Chen v The Queen
[2017] VSCA 335
•17 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0242
| GUANG CHEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN, WHELAN and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 17 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 335 |
| JUDGMENT APPEALED FROM: | DPP v Chen & Anor (Unreported, County Court of Victoria, Judge Ryan, 13 June 2014) |
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ELECTION TO HAVE APPLICATION FOR EXTENSION OF TIME DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 313(2) OF THE
CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Leave to Appeal – Conviction – Application for extension of time – Election to renew application – Interests of justice – Delay – Merits of proposed appeal – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
No Oral hearing. By consent the matter was decided having regard to the written materials filed by the parties.
OSBORN JA
WHELAN JA
ASHLEY JA:
On 26 May 2014, Guang Chen (conveniently ‘the applicant’) was found guilty after an eight day trial in the County Court of attempting to traffick in not less than a commercial quantity of pseudoephedrine (charge 1) and of trafficking in not less than a commercial quantity of pseudoephedrine (charge 2). On the same day, Zi Chen, the applicant’s son, was convicted of attempting to possess pseudoephedrine (charge 3). Three days later, Zi Chen pleaded guilty to dealing with money reasonably suspected of being the proceeds of crime, the amount in question being $42,000 (charge 4).
On 13 June 2014, after a plea in mitigation, the trial judge sentenced the applicant to seven years’ imprisonment on charge 1 and to five years’ imprisonment on charge 2. He ordered that two years of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. The total effective sentence was thus nine years’ imprisonment. The judge fixed a non-parole period of six and a half years’ imprisonment.
On the same day, the judge sentenced Zi Chen to a community correction order for a three year period with conditions on charge 3, and to a community correction order for a two year period with conditions on charge 4.
The applicant sought leave to appeal against sentence. Priest JA granted leave on 5 November 2014. The appeal was eventually heard on 14 September 2015. By that time, the applicant had engaged and thereafter dispensed with the services of three firms of solicitors. Of this, more later. In the event, his appeal was allowed and a total effective sentence of six years’ imprisonment was imposed, with a non-parole period of four years.
On 16 November 2016 — that is, some two and a half years after the jury had returned its verdict — the applicant filed four documents. Thus —
(a)an application for an extension of time to file notice of application for leave to appeal against conviction, evidently prepared by the applicant himself. It ran to 59 paragraphs, providing a chronology of events and specifying 17 proposed grounds of appeal;
(b)an application for leave to appeal against conviction, again prepared by the applicant, setting out the 17 proposed grounds of appeal;
(c)a written case, which developed at some length each of the proposed grounds of appeal; and
(d)an affidavit of the applicant sworn 16 November 2016 in support of the application for an extension of time. It addressed, and sought to explain, the applicant’s delay in seeking to pursue an appeal against conviction. It did not address the various subject matters stated in the proposed grounds of appeal.
The Crown opposed the application for extension of time. It relied upon the affidavit sworn 22 December 2016 of Ben Kerlin, a solicitor employed in the Melbourne office of the Commonwealth Director of Public Prosecutions.
On 9 January 2017, Judicial Registrar Irving refused the application for extension of time.
On 12 January 2017, the applicant elected to have his application for extension of time determined by the Court of Appeal.
On 20 February 2017, the Crown filed a written case in response to the applicant’s application for leave to appeal against conviction. That case, like Mr Kerlin’s affidavit, addressed the substance of the proposed grounds of appeal.
The applicant’s notice of election stated that he wished to have an oral hearing, that he would be represented by counsel, and that he wished to appear by audio-visual link at the oral hearing. But in September this year, after a date for hearing had been fixed, the applicant sought an adjournment until mid-2018. Correspondence with the Registry shows that the applicant did not wish to proceed until complaints which he had made to the Legal Services Commissioner about the conduct of his lawyers from time to time in connection with this matter had been resolved. Indeed, he indicated preparedness to wait until after the non-parole period of his sentence had expired (it will do so on 25 May 2018), at which time he might have been granted parole. His expressed concern was to clear his name, whether or not he was then at liberty.
The Registry intimated to the applicant that his adjournment request was unlikely to be granted. Thereupon, on 22 September 2017 the applicant indicated a desire that his application be dealt with on the papers. He further indicated, on 23 September, that he wished to file a further affidavit. The Registry responded on 25 September, saying that any affidavit should be filed by 16 October 2017. No further affidavit was filed by that date, or thereafter.
Circumstances of offending generally described
The Crown case against the applicant, which must have been accepted by the jury, was to this effect: on 9 May 2011, a parcel arrived in Australia in the post from China. It was sent through DHL and was addressed to Tao Tang of Unit 2/26 Park Street, Footscray. The contents of the parcel (‘the DHL parcel’) were described as ‘stainless steel kitchen supplies’. The parcel was x-rayed by the Australian Customs Service. Hidden inside the handles of 32 items in the parcel was found 1,673.7 grams of pink and yellow granules identified as ContacNT, a cold and flu medicine from China which contained pseudoephedrine. The granules contained 535.89 grams of pure pseudoephedrine, this considerably exceeding the commercial quantity threshold. The granules were removed and the utensils and box were prepared for a managed delivery.
The delivery was made on 16 May 2011, the parcel being handed over to Tao Tang, who signed for it. As it turned out, Tao Tang had also taken possession of another parcel which had been imported into Australia from China using the FedEx parcel transport system (‘the FedEx parcel’).
On the same day that the managed delivery was made of the DHL parcel, the applicant attended at Tao Tang’s unit and collected items from both the parcels. There was evidence that the applicant had been in telephone contact with Tao Tang on both 15 and 16 May 2011. As to contact on 16 May, that evidence was not without its difficulties. Of this, more later.[1]
[1]See [33] below.
In any event, the applicant took the items which he had collected to his home. The following day, his son delivered them to the applicant’s business, ‘Captain Chook’ in Werribee.
On 25 May 2011, customs officers and members of Victoria Police executed warrants at the applicant’s home and at Captain Chook. At the applicant’s home were found items from the two parcels. The ends of the items from the FedEx parcel had been cut off. There remained traces of pink and yellow granules of ContacNT.
Also found at the applicant’s home were stainless steel pots from the DHL parcel which had contained ContacNT granules; and, under a coffee table, 13 blister pack sachets each containing ten capsules of ContacNT.
A search of a vehicle owned by the applicant revealed pink and yellow granules in the boot. They resembled ContacNT and upon examination the granules were found to contain pseudoephedrine.
In a clean recycling bin at the rear of the Captain Chook premises, inside a black plastic bag, investigators found blister pack sachets containing 2,722 capsules of pink and yellow granules which were identical to the sachets found at the applicant’s home address. They also found –
(a)two stainless steel pots from the DHL parcel, the ends of the handles of which had been removed, and which had previously contained ContacNT granules;
(b)a number of items from both parcels in a bucket in a shed at the rear of the premises. The utensils from the FedEx parcel were found to contain traces of pink and yellow granules, confirmed to contain pseudoephedrine;
(c)bubble wrap with pink and yellow granules attached. The bubble wrap was consistent with the wrapping of each of the items from the DHL and FedEx parcels;
(d)a set of scales able to make measurements to a fraction of a gram; and
(e)a mobile phone, registered in the name of ‘Jack Kong’, which had been used to contact Tao Tang’s mobile telephone.
The Crown relied upon the applicant’s acquisition of the parcels in proof of charge 1.[2] With respect to charge 2, the Crown relied upon the blister pack sachets found in the recycling bin at the rear of the Captain Chook premises. The capsules, we add, were found to contain 193.4 grams of pure pseudoephedrine.
[2]Obviously, the contents of the DHL parcel were relied upon to establish the commercial quantity of the attempted trafficking.
The applicant’s case, always remembering that he carried no onus, was apparently that he picked up the parcels unaware of their hidden contents; and that he knew nothing about the blister pack sachets found in the recycling bin, which was accessible to other shop owners and to the public more generally.
Relevant considerations
In Madafferi v The Queen,[3] this Court summarised the current understanding of the law relating to the grant or refusal of extension of time:
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[4] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[5] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[6] the length of the delay — and the reasons for it[7] — and the prospects of success should the extension be granted,[8] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[9] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[10] The discretion must, as we have said, be exercised according to the individual facts of each case.[11] [12]
[3][2017] VSCA 302.
[4]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[5]Ibid 707 [60].
[6]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[7]Ibid 614 [31].
[8]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).
[9]Jopar (2013) 44 VR 695, 707 [60].
[10]Ibid.
[11]Ibid.
[12]Madafferi v The Queen [2017] VSCA 302 [11].
To what the Court there said, and pertinent to the need for finality in litigation, we should add what the plurality said in Kentwell v The Queen:[13]
…at least in the case of an out of time challenge to a sentence that is being served, the principal of finality does not provide a discrete reason for refusing to exercise the power.[14]
[13](2014) 252 CLR 601.
[14]Ibid 614 [32] (French CJ, Hayne, Bell and Keane JJ).
Application of relevant considerations to the present case
The two matters principally addressed by the parties were delay and the merits or otherwise of the proposed appeal. We deal with them in that order.
Delay
It is the simple fact that the application to extend time for seeking leave to appeal against conviction, and the application itself, were not filed until the elapse of about two and a half years from the time of the jury’s verdict. That, unarguably, was a lengthy delay. The applicant attempted to explain it in his application for an extension of time and in his affidavit sworn 16 November 2016. The gist of the matters upon which he relied were these:
(1)At the time of trial, and thereafter for a period, he spoke very limited English and was unable to read English. Communications at trial were made through an interpreter and thereafter by his English-speaking daughter.
(2)Through his daughter, he initially contacted Galbally Rolfe, solicitors, giving instructions that they should file applications for leave to appeal against both conviction and sentence. But they did not file an application for leave to appeal against conviction.
(3)Thereafter, his daughter on his behalf engaged another firm of solicitors, Balot Reilly Solicitors, instructing them to lodge an application for leave to appeal against conviction. But they did not do so.
(4)Then his daughter engaged a third firm of solicitors, George Vassis & Co, with instructions that they lodge an application for leave to appeal against conviction. Those solicitors gave him conflicting advice as to what his appeal options were. In the event, he dispensed with their services on 9 September 2015, that being very shortly before his sentence appeal was heard.
(5)Having no funds, and Victoria Legal Aid not providing assistance, he thereafter commenced to act on his own behalf. However, he faced language difficulties, internet facilities at the prison where he was interned were deficient, he had no access to ‘legal books, cases and legislation’ to assist in preparing his case, there were difficulties in obtaining copies of exhibits from his trial, and there were lengthy delays in him obtaining a transcript of counsels’ closing addresses at trial (delay referable to this last matter extending between October 2015 and 29 June 2016). Thereafter, it took him several weeks to listen to an audio tape of the trial.
A number of aspects of this explanation were either unsupported, or controversial:
(1)There was no material from Galbally Rolfe to confirm that it had been instructed to lodge an application for leave to appeal against conviction.
(2) The firm of Balot Reilly Solicitors requested a copy of a ruling of the trial judge given on 9 May 2014. The transcript of the trial for that day was provided by the Registry on 29 October 2014.[15] The request was specific, and was sought by counsel who had been retained to advise on the prospects of a conviction appeal. It seems highly likely that the request related to the ruling in which the trial judge refused to sever the indictment. The matter went no further.
[15]Affidavit of Benjamin James Kerlin sworn 22 December 2016 [20]. In fact, the judge gave two rulings that day, and both were attached to the Registry’s covering email.
(3)On 17 March 2015, the principal of Vassis & Co advised the Registry that he had been asked for some legal advice in relation to a possible conviction appeal. Mr Vassis asked whether it was possible to obtain ‘the whole of the trial transcript’.[16] The Registry replied that it only had the transcript of the plea and sentence, and that the solicitor would have to take other steps to obtain the transcript. On 7 May 2015, Mr Vassis informed the Registry that he had attempted to brief two senior counsel to advise with respect to a possible conviction appeal, but that they had been unable to assist because of other commitments. But then, on 16 June 2015, Mr Vassis informed the Registry that ‘there will be no application for leave to appeal against conviction, out of time or otherwise, in this matter’.[17]
[16]Ibid [36].
[17]Ibid [47].
(4)On 8 September 2015, the applicant emailed the Registry and the Commonwealth Director of Public Prosecutions stating:
It is my intention to now appeal against both sentence and conviction. The basis of the appeal against conviction is that I have fresh evidence to present to the court that I consider will establish my innocence.
The applicant added that he was currently in the process of seeking new representation for his appeal.
(5) On 10 September 2015, the applicant’s daughter wrote to the Registry, stating:
Desperate, I then had to contact the Court Services of Victoria to try and obtain the transcripts myself, which I did on the day. The following week the transcripts were provided to my dad, and he did not receive it until the following days.’[18]
These events apparently occurred shortly after 4 September 2015.
(6) Thereafter, the applicant sought transcript of the closing addresses. As we have said earlier, those addresses were eventually provided, in audio form, on 29 June 2016. We add that the judge had provided the applicant with a copy of his charge under cover of a letter dated 9 June 2016.
[18]Ibid [79].
In all, the applicant’s requirement that he be provided with transcript expanded over time. It began in October 2014, with a request for a particular ruling by the trial judge. By mid-2015, it had become a request for all the transcript. When all the transcript, but not including counsels’ closing addresses, had been provided to the applicant — this occurring in September 2015 — the applicant then pressed for transcript of the closing addresses. The applicant’s letter dated 8 September 2015 stated that the basis of his appeal against conviction was fresh evidence. It is difficult to see how these expanding requests for transcript could relate to that. In any event, this was an exercise that could have been instituted very much earlier had an application for leave to appeal against conviction been filed within time. Had such an application been filed, then in the ordinary course the Registry would have obtained necessary trial transcript together with the judge’s charge.
Notwithstanding the applicant’s asserted difficulty in understanding the English language and in communicating instructions at the time of his conviction and in the immediate aftermath, we do not regard his explanation for the delay in making application for leave to appeal against conviction as persuasive. To the contrary, if it was the fact that, through his daughter, he gave instructions to the firm of solicitors first engaged to file an application for leave to appeal against conviction, then his failure, through his daughter, to pursue the matter and ensure that such an application was lodged was far from satisfactory. The same observation may be made with respect to the solicitors who were second retained. Further, the applicant has not explained the statement by Mr Vassis in June 2015 that an application to appeal against conviction was not to be pursued.
The merits of the proposed appeal
As we have earlier noted, the applicant’s application for leave to appeal against conviction specifies 17 proposed grounds. The written case which he filed outlined the way in which he sought to support each of those grounds. The respondent’s written outline also addressed each of those grounds.
It is impossible, in the absence of full argument, to be definitive as to the merits of the proposed appeal; but it is possible to reach a reasonably firm opinion as to the likely merits of the matter. In our opinion, so considered, the grounds of appeal range from hopeless to speculative. The case is not one in which, in our opinion, the likely strength of an appeal requires, notwithstanding substantial delay, that time be extended in the interests of justice.
We should explain our conclusions.
Ground 1 contends that the finding of guilt on charge 2 was unsafe and unsatisfactory. The gist of the applicant’s argument is that the blister pack sachets found in the recycling bin at the rear of the Captain Chook premises could have been placed there by anyone. The Crown’s response is that the bin holding the sachets was at the rear of the applicant’s shop; that the bag containing the sachets was next to utensils recently collected by the applicant, some of which contained traces of pseudoephedrine and some of which had contained pseudoephedrine; that other utensils, some of which had contained pseudoephedrine or contained traces thereof, those utensils having also been collected by the applicant, were found at his shop and home; that identical capsules of ContacNT were found at his home; that similar granules containing pseudoephedrine were found in the lining of a motor vehicle registered to the applicant and driven by him; and that there were electronic scales at his shop, capable of weighing small quantities. The Crown contends that this was not a situation in which a jury must, as contrasted with might, have entertained a doubt as to the applicant’s guilt. That seems to us to be a very cogent submission.
Grounds 2, 3, 4 and 5 relate to two phone calls made between a mobile phone belonging to the applicant and a mobile phone belonging to Tang Tao on the evening of 16 May 2011. They were made shortly before the applicant in fact picked up the DHL and FedEx parcels from Tang Tao. There was evidence at the trial suggestive that although the calls were made from the applicant’s phone, they were not made by him. The matter was thoroughly agitated at trial. As the Crown observes in its submissions, even if the calls were not made by the applicant, they were made from his phone, and that was capable of bearing upon the case against him.
Ground 6 complains about the judge’s refusal to sever charges 1 and 2. This was the ruling apparently sought by the Balot Reilly Solicitors. The ruling was provided. It did not lead to those solicitors initiating any application for leave to appeal against conviction, albeit out of time.
Grounds 7 and 8 complain of failure by the prosecution to provide the applicant with a full transcript of a record of interview between Customs officers and Tang Tao, and to provide a full transcript of a chat group involving Tang Tao and a person named Chao Sun. The Crown’s response is that there was no failure to provide full transcripts. The applicant’s complaint incorporates an allegation that what was provided was provided in English, which he did not understand. According to the Crown’s response, the chat group log was provided both in Chinese and with an English translation.
Grounds 9, 10, 11 and 12 complain that the applicant’s solicitors and counsel at trial were negligent in various ways. The grounds embrace the lawyers’ asserted failure to obtain full transcripts of the Tang Tao record of interview and the chat group transcript. There is also a complaint that the lawyers failed to engage a sufficiently skilled interpreter and, by ground 12, that there was a failure to call relevant witnesses. The witnesses are identified as the applicant’s wife, son, daughter, an unidentified customs officer, an unidentified local council officer, a Bendigo Bank officer, a neighbour, the purchaser of a business conducted by the applicant in Flemington, and Tang Tao.
This list of witnesses negligently not called interrelates with an assertion by ground 16 that the applicant is seized of new and fresh evidence which will establish his innocence. Read together, it is crystal clear, in our opinion, that what is asserted by ground 16 to be fresh evidence is not fresh evidence at all. It is the evidence that the witnesses not called, due to the asserted negligence of the legal advisors,[19] would have given. This is made clear when the submissions in support of grounds 12 and 16 are read together. This evidence was known to the applicant at the time of the trial. The complaint in ground 12 is that the lawyers were negligent by failing to call that evidence. It cannot be fresh evidence.
[19]The lawyers could hardly be blamed for not calling Tang Tao, who had been out of the country for three years at time of trial.
As to ground 12 itself, concerning the failure of counsel to call the identified witnesses, such grounds are difficult to make good. In TKWJ v The Queen, Gleeson CJ said:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice.[20]
[20](2002) 212 CLR 124, 130–131.
The Crown submission on this proposed ground points out that no affidavit material supporting the assertion of negligence has been filed. That is correct. The Crown submits that, in any event, the evidence proposed to be relied upon was of marginal relevance, or not such as to lead to a conclusion that there had been a miscarriage of justice. While it is not possible to fully assess the potential relevance of evidence not called in the context of an application of this kind, that submission seems to have substance.
There is no basis for a conclusion that there is potential merit in this proposed ground.
Ground 13 is a complaint that the prosecutor misled the jury in his final address by ‘advising’ it that the applicant had two mobile phones in his possession in the early evening of 16 May 2011. There seems to be nothing to the point. The applicant was apparently observed making phone calls at the relevant time, but not from, it seems, the phone referred to in grounds 2, 3, 4 and 5. It was in those circumstances, so the Crown submits, that the prosecutor postulated the possibility that the applicant was in possession of two phones at the time.
Ground 14 complains that the applicant was prejudiced because custom officers failed to conduct a fingerprinting analysis of various incriminating items, and of the recycling bin in which the blister pack sachets of capsules were found. The Crown’s response is twofold: the reason for failure to conduct fingerprinting was explained at trial; and applicant’s counsel used this circumstance to his intended advantage at the trial.
Ground 15 complains that the applicant was denied natural justice because Tang Tao was not prohibited from leaving Australia before the trial. The Crown’s response is that he left Australia in June 2011, there being no demonstrated basis to keeping him in the country. Unless he had been charged in relation to the particular drugs offending, and he was not, that seems to be correct.
Finally, by ground 17, the applicant complains that the judge erred in his charge by directing the jury that the applicant owned two vehicles. The true position was apparently that the two vehicles were registered in his name, which might not amount to the same thing. It would be, with respect, a trifling error, if error it was.
It will be remembered that on 8 September 2015 the applicant wrote to the Registry and the Commonwealth Director of Public Prosecutions stating that the basis of his proposed appeal against conviction was that he had fresh evidence to present to the Court that he considered would establish his innocence. As proposed by ground 16, read together with ground 12, that assertion would be doomed to failure. Other than that, it is evident that a meticulous examination of the transcript of the trial, including counsels’ final addresses and the judge’s charge, has enabled the applicant to assemble a long list of alleged errors and deficiencies, none of which, on such examination as is possible, seems to be of much substance.
Conclusion
In our opinion, in the circumstances which we have described at some length, the interests of justice would not be served by extending the time within which the applicant might apply for leave to appeal against conviction. The application to extend time should be refused.
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