21 of the DMT Act the two offences on the Form 1, if charged separately, would attract maximum penalties of imprisonment for 2 years.

As outlined above, the appellant was sentenced, on the first count, to imprisonment for a fixed term of 5 years; on the second, to imprisonment for 12 years, made up of a non-parole period of 8 years and 6 months and a balance of term of 3 years and 6 months; on the third, to imprisonment for 10 years, made up of a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months. The accumulation of each successive sentence on that earlier imposed yielded an aggregate sentence of 14 years, made up of a non-parole period of 10 years and 6 months with a balance of term of 3 years and 6 months.

Sentences imposed on co-offenders

Zhang pleaded guilty to an offence of supplying a large commercial quantity of ecstasy between May and August 2005. He was sentenced to imprisonment for 7 years, made up of a non-parole period of 4 years, and a balance of term of 3 years.

Zhang was 18 years of age at the time of offending, and was a law student having had an impressive academic record. He was the son of the woman with whom the appellant had had a long term relationship, but which had ended in acrimony. The sentencing judge regarded:

"... the extremely poor role models provided to him by his mother and step-father [the appellant] when he was at a particularly vulnerable age"

as a significant factor, particularly in relation to reducing the standard non-parole period.

Ms Tui pleaded guilty to charges of supplying ecstasy between 30 April and 20 August 2005 and on 2 August 2005. Three further offences were taken into account, involving a very small amount of cannabis, 50 ecstasy tablets, and 12.58 grams of ecstasy. She had a relatively minor prior criminal record. She was sentenced to imprisonment for a fixed term of 15 months, on one count, and imprisonment for 2 years and 7 months, made up of a non-parole period of 15 months, and a balance of term of 1 year and 2 months, the sentences to be served concurrently.

Mr He pleaded guilty to two counts of supply ecstasy over a period in 2005. Two further offences of drug supply were taken into account, as were an offence of goods in custody, five offences of having custody of a false instrument (false drivers licences). On one count he was sentenced to imprisonment for a fixed term of 15 months; on the other to imprisonment for 3 years, 4 months and 2 weeks, with a non-parole period of 2 years, the two sentences to be served concurrently.

The appellant's personal circumstances

The appellant did not give additional evidence following the conviction.

Before the court were a Pre-Sentence Report and a psychological report. These disclosed that the authors of the reports took histories to the following effect. The appellant was born in December 1952, in Shanghai, the eldest of three siblings. He married while living in China but was divorced after 13 years. He has a 26 year old son from this marriage. He migrated to Australia in 1988. His former wife and his son continue to live China. He has no relatives in Australia. His parents are said to be very ill in a hospital in Shanghai and this has been the cause of depression and anxiety in the appellant.

In Australia he initially he undertook employment as a process worker and then established his own business, importing electrical goods from China.

Between 1993 and 2003 he was in a relationship with the mother of the co-offender, Zhang. The relationships with both the mother and Zhang developed difficulties. The relationship with the mother came to an acrimonious end in 2003, with disputes over the division of property. The break up caused the appellant considerable distress and depression, eventually resulting in his withdrawal from his business.

The author of the Pre-Sentence Report said that the appellant displayed little insight into his offending behaviour and maintained that he had done nothing wrong, and that his conversations had been about coin collecting.

The psychologist reported that his presentation suggested a relatively low level of cognitive functioning. This was confirmed by testing, which showed that his intelligence was between low average and extremely low average. He was diagnosed as suffering a major depressive disorder and generalised anxiety disorder. The psychologist stated as a conclusion, that the appellant's criminal conduct revealed:

"... highly impaired judgment because there appeared to be little thought given to the fact that any unauthorised association with illicit drugs potentially leads to serious charges."

The remarks on sentence

Hulme DCJ sentenced the applicant on 30 October 2008.

His Honour recounted the facts of the offences as disclosed by the evidence in the trial. He expressly found that a joint criminal enterprise between the appellant and Zhang had been established, and that it was the appellant who was the dominant partner, and who largely guided and directed the activities of Zhang. He found that the supply that constituted the offence the subject of count 2 was made up in nine separate transactions (agreements to supply in total 830 grams) identified in the intercepted conversations. He found that the supply that constituted the offence the subject of count 3 was proved by the appellant's attempt to possess 2000 (500 grams of) ecstasy tablets, and that the appellant had in fact come into possession of a quantity (unspecified) but complained about the "shortfall".

Hulme DCJ made reference to the Form 1 offences, but found them to be "comparatively minor" and determined that they would have no impact on the sentence he proposed in relation to count 2, in respect of which they were taken account.

His Honour then turned to the appellant's personal circumstances, and recorded his birth in China and his age - 52 at the time of the offences, 55 at sentencing. He noted that he had no previous criminal convictions, but also recognised that, in drug supply matters, that circumstance is of limited significance.

He referred to the psychological report, but found it to be of little value. This was because it failed to provide the bases for the opinions expressed. In considering the psychologist's account of the appellant's anxiety and depression, his Honour observed that it did not seem that they had any causal connection with the commission of the offences. He did not accept the conclusion expressed concerning the appellant's supposed state of mind at the time of the offences, noting that the appellant had denied involvement in the offences.

His Honour turned to the evaluation of the objective seriousness of each of the offences. In relation to counts 2 and 3, it was necessary, by reason of the provisions of Pt 4 Div 1A of the Sentencing Procedure Act, that he place the offences within the range of objective seriousness applicable to offences of their kind. He found each to be below the middle of that range; count 2 "not by a great margin". The offence constituting count 3 he found to be less serious than that constituting count 2. That was because it involved a lesser quantity of the drug, involved a single transaction and was an attempt that was only partially successful.

His Honour referred in some detail to the sentences imposed upon Zhang, Ms Tui and Mr He. He observed that the three offenders mentioned were not involved at the same level of drug dealing as the appellant, and were charged with offences different from those with which the appellant was charged. He held that considerations of parity did not apply but noted that he would bear in mind the outcome of the proceedings against them.

His Honour rejected a submission that the circumstances of the appellant's offending was such that all sentences ought to be served concurrently.

The grounds of the application for leave to appeal against sentence were pleaded as follows:

"1. The sentences imposed are manifestly excessive;

2. The appellant has a justifiable sense of grievance having regard to the sentences imposed upon Hoa Wei Zhang;

3. The sentence for count 2 is based on an incorrect factual matter, namely, the quantity of drugs 'supplied';

4. The sentences do not properly reflect the principles of totality".

During the course of argument, leave was granted to amend the grounds by adding:

"5. His Honour erred in finding that the offending in counts 2 and 3 was just below the mid range of objective seriousness."

The written submissions did not address the grounds pleaded individually, but rather took a global approach.

Three individual circumstances, in combination, were said to point to the conclusion that the total sentence was manifestly excessive. These were:

that the period of time over which the offences were committed was relatively short, approximately one month; and that, notwithstanding that the appellant was not arrested until 23 August, there was no evidence to suggest that he had continued to engage in drug activity between 26 June and the date of arrest;
the nature of the offending; and
the sentence imposed upon Zhang.

Issue was taken with the degree to which his Honour found that the offences constituting counts 2 and 3 were below mid-range - "but not by a great margin". This somewhat misinterprets the finding, which was confined to the offence constituting count 2. In respect of count 3, his Honour expressly found that the offence was below mid-range (he did not specify to what degree).

It was submitted in this Court that each of these offences was "clearly below the mid-range of seriousness for offences of this kind". In support of this, reliance was placed upon the sentencing of Zhang. What is relevant to the assessment of objective seriousness of an offence, for the purposes of Pt 4 Div 1A, was spelt out in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [85]-[86]. These include the actus reus , the consequences of the conduct, and factors that might properly have been said to have impinged on the mens rea of the offender.

The argument is untenable. Zhang was charged with a single count of supplying a large commercial quantity of the drug. The quantity involved was 860 grams. Williams DCJ, who sentenced Zhang, declared himself "certainly satisfied" that the offence was not in the mid-range of objective seriousness, and gave a number of reasons for that evaluation. These included the quantity - the extent to which the quantity of 860 grams exceeded the commencement point for a large commercial quantity (of 500 grams); the period over which the offending took place (2 months). To that, I would add Zhang's age - he was 18 years of age at the time of the offending - and that he was significantly under the appellant's authority (as his step-son), and the influence and domination of the appellant.

Moreover, his plea of guilty (which does not go to the evaluation of objective seriousness) was, of itself, a reason for departing from the standard non-parole period.

Reference was also made to the judgment of Hall J (with which Macfarlan JA agreed, and with which I disagreed) in DAB v R; NJB v R [2010] NSWCCA 275. It is true, as was submitted, that his Honour found that the offences therein were substantially below the mid-range of seriousness for offences of their kind - see [182]. However, with respect, his Honour does not elucidate the factors that led him to that result. The reasons in DAB and NJB cast no light on whether Hulme DCJ erred in his assessment of objective gravity.

The most significant point to be made in support of the appellant's argument, in my opinion, in respect of each of counts 2 and 3, is the quantity of the drug involved. As Hulme DCJ noted, the quantity involved in the count 3 offence was 500 grams, just sufficient to constitute a large commercial quantity. That in the count 2 offence was 830 grams, but, when one considers that there is no upper limit to the large commercial quantity, it is obvious that there will be many offences involving significantly larger quantities. Quantity, while a relevant factor, is not the sole determinant: Wong v The Queen ; Leung v The Queen [2001] HCA 64; 207 CLR 584 . The tape-recorded conversations disclose an intensity of activity that is also a relevant factor. Indeed, while the appellant relied upon the relatively short time frame over which the offences were committed, the other side to that coin is the very intensity of activity over that limited time. It is, in my opinion, also relevant to the assessment of objective gravity that each offence was committed as part of a joint criminal activity.

I am not satisfied that any error has been demonstrated in his Honour's approach to, or conclusions concerning, the evaluation of objective seriousness of the offences constituting counts 2 and 3.

It was further submitted that, in any event, the findings were not reflected in the sentences imposed. That submission cannot withstand scrutiny. It is only necessary to identify (again) the standard non-parole period - 15 years - against the non-parole periods imposed - 8 years and 6 months and 7 years and 6 months. Effect was clearly given to the findings.

A number of cases were referred to as support for the proposition that findings concerning objective gravity were not reflected in the sentences imposed. For completeness, I note those cases. They were: Hristovksi v R [2010] NSWCCA 129; R v Kazzi [2008] NSWCCA 77; DAB v R; NJB v R [2010] NSWCCA 275. Those cases may (or may not) establish that the sentences imposed on the appellant were more severe than sentences imposed on the other offenders the subject of those decisions. They do not establish that Hulme DCJ was wrong in the approach that he took or the sentences that he imposed. They may, on examination, suggest insufficient adherence to statute law. In my opinion, the sentences imposed by Hulme DCJ were precisely in accordance with the legislative prescription.

Specific reliance was placed upon the sentences imposed upon Zhang, not only by reference to the assessment of objective gravity, but also, in a conventional parity sense: R v Lowe [1984] HCA 46; 154 CLR 606. That reliance was, in my opinion, quite misplaced. The argument ignored the very significant distinctions between the two offenders. As I have pointed out above, Zhang's circumstances were very different from those of the appellant. The mere facts that he was 18 years of age, under the authority and influence of the appellant, and dominated by him, are sufficient to dispose of the parity argument.

I am satisfied that no error has been demonstrated in the sentencing. I would grant leave to appeal against but dismiss the appeal.

The orders that I propose are:

(1) Appeal against convictions dismissed;

(2) Leave to appeal against sentences granted;

(3) Appeals against sentence dismissed.

DAVIES J : I agree with Simpson J.

GROVE AJ : I agree with Simpson J.

**********

Decision last updated: 23 June 2011

Medium Neutral Citation:	Chen v R [2011] NSWCCA 145
Hearing dates:	30 March 2011
Decision date:	22 June 2011
Before:	Simpson J at 1; Davies J at 241; Grove AJ at 242
Decision:	(1) Appeal against convictions dismissed; (2) Leave to appeal against sentences granted; (3) Appeals against sentence dismissed.
Catchwords:	CRIMINAL LAW - particular offences - offences against the person - drug offences - Drug Misuse and Trafficking Act 1985 - one count supply traffickable quantity MDMA "ecstasy" - two counts supply large commercial quantity MDMA "ecstasy" - Form 1 possession offences CRIMINAL LAW - appeal against conviction - trial by jury - supply prohibited drug - telephone intercepts - translation of recordings - "codes" used in supply of ecstasy - whether conversations capable of innocent construction - alternative translations - conduct of defence counsel - independent translators not called - forensic decision to limit cross-examination on translation of particular words - no miscarriage of justice - finding of guilt open on the evidence - appeal dismissed CRIMINAL LAW - evidence - opinion rule - telephone intercepts - evidence given by police officer of "argot" of drug dealing - application of s 79 Evidence Act - specialised knowledge based on experience in drug investigations - opinion framed in terms of "consistency" - evidence properly admitted CRIMINAL LAW - evidence - witnesses - persons criminally concerned - whether evidence of tendency - proper characterisation of evidence - relevant for another purpose - s 95 Evidence Act - appropriate directions given CRIMINAL LAW - evidence - admission of telephone intercept recordings post-dating offences alleged - appellant not involved in conversations - relevant to the issue of joint criminal enterprise - evidence properly admitted CRIMINAL LAW - application for leave to appeal against sentence - relevance of sentences imposed on co-offenders - no error in assessment of objective seriousness - leave granted - appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Evidence Act 1995
Cases Cited:	Aouad and El-Zeyat v R [2011] NSWCCA 61 Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 Chow v R [2007] NSWCCA 225; 172 A Crim R 582 Clee v R [2009] NSWCCA 18 DAB v R; NJB v R [2010] NSWCCA 275 GAR v R (No 1) [2010] NSWCCA 163 Green v The King [1939] HCA 4; 61 CLR 167 Hristovksi v R [2010] NSWCCA 129 Jones v The Queen [1997] HCA 12; 191 CLR 439 Keller v R [2006] NSWCCA 204 Lawless v The Queen [1979] HCA 49; 142 CLR 659 Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281 M v The Queen [1994] HCA 63; 181 CLR 487 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 MFA v The Queen [2002] HCA 53; 213 CLR 606 Nguyen v R [2007] NSWCCA 249; 173 A Crim R 557 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Birks (1990) 19 NSWLR 677 R v David and Gugea (NSWCCA, 10 October 1995, unreported) R v Fletcher [2005] NSWCCA 358; 156 A Crim R 308 R v Ignjatic (1993) 68 A Crim R 333 R v Kazzi [2008] NSWCCA 77 R v Leung [1999] NSWCCA 287; 47 NSWLR 405 R v Lowe [1984] HCA 46; 154 CLR 606 R v Menzies [1982] 1 NZLR 40 R v Quach [2002] NSWCCA 519; 137 A Crim R 345 R v RWC [2010] NSWCCA 332 R v Tang [2006] NSWCCA 167; 65 NSWLR 681 R v Van Thanh Huynh (NSWCCA, 13 May 1996, unreported) R v Way [2004] NSWCCA 131; 60 NSWLR 168 Ratten v The Queen [1974] HCA 35; 131 CLR 510 Rondel v Worsley [1969] 1 AC 191 SKA v The Queen [2011] HCA 13 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Texts Cited:	Halsbury's Laws of England, 4th edition, Vol 3(1)
Category:	Principal judgment
Parties:	Guo Xiong Chen (Appellant) Regina (Respondent)
Representation:	Counsel: G A Farmer (Appellant) N Noman (Respondent) Solicitors: Elliot Lawyers (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
File Number(s):	2006/12163
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2008-10-30 00:00:00 Before: Hulme DCJ File Number(s): 2006/12163