Chhodaphea Kev and v The Queen and
[2015] VSCA 36
•10 March 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0114
| CHHODAPHEA KEV |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 February 2015 |
| DATE OF JUDGMENT: | 10 March 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 36 |
| JUDGMENT APPEALED FROM: | DPP v Kev (Unreported, County Court of Victoria, Judge Dean, 15 April 2014 (Conviction)) |
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CRIMINAL LAW – Conviction – One count of importation and one count of possession of commercial quantity of a border controlled drug – Following conviction trial judge referred to earlier importation for which a different individual had been convicted – Various similarities between circumstances of earlier importation and allegations against accused – Whether prosecution was obliged to disclose information relating to earlier importation – Mallard v The Queen (2005) 224 CLR 125 discussed – Whether substantial miscarriage of justice – Information incapable of being put to legitimate significant forensic use – Conviction inevitable – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M H Thomas | Grigor Lawyers |
| For the Crown | Mr D D Gurvich | Commonwealth Director of Public Prosecutions |
WEINBERG JA
SANTAMARIA JA:
On 15 April 2014, the applicant and his co-accused, Sambath Sok, were convicted by a jury in the County Court of one charge of importing, and one charge of possessing, a border controlled drug (heroin) in not less than a commercial quantity. The applicant was sentenced, on 19 May 2014, as follows:
Charge Offence Maximum Sentence Cumulation 1 Import commercial quantity of a border controlled drug [Criminal Code (Cth) s 307.1] Life 14 years 9 months Base 2 Possess commercial quantity of a border controlled drug [Criminal Code (Cth) s 307.5(1)] Life 6 years Nil Total Effective Sentence: 14 years 9 months Non-parole period: 11 years Pre-sentence Detention Declared: 130 days
Sok received precisely the same sentence.
The applicant sought leave to appeal against both conviction and sentence. In respect of conviction, he relies on the following ground:
There was a miscarriage of justice caused by the prosecution’s failure to disclose information in its possession, which bore upon whether there was a reasonable hypothesis consistent with innocence of the applicant.
In respect of sentence, the ground relied upon is as follows:
The sentence imposed upon the applicant, in comparison with the sentence imposed upon the co-accused offends the principle of parity.
On 10 November 2014, Priest JA refused leave on both grounds. The applicant has elected to renew his application for leave in relation to both conviction and sentence before this Court.
However, it emerged during the course of the oral hearing that recently Sok had lodged an application for an extension of time, and leave to appeal against sentence. That matter has not yet been determined. In these circumstances, and bearing in mind that the applicant relies solely upon a parity ground, so far as sentence is concerned, the Court considered it appropriate to deal only, at this stage, with the application for leave to appeal against conviction. The challenge to the applicant’s sentence has been put over to be determined at a later date.
Circumstances surrounding the offending
The Crown alleged that the applicant and Sok were parties to a joint criminal enterprise to import into Australia 12.34 kilograms of heroin worth between $6 and $8 million. The heroin was concealed in five parcels containing what purported to be tea or dying products sent from Phnom Penh, Cambodia. Pursuant to the joint criminal enterprise, it was alleged that the applicant (who resided in Sydney) had arranged for the rental of two premises in Melbourne, and that Sok had arranged for the heroin to be sent from Cambodia to those two premises.
The evidence led at trial may be summarised as follows. In February 2012, the applicant rented a room at a house at 309 Corrigan Road, Keysborough (‘the Keysborough premises’), and a one-bedroom unit at 4/135 Athol Road, Springvale South (‘the Springvale South premises’). The Keysborough premises were rented under the name ‘Sophea’, and the Springvale South premises under the name ‘Dara’.
The landlord of the Springvale South premises was a Ms Kim Lee Tan. She gave evidence that, in February 2012, she had placed a rental advertisement for the one-bedroom unit in a nearby Cambodian restaurant. Approximately a week later, she received a telephone call from a man who informed her that he was interested in renting the unit. The man gave his name as ‘Dara’. Arrangements were made for the property to be inspected that evening.
Two men subsequently attended the inspection. Tan described one of them as being approximately 168 centimetres in height, and about 41 or 42 years old. The other was described as being taller, approximately 174 centimetres in height, and younger, aged about 37 or 38. The Crown contended that the applicant was the older of the two men, and Sok the younger.[1] Tan stated that both of the men spoke to her in Cambodian, but added that the younger man did more talking.
[1]In fact, the applicant was born in January 1974, and was therefore aged 38 in February 2012. Sok was born in April 1979, making him 32 at the relevant time.
Throughout February 2012, the applicant and Sok were in constant mobile phone contact with each other, and were both in Melbourne at various times. The applicant was also in regular contact with the landlords of the two premises during this time, for the purpose of renting the respective properties.
Sok departed for Cambodia on 1 March 2012, and returned to Sydney on 2 April 2012. During that time, the applicant was not in contact with Sok’s Australian mobile telephone. However, throughout that month, he made a series of calls to a number of different Cambodian telephone numbers. Included amongst these were calls to a specific number just before, and just after, the five parcels containing heroin were presented at the post office in Phnom Penh for delivery to Australia.
After Sok’s return to Australia, direct phone contact between the applicant and Sok resumed. At the same time, the applicant ceased telephoning any of the numbers, in Cambodia, which he had regularly dialled during March.
Also at that time, Sok commenced to call various Cambodian telephone numbers, including a series of calls made after all five parcels of heroin had arrived in Australia. There was evidence that tracking details of the parcels were available on the internet in the Cambodian language.
On 29 March 2012, several days before Sok returned from Cambodia, the five parcels were presented at a post office in Phnom Penh for delivery by airmail to Australia. Three parcels were addressed to ‘Leap Dara Keo’ at the Keysborough premises. The two remaining parcels were addressed to ‘Meau Leap Heung’ at the Springvale South premises. All of the parcels were purportedly sent by the same sender, ‘Ly Bunatith’, and all were to arrive in Australia via Sydney.
One of the parcels (which was addressed to the Springvale South premises) became separated from the others, and arrived in Sydney on 4 April 2012. The other four parcels arrived two days later, on 6 April 2012. Those four parcels were intercepted by the Australian Federal Police (‘AFP’). Each contained approximately 500 identical plastic sachets marked ‘Ginseng Instant Dyeing’. The sachets were found to contain heroin, in the form of a light brown liquid.
The AFP removed the heroin from the four intercepted parcels. They retained one of the parcels, and replaced the contents of the other three, which were addressed to the Keysborough premises, with an inert substance. A listening device was also inserted into one of the three parcels.
Following the arrival of the parcels in Australia between 4 and 6 April 2012, mobile phone records showed that the applicant and Sok were speaking to each other frequently, in Melbourne, and particularly so on 5 and 6 April 2012. In addition, and importantly, the applicant telephoned Tan on 6 April 2012, that call having been made from the vicinity of the Springvale South premises.
On 10 April 2012, the parcel which had arrived separately on 4 April 2012, and had not been intercepted, was delivered by postal courier to the Springvale South premises. The courier who delivered the parcel, Nebojsa Rusmir, gave evidence that he handed it to the younger of two Asian males present at the unit. He said that that person had indicated he was expecting more parcels.
The Crown contended that the two Asian males present at the Springvale South premises, and to whom the parcel had been delivered, were the same persons that Tan had described having previously met — the younger being Sok, and the older being the applicant. Rusmir also claimed to have seen the same two Asian males on 11 and 12 April 2012, when he delivered other, entirely unrelated, parcels to occupants of a different unit at the Springvale South premises.
On 13 April 2012, an AFP agent posing as a courier delivered three of the remaining four parcels to the Keysborough premises. The delivery was accepted by the landlord, Channa Siek.
At about midday, the applicant was observed by police driving up to the Keysborough premises in a white Toyota utility, and was seen to collect the three parcels. He was then followed by police back to the Springvale South premises. According to the surveillance evidence, he made a detour down a side street, which the police regarded as an attempt on his part to evade anyone following him.
After the applicant arrived at the Springvale South premises, the listening device inserted into one of the parcels recorded a male voice or voices referring to ‘three’ in Cambodian and ‘one more’ in English. The prosecution alleged that this was a reference to the three parcels which had been sent to the Keysborough premises, and collected by the applicant, and to the fact that there was one more parcel, which had been addressed to the Springvale South premises, which had yet to be delivered.
At about 12.30pm, police executed a search warrant at the Springvale South premises. Sok and the applicant were the only persons present in the unit. The three substituted parcels, and their contents, were located in the bath, partially submerged in water. The sentencing judge commented that this may have been done in order to deactivate any listening or surveillance devices that had been placed within them.
A knife with white powder residue (which was later tested and shown to contain heroin of 39.4% purity) was found on the bathroom vanity, along with a plastic lid. Sok’s fingerprints were located on the knife. A black plastic bag containing 530 sachets, which were identical to the sachets located in the four intercepted parcels, was also located in the unit. The Crown alleged that these sachets came from the non-intercepted parcel which had been delivered on 10 April 2012. Subsequent testing of the contents of those sachets found that they contained 2.4 kilograms of pure heroin, and that the liquid substance inside them turned into a white powder when dried.
The applicant elected not to give evidence at his trial. However, Sok chose to testify. The effect of his evidence was that he had come to Melbourne and resided with the applicant because the applicant had promised to arrange a job for him in the construction industry. He claimed that the applicant had supplied him with heroin to smoke, but maintained that he had nothing to do with the importation of any of the five parcels from Cambodia.
Sok’s evidence was that he had been smoking heroin on the morning of 13 April 2012, shortly before his arrest. Analysis of the white powder residue found on the bathroom vanity, and an analysis and experiment conducted on the heroin from the sachets found in the plastic bag from the kitchen cupboard, showed that the liquid heroin, on being dried, contained the same constituents (but a higher concentration) of heroin, and could have come from the heroin found in the kitchen cupboard.
The Ong case
The applicant’s sole ground in support of his proposed appeal against conviction centres on what he claims to have been a failure on the part of the prosecution to disclose to him information relating to the investigation and conviction of another man, Thai Minh Ong, for an offence involving the importation of heroin. The applicant contends that that offence was committed in circumstances which were ‘strikingly similar’ to the allegations made against him.
The facts of the Ong case were as follows. On 15 January 2011, Ong, a Vietnamese national, resident in Sydney, travelled to Melbourne, and began searching for a property to rent. On 21 January 2011, he finalised arrangements to rent a property in Albanvale, a suburb some 19 or so kilometres west of the CBD. Prior to confirming the tenancy, he had attended an inspection of that property with a friend of his, a man named ‘Ho’. Ong later alleged, during his trial, that the importation had been arranged by Ho, possibly in collusion with the landlord of the Albanvale premises. He claimed, in effect, to have been an innocent ‘dupe’.
On 24 January 2011, a package addressed to Ong at the Albanvale property was presented at a post office in Phnom Penh. The consignor was named as ‘Dara’, and a Cambodian address was given.[2]
[2]The name ‘Dara’ is said by the applicant to be significant because it was also the name given to Tan by the man who rented the Springvale South premises from her, and the middle name of the person to whom the Keysborough parcels were addressed: see above [9] and [15].
On 26 January 2011, the package arrived in Sydney. It was intercepted by the AFP. It contained 468 sachets labelled ‘Beauty Star Ginseng instant dye’. Inside each was a quantity of light brown liquid, the total amount of which was later found to contain approximately 6.72 kilograms of pure heroin. AFP officers removed the contents of the sachets, and replaced them with an inert substance.
The sachets involved in the Ong matter were also observed to be similar to those located in a package which had previously been intercepted by the AFP on 14 January 2011, and which also contained heroin. That package had been addressed to a ‘Kenny Thai’ at an address in Fairfield Heights, New South Wales. The consignor details had been almost identical to those recorded on the package addressed to Ong.
On 3 February 2011, the substituted package was delivered to Ong at his Albanvale address. Shortly afterwards, a search warrant was executed, and he was arrested. He was subsequently convicted of attempting to possess an unlawfully imported border controlled drug.
The first reference to the Ong matter
On 15 April 2014, after the applicant had been convicted of the present offences, the trial judge, who, coincidentally, as it turned out, had also presided over the trial of Ong, first referred to that matter. His Honour noted that there appeared to be some similarity between the applicant’s case, and that of Ong. In context, that observation seems to have been prompted by the trial judge’s view that the sentence imposed in the Ong matter might be a useful comparator when considering what sentence should be imposed upon the applicant and Sok. Certainly, there is nothing to indicate that his Honour had any concern, whatsoever, regarding the possibility that the Ong matter may have had some connection with, or tangential relevance to, the case against the applicant.
Up until that precise moment, neither the applicant nor his legal advisers had any knowledge whatsoever regarding Ong’s case. We were told in response to a question from the Court that the same was true of the prosecutor, and those instructing him in this case. They were simply unaware of the Ong matter, and self-evidently did not decide to withhold information regarding that matter from the applicant.
After the trial judge drew attention to the Ong case, the applicant’s legal advisers asked the prosecution to provide them with materials in the Crown’s possession relating to that matter. In response, copies of the indictment, the summary of prosecution opening, and photographs of the sachets were provided. For some reason that is not readily apparent, access to further material was initially refused. However, the Crown subsequently provided the applicant with copies of the trial transcript, the brief of evidence, and disclosure material relevant to Ong’s prosecution.
Applicant’s submissions
Put simply, the applicant submitted that, in view of what he describes as the ‘striking similarities’ between the Ong case, and the allegations made against him, the Crown had been duty-bound to disclose the details of that matter prior to his trial. Its failure to have done so was said to have resulted in a substantial miscarriage of justice.
In support of that submission, the applicant referred to the principle set out in R v Spiteri,[3] adopted by this Court in R v Farquharson,[4] to the effect that the Crown has a duty to disclose material which can be seen, on a sensible appraisal, by the prosecution:
[3](2004) 61 NSWLR 369, [17]–[20].
[4](2009) 26 VR 410, [213].
(a) to be relevant or possibly relevant to an issue in the case;
(b) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or
(c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (a) or (b).
The applicant also relied, in particular, on this Court’s decision in AJ v The Queen.[5] The accused in that case had been convicted of one count of committing an indecent act with a child. On appeal, it was held that the trial had miscarried by reason of the prosecutor’s failure to disclose to the defence the fact that, at an earlier trial of another individual (a man named Pollard) for alleged sexual offences against the very same complainant, she had given certain evidence which the prosecutor in that trial had known to be false, and had expressly conceded to be so before the jury. It was particularly significant that the same prosecutor had conducted both trials.
[5](2011) 32 VR 614.
The applicant drew attention to the judgment of the Court regarding the cogency of the matters which were not disclosed:
Had the Pollard file been disclosed to the defence lawyers prior to the present applicant’s trial it would have yielded information which could potentially have been of forensic use to the applicant’s counsel. At the very least [the complainant] could have been cross-examined as to the sending of text messages to Pollard and as to her earlier denials of having done so. Such cross-examination may have produced an admission, or may have permitted further exploration of the complainant’s credit. This could well have been to the benefit of the current applicant.[6]
[6]Ibid [24] (emphasis added).
The applicant also relied on the Court’s statements regarding the consequences which ought to flow where the prosecution has failed to disclose relevant material:
To lead to a conclusion that a trial is vitiated by non-disclosure it is not necessary for the appellant to demonstrate that the jury verdict would have been different had the obligation been complied with. As Glidewell LJ said in R v Ward:
‘Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.’[7]
[7]Ibid [22] (citations omitted).
The Court went on to approve the following statement of Brennan, Dawson and Toohey JJ in Wilde v R:
Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside. [8]
[8](1988) 164 CLR 365, 372.
The applicant submitted that had his legal advisers been provided with information regarding the Ong trial, he could have made legitimate forensic use of that material in support of his defence.
In his written submissions, the applicant elaborated upon the possible use to which this material could have been put.
First, he submitted that it would have raised the possibility that Sok’s attendance in Cambodia was not a necessary factor in the importation of the heroin. This might have countered the suggestion that the applicant and Sok each had the roles ascribed to them by the prosecution.
Secondly, he submitted that the Ong material would have raised the possibility that the older Asian male of whom Rusmir and Tan spoke could have been the man named ‘Ho’ (who Ong claimed, at his trial, had set him up) rather than the applicant. In its closing address, the prosecution had relied heavily on its suggestion that the applicant had been the older Asian male observed by Rusmir and Tan. In particular, the applicant’s presence with Sok at the Springvale South premises when Rusmir delivered the parcel that had not been intercepted was said to demonstrate that he had knowledge of the importation, and had been party to it.
It should be noted, however, that the defence readily conceded at trial that the applicant had, in fact, been the older male seen by Rusmir and Tan in company with Sok. Indeed, as will be seen, the inference that this was so was overwhelming. Despite that, it was submitted that such a concession might not have been made had the defence been aware of the Ong material.
Thirdly, it was submitted that provision of the Ong material might have allowed defence counsel to explore whether there was any circumstantial evidence linking any of the persons known to be connected with Sok, and the Ong importation (for example, as to their travel movements at the relevant times). It was tacitly contended that this might have cast doubt upon the applicant’s guilt.
Finally, it was submitted that disclosure of that material could have enabled the applicant to argue before the jury that the heroin found on the knife containing Sok’s fingerprints may have been the product of an entirely separate and distinct importation, and did not emanate from any of the parcels that were the subject of the charges on the indictment. It was said that this might have countered the Crown case that the heroin found on the knife, and on the bathroom vanity, was the dried product from the parcel delivered on 10 April 2012. The liquid contents of that parcel had, of course, been found by the police in the kitchen cupboard, when executing the search warrant.[9]
[9]The Crown relied on the combination of these factors to contend that the applicant must have been aware of the heroin found in the kitchen cupboard.
During the course of oral argument, counsel for the applicant raised one additional point in support of his contention that the Ong material might have made a difference, had it been made available. He submitted that the mere fact that there had been a previous importation, carried out in such similar circumstances, would have been of some assistance to the defence.
The submission went something like this. If it could be shown that a similar importation had occurred, to which neither Sok nor the applicant could be linked, that made it inherently less likely that they were involved in this importation.
Crown’s submissions
The Crown denied any breach of its disclosure obligations. Moreover, it argued that the provision to the defence of information relating to the Ong importation could not conceivably have been of any practical utility, or legitimate forensic use, to the applicant at his trial.
In response to the applicant’s written submissions, the Crown argued that the possibility that Sok’s attendance in Cambodia had been unnecessary, in order for the importation to be organised, was an argument that was open, obvious, and could have been made without the provision of the Ong material. Indeed, that very point had been made in cross-examination of the AFP witnesses at trial, and by defence counsel in his closing address.
Secondly, it was submitted that the suggestion that ‘Ho’ could have been the older man referred to by Rusmir and Tan was utterly implausible. This was principally because it was clear, from the evidence led at the Ong trial, that Ho was Vietnamese, and not Cambodian. Indeed, it was said that Ho spoke Vietnamese with a ‘southern accent’. However, the evidence of Tan, and that given by other tenants of the Springvale South premises, was that both the occupants of those premises were Cambodians. Indeed, Tan said that both men spoke Cambodian to her.[10]
[10]See above [10].
Moreover, the Crown submitted that it had been clearly established that the man ‘Ho’ was, in fact, identified as ‘Ho Pham’ who, at that time, lived in an address in Sunshine, and drove a blue Toyota Corolla sedan. The Cambodians who rented the premises in Springvale South were from Sydney, and, as has been seen, drove a white Toyota utility. In addition, Ho was described as 40 years of age, between 170–180 centimetres tall, skinny build, and of dark complexion. Ong was said to have been younger and shorter, about 167 centimetres tall, with a solid build. In the applicant’s trial, it was the older man (claimed to be the applicant) who was said to be shorter than the younger man (claimed to be Sok).[11]
[11]Ibid.
Thirdly, the Crown submitted that although there were obviously similarities between the circumstances surrounding the Ong importation, and that involving the applicant, this was by no means surprising. It was said that Cambodia is a well-known source country for heroin. It was further said that it was by no means uncommon to have parcels of drugs, sent from overseas, delivered to premises rented for that very purpose. It was distinctly possible that whoever it was, in Cambodia, that had supplied the five parcels of heroin to the applicant and Sok had also been involved in the earlier consignment to Ong. The fact that there may have been a common supplier, using a similar technique for the importation of the drugs, in no way negated the overwhelming evidence that the applicant was involved in the importation of these five parcels.
The Crown submitted that there was a good deal of evidence to suggest that, although the two importations may have been linked, as discussed above, they were entirely separate and wholly unconnected enterprises. It pointed to what it submitted were a number of dissimilarities between them.
All those involved in the Ong importation had been Vietnamese. Ong and Ho spoke Vietnamese. So too did the landlord of the property that Ong had rented in Melbourne, and her brother.
By way of contrast, all those connected with the applicant and Sok, including the two owners of the premises which the applicant had rented, were Cambodian.
The Crown further submitted that, so far as the evidence is concerned, the only other person connected with the applicant’s importation was a man named Sar Rithy, who had sent the parcels containing heroin from a post office in Phnom Penh. Rithy had produced his own identification on presenting the parcels, and his fingerprints had been found on one of the delivered parcels. When police in Cambodia spoke to him, he nominated two other Cambodians who may have been involved in the importation. AFP intelligence in relation to those other persons who may have been connected to the importation had been disclosed to the defence.
The next point upon which the Crown relied was that three of the five parcels that were the subject of the applicant’s importation had been addressed to ‘Leap Dara Keo’, a false name, at the Keysborough premises. Once again, by way of contrast, the parcel in the Ong matter had been addressed to Ong personally, at his Albanvale address.
In addition, when the applicant rented a room at the Keysborough premises, he gave his name as ‘Sophea’, but personally collected the three parcels that had been addressed to ‘Leap Dara Keo’. Importantly, the applicant gave his name as ‘Dara’ when he first called Tan to enquire about the Springvale South premises.
The Crown submitted that it was important to note that ‘Dara’ had been the name of the sender of the parcel in the Ong trial, whereas the sender of the five parcels the subject of the indictment against the applicant had given his name as ‘Ly Bunatith’.
In addition, there was a gap of more than a year between the two importations. The parcel in the Ong matter had been sent in January 2011, whereas the parcels sent in the applicant’s case were not delivered until more than a year later, in April 2012.
The Crown submitted that, even if, as a counsel of perfection, and with the benefit of hindsight, the Ong matter should have been disclosed to the applicant, the evidence against him was so powerful that his conviction had been inevitable. Certainly, the trial judge was of the view that the case against the applicant was ‘overwhelming’.
Finally, as regards the submission first advanced during oral argument that the existence of the Ong importation rendered it less likely that the applicant had committed the offences charged, the Crown submitted that if this were so, it would only be true in the most theoretical sense. All that the Ong material showed was that a particular technique for importing heroin had been used on more than one occasion, and that there was probably a common source of supply in Cambodia.
Conclusion
The principles governing the Crown’s duty of disclosure of what is sometimes termed ‘unused material’ are well established. They are set out, conveniently, in the Commonwealth Director of Public Prosecution’s Statement on Prosecution Disclosure at [4.1]–[4.6]. It is unnecessary to replicate them here, but they certainly extend to the provision of all information ‘relevant to the charge/s against the defendant’ which has been gathered in the course of the investigation, and which:
(a) the prosecution does not intend to rely on as part of its case, and
(b)either runs counter to the prosecution case (i.e. points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence, including material which is in the possession of a third party (i.e. a person or body other than the investigating agency or the prosecution).[12]
[12]Commonwealth Director of Public Prosecution’s Statement on Prosecution Disclosure, [4.1].
Although the relevant paragraphs speak of the unused material as having been ‘gathered in the course of the investigation’, there is no reason in principle why information which is in the possession of the Crown, through other sources, but meets the requirements of ‘relevance’ and possible assistance to the defence, should be treated any differently. Certainly, that conforms with the approach taken by this Court in AJ v The Queen.[13]
[13](2011) 32 VR 614.
As far as authority is concerned, one can do no better than examine closely the judgment of the High Court in Mallard v The Queen.[14] The facts of that case are well-known, and need not be set out here. It is sufficient to note that the plurality[15] drew attention to clause 59 of the Statement of Prosecution Policy and Guidelines made and gazetted pursuant to the Director of Public Prosecutions Act 1991 (WA) which relevantly provided:
When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence —
(a) the nature of the information;
(b) the identity of the person who possesses it; and
(c) when known, the whereabouts of the person.
[14](2005) 224 CLR 125 (‘Mallard’).
[15]Gummow, Hayne, Callinan and Heydon JJ.
The plurality went on to say:
At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. As will appear, the evidence which was not produced before or at this trial, was certainly no less cogent than the evidence which was not disclosed in Grey.[16]
[16]Mallard (2005) 224 CLR 125, [17] (citations omitted).
In Grey v The Queen,[17] the appellant, having been convicted of various offences of dishonesty, was unaware of the fact that the main witness against him, whom he alleged had perpetrated the offences with which he was charged, had prior convictions for exactly those sorts of offences. More than that, he was not told that that witness had been given a letter of comfort by the prosecuting authorities in relation to the evidence he would give against the appellant, and that he had received lenient treatment in relation to his own previous offences on the basis that he would give evidence against the appellant in his trial.
[17](2001) 184 ALR 593.
Not surprisingly, the appeal succeeded. The non-disclosure of these matters gave rise to a substantial miscarriage of justice. Had the information in question been made available to the appellant, he would probably have been able to make use of it in evidence-in-chief, but could certainly have used it in cross-examination as to credit.
Returning briefly to Mallard, the undisclosed evidence, which was described as having been ‘suppressed’ by the Crown, was set out in detail by Kirby J under various heads. These include what his Honour termed the ‘pig’s head experiment’, the ‘salt-water experiment’, the ‘missing cap’, the ‘undisclosed sketches’, the ‘locking of eyes’, and the ‘man wearing a bandanna.’ Kirby J summed up the cumulative effect of these non-disclosures in the following terms:
Conclusion: material non-disclosures: A review of the foregoing and other evidence, which was not disclosed to the appellant’s counsel at the trial, but which was in the possession of police and, at the least, available to the prosecution, suggests strongly that material evidence was not disclosed that bore upon the guilt of the appellant of the crime charged in the indictment. Whilst the non-disclosure of one or two of these items (eg items (4) and (6)), taken alone or perhaps together, might not have been sufficient to produce an unreasonable or unsupportable verdict, with a miscarriage of justice in the trial, a consideration of the totality of the unrevealed evidence raises a stark question as to the safety of the appellant’s conviction.
Of particular concern are the items in which evidentiary material, consistent with innocence and presenting difficulties for the prosecutor’s hypothesis of guilt, were actually suppressed or removed from the material supplied to the defence. The important issue of legal principle in this appeal is whether such non-disclosures and suppression deprived the appellant of a fair trial.[18]
[18]Mallard (2005) 224 CLR 125, [57]–[58].
His Honour then considered the position regarding non-disclosure in the United States, and Canada, noting that although such non-disclosure can be excused in particular cases, such as where the evidence is beyond the control of the prosecution, is privileged, or is clearly irrelevant, otherwise a high duty of disclosure has been affirmed. His Honour noted that in the United Kingdom, the common law required disclosure of material in the possession of the prosecution as ‘an incident of a defendant’s right to a fair trial.’[19] He further noted that the position regarding non-disclosure had since been overtaken by the enactment of the Criminal Procedure and Investigations Act 1996 (UK). He referred in that regard to R v Brown,[20] where Lord Hope stated:
The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. … [T]he prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed.[21]
[19]R v Ward [1993] 1 WLR 619, 674.
[20](1998) AC 367.
[21]Ibid 377.
The issue, primarily, is not whether there has been prosecutorial misconduct. It is, rather, whether the non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, has occasioned a miscarriage of justice.
Nonetheless, even Kirby J recognised that in a case of ‘very limited non-disclosure’ which the appellate court concludes affirmatively to have been unlikely to have altered the outcome of the trial, the proviso could be applied as it was in Lawless v The Queen.[22] But he added that in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand.
[22](1979) 142 CLR 659.
It can be argued that, in a perfect world, those employed within the office of the Commonwealth DPP (which office had the carriage of both the Ong matter and the applicant’s trial) would have been aware that there were some common features between the two cases. At a theoretical level, it might have been prudent, in such circumstances, to have drawn attention to the existence of the earlier importation.
At the same time, we were told, and there is no reason to doubt this, that no one within the Melbourne office of the Commonwealth DPP actually perceived any connection between the two cases. In other words, it never crossed anyone’s mind to ‘connect the dots’ in relation to these two matters. That is understandable. It was, as we have said, sheer coincidence that the same judge presided over both trials, and it is significant that his Honour saw no connection between the two cases, save for using Ong as a comparator for sentencing purposes.
The real problem that confronts the applicant is that it is difficult to see how the Ong material could have provided any legitimate assistance to his defence. The idea that, had he known of that material, he could have mounted a case that he was not the person who rented the premises borders on the fanciful. So too does the idea that he was not one of those present when the parcel was delivered on 10 April 2012. With regard to those matters, the telephone records spoke for themselves, as did the other facts led as part of an extremely strong Crown case. It was no surprise that the applicant effectively conceded these matters at his trial. The Ong material would have made no difference.
The theory, now proffered, that ‘Ho’ could have been blamed for some involvement in this offence is equally without foundation. The evidence made it clear that the two males who were involved in this offending were both Cambodian. There is not the slightest chance that a jury might have given credence to the contention that Ho, and not the applicant, had been the older of those two men.
The notion currently being floated, on the basis of the Ong material, that the heroin attached to the knife that had Sok’s fingerprints on it might have come from a consignment of heroin that had been imported perhaps a year or so earlier, and was entirely unconnected to the five parcels at the centre of this case is equally derisory.
While it might be said that defence counsel at trial, if minded to do so, could have sought to use the Ong material as a ‘red herring’, designed simply to distract the jury from their task, that plainly is not the sense in which the authorities speak of the obligation resting upon the Crown to disclose information that ‘may be exculpatory.’ Any such material must be relevant, capable of giving rise to legally admissible evidence, and legitimately able to be invoked as exculpatory material. The Ong material does not meet these requirements. In those circumstances, the short answer to the applicant’s case is that the Crown was not under any obligation to disclose any of that material.
However, even if we were wrong about that, and the Ong material could in some mysterious but legitimate way have assisted the defence, the authorities make it clear that failure to comply with a disclosure obligation will not give rise to a substantial miscarriage of justice where the evidence is so overwhelming that a conviction is inevitable.[23]
[23]Lawless v The Queen (1979) 142 CLR 659; Wilde v R (1988) 164 CLR 365, 372
The case against this applicant was, in truth, an absolutely cast-iron one. It is impossible to see how the disclosure of the Ong material could conceivably have made any difference to the outcome. The various explanations proffered on behalf of the applicant as to how this material could legitimately have been used to his benefit are, when carefully scrutinised, entirely devoid of merit.
For these reasons, we would refuse leave to appeal against conviction.
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