Chong v The Queen - [2020] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHONG -v- THE QUEEN [2020] WASCA 143
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   21 JULY 2020
DELIVERED          :   4 SEPTEMBER 2020
FILE NO/S:   CACR 144 of 2018
BETWEEN:   YUEN KUAN CHONG
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Drug offences - Appeal against conviction - Whether miscarriage of justice arose from a wrong direction that evidence relied on by the accused was not relevant to the issues the jury were required to consider - Whether comments on the evidence made by the trial judge in his charge to the jury gave rise to a miscarriage of justice - Whether comments undermining counsel of the accused's submissions constituted a failure by the trial judge to fairly put the defence case to the jury

Legislation:

Criminal Procedure Act 2004 (WA), s 112

Result:

Leave to appeal granted
Appeal allowed
Conviction set aside and retrial ordered

Category: A

Representation:

Counsel:

Appellant	:	S J Oliver
Respondent	:	D L Renton & J A Johnston

Solicitors:

Appellant	:	Sarah Oliver
Respondent	:	Director of Public Prosecutions (Cth)

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

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Domican v The Queen (1992) 173 CLR 555
Galipo v The State of Western Australia [2019] WASCA 188
Green v The Queen (1971) 126 CLR 28
Maher v The State of Western Australia [2010] WASCA 156
Mamood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Mareangareu v The Queen [2019] VSCA 101
McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307
Phan v The State of Western Australia [2019] WASCA 131
Pyliotis v The Queen [2020] VSCA 134
R v Emes [2019] SASCFC 75
R v Meher [2004] NSWCCA 355
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

TABLE OF CONTENTS

Summary

The prosecution case generally

The prosecution case against the appellant

Appellant's case at trial

Evidence at trial

Defence counsel's submissions

The trial judge's directions

Role of judge and jury

Detective Sergeant Fogell's evidence

Elements of the offences

Summary of evidence on which the Crown relied

Summary of appellant's counsel's submissions

Directions about Ms Ward's evidence

Counsel's submissions about the direction as to Ms Ward's evidence

Ground of appeal to this court

Issues for determination

Misstatement of fact as to 'large containers'

Appellant's submissions

Respondent's submissions

Disposition

Direction as to relevance of Ms Ward's evidence

Appellant's submissions

Respondent's submissions

Disposition

Effect of the direction

Relevance of Ms Ward's evidence

The later direction did not correct the error

Conclusion

Alleged failure to fairly put the defence case to the jury

Appellant's submissions

Respondent's submissions

Directions to juries - general principles

The approach required by McKell

Disposition

Orders

JUDGMENT OF THE COURT:

Summary

In McKell v The Queen,[1] the plurality of the High Court said that the risk of unfairness arising from a trial judge making comments suggesting how a disputed question of fact should be resolved is such that the risk should not be courted. In the present case, the trial judge charged the jury prior to McKell being decided. His Honour made observations as to disputed questions of fact in that charge. His Honour's summing up, taken as a whole, failed to fairly put the defence case to the jury, and contained unnecessary observations that had a tendency to persuade and might have persuaded the jury of the appellant's guilt. It is likely that the trial judge would not have made the observations impugned in this appeal if his Honour had charged the jury after McKell was decided. Unfortunately, in the present case, the risk to which the High Court referred did materialise and resulted in a miscarriage of justice. This appeal, which is to be decided by reference to the principles articulated in McKell, must therefore be allowed.
[1] McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307.
On 14 December 2017, the appellant was convicted, after trial by jury, of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine. On 26 June 2018, the appellant was sentenced to 17 years 3 months' imprisonment, with an 11 year 3 month non-parole period.
The offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel. The appellant was one of the persons present at the landing site who collected 15 large bags containing the methamphetamine and transported them to the Perth metropolitan area. 182 kg of methamphetamine from the fishing vessel was subsequently seized by police from two locations in Cannington and Embleton.
Recorded interviews of the appellant with police were played at trial. In those interviews, the appellant in effect admitted that he came to Australia for the purpose of participating in a smuggling operation. He admitted scouting and attending the landing site with others to collect the bags brought in by the tender. However, the appellant claimed that he thought that they were smuggling tobacco rather than illicit drugs. The Crown submitted that this was an inherently implausible account given the large scale and expense of the operation and the value of 182 kg of tobacco in Australia (about $191,000).
There were three legs to defence counsel's submissions in support of the defence case that there was a reasonable possibility the appellant thought he was smuggling tobacco rather than a border controlled drug:
(1)The evidence did not support a conclusion that the appellant was aware of the full scale of the importation operation, so the jury could not be satisfied he was aware that the expense involved in the entire operation was disproportionate to the potential profit.
(2)The evidence of a Border Force officer, Ms Michelle Ward, was to the effect that smuggling tobacco into Australia was a significant issue for authorities and could generate large profits. This objective circumstance suggested that it was not inherently implausible that the appellant may have thought they were smuggling tobacco.
(3)The evidence of a police officer, Detective Sergeant Michael Fogell, was to the effect that one of the reasons organised crime operates on a hierarchical structure is to limit the knowledge and information at different levels of the hierarchy. He agreed that the drug trade relies on secrecy, which could include secrecy within its own ranks and that on occasion people might be unknowingly involved in the drug trade. This evidence made it more likely that those who engaged the appellant may have given him false information about what was being imported and less likely that the appellant's asserted belief was inherently implausible.
In his charge, the trial judge in effect told the jury that the evidence of Ms Ward was irrelevant, and the evidence of Detective Sergeant Fogell on which the defence relied could be considered speculative and outside his expertise. The first of those observations was capable of being regarded as a direction the jury was required to follow, rather than a comment which the jury was entitled to disregard.
The appellant appeals against his conviction on the sole ground that a miscarriage of justice was occasioned by the trial judge making comments in relation to the relevance of Ms Ward's and Detective Sergeant Fogell's evidence, which materially prejudiced the appellant as they unfairly affected the jury's assessment of his defence to the charge. The application for leave to appeal on that ground was referred to the hearing of the appeal.
In our view, the ground of appeal is established on two bases. First, the trial judge's observation as to the relevance of Ms Ward's evidence was erroneous. The observation could reasonably have been taken to be a direction. The observation involved a wrong decision on a question of law and occasioned a miscarriage of justice. Second, the trial judge failed to discharge the obligation to fairly put the defence case to the jury. The effect of his Honour's observations as to the relevance of Ms Ward's evidence and his Honour's comments in relation to Detective Sergeant Fogell's evidence was to cut the second and third legs identified at [5] above out from under the defence case. His Honour's observations and comments tended to undermine those closing submissions, which were open for defence counsel to make on the basis of the evidence before the jury. The observations and comments were unnecessary for a fair and accurate summary of the cases presented by each of the parties. They were apt to create a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments made with the authority of the judge in favour of the prosecution. This constitutes a miscarriage of justice in the circumstances.
Therefore, we would grant leave to appeal, allow the appeal, set aside the appellant's conviction and order a retrial.

The prosecution case generally

The prosecution case was that a tender launched from a fishing vessel landed at least 182 kg of methamphetamine at a location about 30 km south of Port Denison in Western Australia at about 5.30 am on 1 May 2016.[2]
[2] Trial ts 265.
Waiting at that location were the appellant and three other persons - the appellant's co-accused Fook Choi Ching and Chee Seng Tang, as well as Kian Kee Tan. Mr Tan, who was also referred to as 'Fat Boy', departed Australia before being arrested and was not charged with any offence. The men had three vehicles at that location - a red Mitsubishi hired by the appellant, a white Ford Ranger registered to the appellant and a white Mitsubishi Triton registered to Tang.[3]
[3] Trial ts 265.
The methamphetamine was contained in 15 black bags, 14 of which were loaded into the vehicles at some time between 5.15 am and 6.15 am on 1 May 2016. One of the black bags containing methamphetamine was inadvertently left on the beach. The vehicles drove in convoy towards Perth, and were sighted at Caltex Service Station in Jurien Bay at 6.34 am on 1 May 2016.[4]
[4] Trial ts 265 - 266.
The vehicles proceeded to the Wilbinga rest stop, located about 70 km north of the Perth central business district. There the men met the appellant's co-accused Kinboon Yong and Teck Kong Wong. Mr Yong and Mr Wong had driven to the Wilbinga rest stop in a Toyota Hilux. Mr Yong drove a vehicle containing the 14 bags of methamphetamine back to Perth, while Mr Wong drove back in the Hilux.[5]
[5] Trial ts 272.
At some point, the men realised that they were missing one of the 15 black bags. A vehicle returned to the landing site and retrieved the bag, which had not been discovered.[6]
[6] Trial ts 266.
On 15 May 2016, police observed Mr Yong and Mr Wong meet Mr Ching and the appellant at a carpark at the Carousel Shopping Centre. Mr Ching and the appellant were followed back to their residence at an address in Thornlie. A search warrant was executed at the Thornlie address on 20 May 2016.
Search warrants were also executed at other addresses. On 21 May 2016, about 131 kg of methamphetamine (105 kg pure weight) was located at an address in Cannington that had been leased by Mr Yong. On 23 May 2016, about 51 kg (40 kg pure weight) of methamphetamine was located at an address in Embleton occupied by the Yokay Chan Chin (who pleaded guilty to an offence and was not tried with the appellant and his co-accused).[7]
[7] Trial ts 281 - 282.

The prosecution case against the appellant

The prosecution case was that the appellant arrived in Australia on a flight from Kuala Lumpur at Coolangatta Airport, Queensland on 13 January 2016. He entered Australia on a tourist visa which expired on 13 April 2016 and was not renewed. In his incoming passenger card, the appellant indicated that he was on a 7 day holiday and his intended address was 'Backpackers Surfers'.[8]
[8] Trial ts 297.
On 14 January 2016, the day after arriving in Australia, the appellant opened a St George Bank Account. Between 14 January 2016 and 13 May 2016, $13,250 was deposited into that bank account through automatic teller machines.[9]
[9] Trial ts 297.
On 30 January 2016, the appellant made an online booking for himself and Mr Tan to fly from Sydney to Perth. The two men flew from Sydney to Perth on 6 February 2016.[10] On that day, the appellant and Mr Tan paid $4000 upfront for a lease of the Thornlie address, which they occupied from that day.[11]
[10] Trial ts 298.
[11] Trial ts 298.
On 12 February 2016, the appellant, Mr Tan and two other Asian males paid $16,010 in cash for the Ford Ranger that was registered in the appellant's name. The appellant also rented other vehicles, some of which travelled distances consistent with the vehicles being driven from Perth to the landing site and back.[12]
[12] Trial ts 298.
A phone subsequently found in the appellant's possession connected with phone towers in the Port Denison Area at around 5.18 am on 1 May 2016. Later on that day, it connected with a phone tower in the Thornlie area.[13]
[13] Trial ts 298.
The appellant's DNA was found on cigarette butts found at the landing site.[14]
[14] Trial ts 299.
When the Thornlie address was searched on 20 May 2016, police located the following items in the appellant's bedroom:[15]
(1)Receipts for items purchased at the Caltex Service Station in Jurien Bay on 17 February 2016 (which was the date on which a handheld GPS device found in the pantry of the house had been at the landing site).
(2)Receipts for the purchase of five bags of salt, which were located on the fishing vessel when it was boarded by authorities on 1 May 2016.
(3)A handwritten note with GPS operating instructions and the coordinates of the landing site written down.
(4)Receipts for cigarettes of the same brand as those located by police at the landing site.
(5)Documentation for the hire of the red Mitsubishi from 24 April 2016 to 2 May 2016, which was seen on CCTV footage at the Caltex Service Station Jurien Bay at 6.37 am on 1 May 2016.
[15] Trial ts 298 - 299.
A phone seized from the appellant's room at the Thornlie address showed the appellant talking with an unidentified male person about accounts and seeking reimbursement for expenses.[16] There was also video of the appellant, Mr Tan and Mr Ching having drinks on 5 May 2016, on which Mr Ching said 'Since work is done, time to pamper oneself'. Messages on a Blackberry mobile phone contained what the Crown alleged were coded messages about drugs between the appellant and a contact designated 'woomingwoming' between 28 April 2016 and 1 May 2016. The messages talk about the discovery that a bag was missing, and the appellant and Mr Tan returning to retrieve it, as well as the appellant's expectation that there were to be 30 bags rather than only 15.[17]
[16] Trial ts 299.
[17] Trial ts 299 - 302.
The Crown also relied on admissions and lies said to have been made by the appellant in recorded interviews with police on 20 May 2016 and 24 May 2016.[18] In very general terms, in those interviews the appellant admitted participating in the importation but said that he thought that they were smuggling tobacco rather than methamphetamine.
[18] Trial ts 314 - 319.
The prosecution case was that the appellant came to Australia to participate in the importation of methamphetamine and for no other reason, and his actions in opening a bank account etc were all directed toward that end.[19]
[19] Trial ts 377.
In his opening address, the prosecutor made the following observations about the appellant's account to police that he thought he was smuggling tobacco:[20]
Well, the prosecution says well, that is just totally incredible. And I'll say a bit more about it at the end of the trial.
But just let me say this about it. Any sort of common sense approach to a group of people coming in in dribs and drabs from about six months previously and being housed in Australia with the knowledge that they were going to pick up something from the coast involving a ship from somewhere else and a tender would obviously, in their minds, involve a fair bit of cost. Impossible to put a dollar figure on it, but there'd be some cost involved in obtaining, using, steering, crewing and buying diesel for the trip, wherever that trip was from.
[The prosecutor then summarised various on-shore costs totalling $235,703]
Well, we could put some other hard-edged figures in there, rents and so on that we know were paid, bond money and so on and so forth. There was the purchase of suitcases and other items, the purchase of petrol or clipseal bags, there was food et cetera, et cetera, et cetera. So the outlay for anybody that was involved in this venture was obviously going to be pretty substantial.
What sort of return might have been expected, or what sort of money might have been derived from the importation of 182 kilograms of tobacco? Well, first of all - I don't know that anybody has actually done this exercise but you have to consider how much tobacco in weight could actually be crammed into the 15 bags. Whether you could get 182 kilograms into those 15 bags is not something that I can answer.
But assuming that you could squeeze 182 kilograms of tobacco into those 15 bags, the duty that would have been saved by smuggling them into Australia at the then current rate of duty on a kilogram of tobacco would have been $91,451.36.
Now, again, ladies and gentlemen, I just give this as an example of how the prosecution invites you to apply common sense to the explanations that were offered by those two people, Ching and Chong, as to what they thought was happening, the nature of the smuggling operation that they admitted being part of, and their state of mind as to what the substance actually was involved.
And to the extent that they may have had some sort of [naive] notion initially that it had something to do with tobacco or alcohol, by the time they hauled 182 kilograms of the substance in those 15 bags up the beach on 1 May in the darkness, and by the time there was the panic to go and collect the fifteenth bag after one had been left behind, any notion that they were involved in a tobacco smuggling exercise would have long since disappeared.
[20] Trial ts 342 - 344.

Appellant's case at trial

The appellant's case at trial was that he believed he was involved in the importation of cigarettes, and did not know that methamphetamine was being imported. In opening, the appellant's counsel observed:[21]
It's Mr Chong's case that at all times during his involvement with this matter he believed he was involved in the importation of cigarettes, and he did not know that it was methamphetamine being imported.
And I'd suggest to you that as you hear the evidence you will see that the acts undertaken by Mr Chong are consistent with the acts of a man who thought he was involved in the importation of cigarettes.
My friend the prosecutor referred in his opening this morning to the amount of costs that would have been involved in this importation scheme. But I'd say to you there's nothing in the evidence that you'll hear that would suggest that Mr Chong knew how much money other people who were involved in this importation were receiving, or that he had any knowledge of the amount of duty that stood to be avoided by the importation of the cigarettes that he believed was being imported.
I'd suggest to you that after you've heard all the evidence you will have a reasonable doubt that Mr Chong intended to be involved in the importation of methamphetamine.
[21] Trial ts 366.

Evidence at trial

It is unnecessary to summarise all of the evidence led at trial for the purposes of dealing with the sole ground of appeal. The following aspects which are of particular relevance to the ground of appeal may be noted.

In his recorded interviews, the appellant admitted attending the landing site on 1 May 2016, collecting bags left by a boat and returning to Perth. He essentially admitted travelling to Coolangatta, then Sydney where he opened a bank account and then Perth where he was involved in leasing the residence in Thornlie and the purchase of the white Ford Ranger. He also admitted attending the landing site on a number of occasions prior to 1 May 2016. He also admitted purchasing the GPS which had been used at that location, as well as the bags of salt found on the vessel. He indicated that he was doing so in the belief, as a result of what he had been told by a man he met in Malaysia, that he was smuggling tobacco.
Detective Sergeant Fogell, who was attached to the Organised Crime Squad, gave evidence as a prosecution witness. He gave evidence that he was familiar with operations involving the manufacture, importing and trafficking of drugs such as methamphetamine. His evidence-in-chief was that, in May 2016, the street price of 0.1 g of methamphetamine was $100, 1 gram was $5000, 1 ounce (28 grams) was $5,000 - 7,000 and a kilogram was $180,000 - 220,000.[22] He was asked questions in cross‑examination which we set out in dealing with the trial judge's direction as to his evidence below.
[22] Trial ts 2250 - 2252.
Ms Ward, a Border Force officer, was also called as a prosecution witness. In her evidence-in-chief, she said that she was assigned to the Compliance Operations Group and her role included conducting risk assessment and direct intervention activities on imported goods to Australia that may contain smuggled tobacco. She said that, on 1 May 2016, the value of a carton (usually 200 sticks) of cigarettes was approximately $27. The domestic value of loose tobacco as at that date was about $105 per 100 g.[23]
[23] Trial ts 1767 - 1768.
In cross-examination, Ms Ward said that her role related to integrated cargo coming into Australia via air, sea, post or airports. She said that she would be made aware of an 'illegal boat' carrying tobacco into Australia other than through a port if Border Force officers found it at the time of its illegal landing. The following exchange then occurred:[24]
Yes. And does tobacco sometimes come in via those sources, by - on an illegal boat?---It's not as common. If it is found that way and it comes across my desk it would be - what I've seen in my experience, it's been more personal - illegal importation and hasn't been large amounts.
Yes?---That's just my experience.
And is it really known how many illegal boats are intercepted and how many are not?---No.
No. Because really, those that aren't intercepted, they're never known about?---Correct.
And - but does the border protection know if that sometimes happens, that boats come in and are not intercepted?---We believe it would happen but we have no - like, we wouldn't have knowledge of it, but we would suspect that the size of the coastline, we can't look at everything, so it - it could happen.
[24] Trial ts 1769.
Later, the cross-examination of Ms Ward continued:[25]
Yes. And it may not be something that you can comment on, but - but is it known how much illegal tobacco comes into Australia every year?---It's not known.
No. Because really, the thing about tobacco is that a duty is payable on tobacco, is that right?---That's right.
And it's actually a very high percentage of the value of a packet of cigarettes or a packet of tobacco?---Correct.
Yes, yes, so if one was to import tobacco illegally, it would – there'd be a lot of duty not payable – well, possibly a lot of duty not payable – not paid to the Australian government?---Yes.
[25] Trial ts 1770.
Ms Ward gave evidence that in May 2016 just over 53% of the value of a packet of cigarettes went in excise duties. She said that small amounts were usually brought into the country by individuals, and the 'big imports for which we have bigger concerns will come via container'.[26]
[26] Trial ts 1771.
Ms Ward was referred to a report which indicated that, between 2015 and 2017, Border Force had stopped over 400 tonnes of tobacco (with an evaded duty of $294 million) from reaching the black market. The report described tobacco being hidden in other items, including 7.4 million cigarettes (an estimated evaded duty of about $5 million) being concealed in tabletops. It also described the seizure of tobacco in an investigation into a criminal syndicate importing tobacco, where the duty evaded was $9 million.[27]
[27] Trial ts 1772 - 1774.
Ms Ward agreed that China and South Korea were among the primary sources of illicit tobacco imported into Australia. The tobacco could be sold at more than 60 times its offshore price, so that significant profits could be made from illicit tobacco in large amounts.[28]
[28] Trial ts 1774.
Like his co-accused, the appellant did not give or adduce any evidence at trial.[29]
[29] Trial ts 2579.

Defence counsel's submissions

At trial, the appellant's counsel made detailed submissions as to the evidence concerning the extent of the appellant's involvement in the importation operation.[30] As no complaint is made in relation to the trial judge's summary of those submissions, it is unnecessary to detail them in these reasons.
[30] Trial ts 2947 - 2975.
The appellant's counsel made the following submissions in relation to Ms Ward's evidence:[31]
The Crown say to you that you should reject as implausible Mr Chong's explanation that he believed he was involved in the importation of cigarettes. Whilst it's a matter for you, I would suggest to you that there is evidence before you that indicates the importation of illicit tobacco into Australia is a real and significant problem for Australian authorities.
[31] Trial ts 2969.
After summarising Ms Ward's evidence, counsel submitted:[32]
Having regard to the evidence of Ms Ward, I would suggest to you that you should not accept the Crown's submission that Mr Chong's belief that he was involved in the importation of illegal cigarettes is implausible. The evidence establishes that cigarette importation is a real problem in Australia and there are real profits to be made from the illegal importation of tobacco products to Australia.
[32] Trial ts 2971.
In relation to Detective Sergeant Fogell's evidence, counsel submitted:[33]
What I'd say is particularly relevant to your assessment of the evidence in this trial is the evidence of Detective Sergeant Michael Fogell, one of the last witnesses you heard from at the trial. You've already been referred to his evidence by some of my friends and no doubt almost all of my friends will refer to his evidence as well in their closing addresses to you and that is because his evidence is extremely relevant and significant.
Detective Fogell confirmed in his evidence that secrecy is very important within criminal drug enterprises and there is often secrecy within the enterprise. This will be commonly referred to as need-to-know-type basis where lower-level participants are not privy to the full details of what is happening. Detective Fogell also agreed that there can be situations where a person may not even be aware that they are involved in a drug business and I would suggest to you that in relation to Mr Chong, that evidence is of great relevance.
The Crown has asked you to apply your common sense and your knowledge and experience when you assess the evidence in this case and I agree but I would caution you against making assumptions about the way in which drug syndicates operate.
I would be very surprised if any of you had any firsthand experience of a drug criminal enterprise, therefore I'd suggest to you that the expert evidence you heard from Detective Fogell about the way these syndicates operate will be significant in your deliberations and should be given significant weight.
[33] Trial ts 2971.
Counsel then referred to evidence which, she contended, supported the inference that the appellant was not a trusted member of the scheme and was not being given full information about what the scheme involved.[34] She submitted:[35]
It is implausible to believe that Mr Chong would have been trusted with the knowledge of the extent of this criminal enterprise. It was highly consistent with Detective Fogell's evidence that he would have held an honest belief that he was involved in a scheme to import illicit tobacco and was unaware that the bags contained methamphetamine.
[34] Trial ts 2971 - 2973.
[35] Trial ts 2973.
Counsel then submitted that the jury could find that the appellant was involved in an agreement confined to his housemates at the Thornlie address, Mr Tan and Mr Ching, to attend the landing site, collect bags and deliver them to a rest stop. She submitted the evidence did not establish an agreement to import border controlled drugs, and was consistent with the appellant's explanation that he honestly thought he was involved in the importation of tobacco products.[36]
[36] Trial ts 2974 - 2975.

The trial judge's directions

Below we summarise the presently material aspects of the trial judge's directions.

Role of judge and jury

In giving the jury his opening general directions, the trial judge explained the jury's role in finding facts in orthodox terms. Because it relates to an issue in this appeal, we will set out the terms of that standard direction below:[37]
As I have said, it is my duty to inform you of the law which of course is what I have been doing so far. It is your duty to apply the law as I explain it to you to the facts as you find them. You however, are the sole judges of the facts therefore while you must accept as correct anything that I say about the law, you are not bound by anything that I might say about the facts of the case.
… To the extent that I may remind you of the evidence or I may comment on the facts it will be to assist you to identify the issues that you will need to decide and to summarise the case that has been put to you on behalf of the prosecution and each of the accused. And it may also be to illustrate a particular matter of law that I need to explain to you.
However, you are entitled to disregard anything that I say about the facts or about the evidence and indeed you have a duty to do so if what I say does not accord with your own assessment of the evidence.
[37] Trial ts 3222 - 3223.
In directing the jury about acting on the evidence and not speculating, the trial judge illustrated his point by reference to a submission made by one of the co-accused's counsel about fuel gauges on the fishing vessel. Before giving this illustration, his Honour observed:[38]
Now, there are some matters that I will deal with in this context arising out of counsel's addresses. I will come to them when I summarise the arguments at the end of my summing up but there is one example which I will deal with shortly. I should point out first that what I am going to say is not by way of criticism of what counsel said and when I come to deal with specific matters later, the same applies. It is to ensure that you understand your obligation to arrive at your verdicts only on the evidence and not to speculate.
Secondly, to the extent that I refer to the evidence and what you might make of it, what I say is by way of comment and you are not bound by it because you are the judges of the facts. However, my point is to emphasise that you must not speculate and that is a direction of law that is binding upon you.

Detective Sergeant Fogell's evidence

[38] Trial ts 3228.

The trial judge turned to give the jury directions in relation to the manner in which they should deal with expert evidence that had been given in the trial. In the course of doing so, his Honour made a number of observations in relation to the evidence of Detective Sergeant Fogell, which is the subject of complaint in this appeal.
In the quotations below we have emphasised the parts of the direction of which the appellant complains with italics. We have emphasised parts on which the Crown relies, as indicating that his Honour's comments were not binding on the jury, by underlining.
His Honour said:[39]
Now, I do want to say something about Detective Sergeant Fogell. Much has been made of his evidence by a number of counsel. He was called by the prosecution to give expert evidence about the way in which methamphetamine is distributed in the community, you'll remember, its value and so on.
His expertise in that regard was not challenged and all parties have made use of that evidence in their addresses to you. He also has some expertise in respect of organised crime. It is necessary however to consider any limitation to his expertise which he acknowledged.
It is also necessary to consider the extent of any propositions with which he agreed because in the end, much of his evidence in terms of organised crime was by way of responses to propositions. He wasn't asked, for instance, just to give an explanation in his own words. (emphasis added)
[39] Trial ts 3244 - 3245.
The trial judge then referred to the following evidence given by Detective Sergeant Fogell when cross-examined by counsel for a co-accused:
You've worked as a police officer in the UK and in Western Australia, that's correct?---Yes, it is.
But you've never been employed as a police officer in China, that's correct;?---That's correct, yes.
Or in Malaysia?---That's also correct, yes.
Or in Hong Kong?---No, I've never worked in Hong Kong.
All right?---Or anywhere in Asia.
So the evidence that you've given today is on the basis of the information that you have received based on the methamphetamine trade in Western Australia and the UK, that's correct?---That's correct, yes.
And you've in fact been working in Western Australia for, I apologise, was it 23 years?---Yes.
Thank you. So the names that you provided that would be slang terms for methamphetamine, they're slang terms that would be used in Western Australia, that's correct?---Yes, that's correct.
You couldn't tell us what the slang terms would be in China or Malaysia or Hong Kong, is that correct?---No, I couldn't, no.
All right. And Officer Fogell, you don't have any - Detective Fogell, I apologise. You don't have any knowledge or experience about organise crime in mainland China, that's correct?---No, that's not correct. I do have experience.
You do?---Yes.
So you're - you're familiar that syndicates or triads operating out of mainland China have a very strict hierarchical structure, you'd agree with that?---Yes.
Yes. And that even as - as triads modernise, there still remains in place at least a loose version of that traditional hierarchical structure, you'd agree with that?---I'm not that familiar with the triad structure other than from what I've seen in the media and reading articles and that sort of thing. So I've not - I haven't studied the triads but it seems a fair comment.
The trial judge then observed: [40]
Now, I think the point does need to be made that expertise cannot be based simply on what one reads in the media or maybe even in articles, because otherwise we could all become experts in that way.
And that wasn't the basis upon which he was being put forward as an expert. It was to do with his experience as a police officer and he has been in the Organised Crime Squad. So you just need to, I think, bear that in mind.
[40] Trial ts 3246 - 3247.
The trial judge then read the following passages of Detective Sergeant Fogell's evidence under cross-examination:[41]
Would you agree that - and perhaps you - you can reflect on your experience if - that one of the reasons organised crime operates on a hierarchical structure is essentially to limit the knowledge and information at different levels. Would you agree that that's one of the reasons for that?---Yeah, I would agree with that, yes.
All right. And you'd agree that uninitiated members or street level people would have very little knowledge of the actual organisation, that's correct?---In - in most circumstances that's probably correct, yes.
[41] Trial ts 2253.
The trial judge then made the following comment:[42]
So he's saying in most circumstances. But you need to consider, it seems to me, what was meant by, 'very little knowledge of the actual organisation', because as it happens, none of this was in fact clarified.
[42] Trial ts 3247.
The trial judge continued reading the following passages of the transcript:[43]
And you'd agree that one of the - one of the key things that the drug trade relies on in particular is secrecy, that's correct?---In general, yes.
And that includes secrecy even within its own ranks, you'd agree with that?---I would agree with that, yes.
And you'd agree that there are occasions where in the drug trade people might be entirely unaware that they're even involved in - in that particular industry, would you agree?---There are occasions, yes.
[43] Trial ts 3254.
The trial judge then said:[44]
Now, it's a matter for you what weight you place on that in terms of what it tells you about what might have happened in this particular case. Well, not what might have happened, what did happen in this particular case. Because ultimately, the general propositions and the question still needs to be considered by you if an organisation maintains secrecy in relation to what? What sort of matters might it maintain secrecy about?
Those sorts of things were not explored and whether he would have been in any position to give that evidence is another matter. You can't speculate about that, in any event.
So you need to consider what he has actually said to determine what you consider to be any limitation to the expertise that he was expressing that he had. What I have said about the way in which you need to approach the evidence is a matter of law, that is, you need to consider whether in fact what he has said qualifies him as an expert in relation to those matters, the specific matters.
But what I have said about the things that you may need to consider are comments on the facts and that is a matter that you can completely disregard, if you wish. It is entirely a matter for you ultimately what you make of that evidence. (emphasis added)
[44] Trial ts 3248.
At the next break, counsel for one of the appellant's co-accused raised a concern about the above passages of the trial judge's directions. He submitted that, given there was no objection to the evidence, the trial judge's observations had the effect of 'unduly minimising' the Detective's evidence, particularly in relation to triads.[45] The trial judge declined to redirect on the issue, on the basis that:[46]
I'm of the view that I said sufficient to the jury to make it clear where they could distinguish between what I was saying about a matter of law and what I was saying as a matter of comment and that they could disregard what I had said that may amount to comment.

Elements of the offences

[45] Trial ts 3259 - 3261.

[46] Trial ts 3261.

After dealing with presently immaterial matters, the trial judge directed the jury in relation to the elements of the charged offence. The direction in relation to the appellant was given in accordance with the following text of a jury handout:[47]
[I]n order to find the accused guilty of the offence of importing a commercial quantity of a border controlled drug, you must be satisfied beyond reasonable doubt that -
1. The accused entered into an agreement with at least one other party;
2. The agreement was to import a border controlled drug into Australia;
3. One or more of the parties to the agreement did an act or acts that together amounted to importing a border controlled drug into Australia; and
4. The quantity of the border controlled drug imported into Australia was a commercial quantity.
You must be satisfied that all of those elements have been proved beyond reasonable doubt.
[47] Trial ts 3308 - 3309.
The trial judge elaborated on the requirements of each of these elements, in a manner which it is not necessary to set out in the present appeal.[48]

Summary of evidence on which the Crown relied

[48] Trial ts 3309 - 3313.

After directing the jury about the elements of the offence relating to all of the accused, the trial judge proceeded to summarise the evidence on which the prosecution relied. In his remarks introducing that topic, the trial judge said:[49]
What I will say about the evidence in some respects will involve further directions on the law, as I've already said to you. To the extent that what I say about the evidence is really simply reminding you of the evidence or making comment about the evidence, then those things that I say are not binding upon you. It is only the directions of law that are binding upon you.
Obviously I would hope that what I say to you will assist you to some extent as counsel have hopefully assisted you with their addresses to you. But always remember that anything that I say will only be a summary. You are the judges of the facts and it is for you to decide the facts on the evidence you saw and heard which includes all of the exhibits which you will take into the jury room. (emphasis added)
[49] Trial ts 3326.
The summary of the evidence was detailed and will not be recounted here. At one point, the trial judge corrected some factual errors which counsel had pointed out to him in the absence of the jury. In doing so, his Honour said:[50]
Now, you need to bear in mind at all times, as I've said to you, that what I say about the facts is not binding upon you. You're the sole judges of the facts. And it is what you recall of the facts and what you make of the facts having regard to what witnesses have said and what is contained in the exhibits that matters in the end.
Having said that, I will endeavour not to make any errors in stating the facts to you but there were some I think that I need to correct.
[50] Trial ts 3377 - 3378.
In summarising the evidence relied on by the Crown, the trial judge made the following further observations about Detective Sergeant Fogell's evidence:[51]
Now, in that context, because this is the proposition that was put to you by a number of the counsel for the accused, you've been asked to consider the evidence of Detective Sergeant Fogell - I already dealt with that on - well, early on - and indicated that you need to make your own judgment about whether there were any limitations to what Detective Sergeant Fogell has said.
Ultimately he acknowledged that secrecy is part of the way in which organised crime and those who might be involved in smuggling drugs to Australia would operate. But that doesn't necessarily tell you in relation to what information, what would they keep secret from those who are involved?
It's a matter for you, ladies and gentlemen, but counsel for the accused have made their arguments as to why they - some of the accused at least may be kept on the dark, why someone who is working on the engine would not need to know what the whole trip was for, why someone who might have been hired as a cook would not need to know what the whole - or what the trip was for, what the purpose was for.
Maybe some analogies are not particularly helpful. The use of the term 'foot soldiers', the examples that were given about soldiers being sent in as cannon fodder and so on, not being told by the generals or their commanders what they were going into. It seems to me that the difficulty with that sort of example is that soldiers at least would know what they're involved in. They know that they are going in to fight the enemy. They know who the enemy is, and they know who they are fighting for.
So I'm not sure that that example is particularly helpful as far as trying to make a judgment about whether the accused in a case such as this would be kept in the dark, would be deprived of information about what the purpose of the trip was and what it was that - or where it was that they were going, because they are both essential facts that you need to be satisfied about.

Summary of appellant's counsel's submissions

[51] Trial ts 3425 - 3426.

Having summarised the evidence on which the Crown relied, the trial judge then began summarising defence counsel's arguments in the order in which counsel addressed the jury.[52]
[52] From trial ts 3428.
The trial judge summarised the submissions of the appellant's counsel, which identified the critical issue as the appellant's knowledge of what was being imported. The issue was whether the jury could be satisfied beyond reasonable doubt that the appellant knew that what was being imported was methamphetamine, and knew that drugs were in the bags when he went to collect them. The appellant submitted that nothing in the evidence could point to the appellant knowing that the bags contained a substance other than cigarettes.[53]
[53] Trial ts 3468.
The trial judge also summarised counsel's response to the Crown's argument that the overall cost of the scheme appears to have been quite significant, so that it could not have appeared to be a smuggling of cigarettes as opposed to drugs. He said that counsel's submission was that there was no evidence that the appellant had knowledge of the number of people involved in the scheme beyond the residents of the Thornlie address. Nor was there any evidence that he had knowledge of the amount of money or the sum of money that could be made from the importation of the cigarettes.[54]
[54] Trial ts 3468 - 3469.
The trial judge identified four reasons why counsel submitted that the jury could not be satisfied that the appellant entered into an agreement to import a border-controlled drug, or knew or believed that the bags he assisted in collecting from the beach on the morning of 1 May 2016 contained drugs:[55]
(1)There was no evidence that he entered into an agreement with the persons on the vessel, or with Yong or Ching, to commit the offence of importing a border controlled drug.
(2)There was no evidence that he knew or believed that the bags contained methamphetamine and not cigarettes.
(3)The appellant made no attempt to conceal his identity, and he made full admissions to police when he was interviewed about going to collect the bags and being present at the beach landing site.
(4)The acts that the appellant actually undertook were entirely consistent with his belief that he was recruited to assist in the importation of cigarettes.
[55] Trial ts 3469 - 3476.
The trial judge made observations in relation to the first of the above points. The trial judge's direction indicated a need to remind the jury 'as a matter of law' that:[56]
(1)If the appellant's intention was to enter into an agreement with one or other or more other persons to import border controlled drugs, it would not be necessary for the jury to be satisfied that he knew the identity of every other person who was involved in the enterprise or in the agreement.
(2)There was no need for the jury to be satisfied that the appellant verbally entered into an agreement with anyone or by any other means because non-verbal understandings are sufficient to amount to an agreement.
[56] Trial ts 3469.
The trial judge also observed:[57]
This is a comment in relation to the matter and you may ignore it as you wish, but if Mr Chong believed that he was involved in an enterprise concerning the importation of cigarettes, then you might wonder whether that does not of itself indicate that he understood he was involved in an agreement, that he was part of an agreement and intended to enter into an agreement for that particular purpose. (emphasis added)
The trial judge said that 'the question perhaps is not so much whether he entered into an agreement … but what was it that he was agreeing to do (ie whether the jury were satisfied beyond reasonable doubt that it was to import border controlled drugs rather than cigarettes).[58] The trial judge said:[59]
So in that context it would not matter if he had no contact with anyone from the vessel or with Mr Ching, for instance, because Ms Oliver quite properly indicated there is no evidence of any contact with those persons. So there is an absence of evidence about those matters, but the point is that as a matter of law you don't need to be satisfied that there was that kind of contact.
[57] Trial ts 3469.
[58] Trial ts 3469 - 3470.
[59] Trial ts 3470.
After summarising the detail of counsel's submissions about the conduct of the appellant, the trial judge identified the legal issue in the following terms:[60]
But ultimately the issue, as Ms Oliver put it to you, is whether it is reasonable to find that he was recruited to come to Australia or it is open to you to conclude that he was recruited to come to Australia to participate in the illegal importation of cigarettes.
If that is open, if that hypothesis is open, then you could not be satisfied beyond reasonable doubt that he is guilty of the offence because you would not be satisfied beyond reasonable doubt that his intention was to engage in the importation or an agreement for the importation of a border controlled drug.

Directions about Ms Ward's evidence

[60] Trial ts 3476.

The trial judge then referred to evidence which the appellant's counsel had mentioned, being:[61]
The evidence given by Ms Ward about the importation of illicit tobacco into Australia and the fact that it is a real and significant problem for the Australian authorities.
[61] Trial ts 3476.
The trial judge made the following observation as to the effect of Ms Ward's evidence, which is the subject of complaint in the appeal:[62]
Now, in relation to that, Ms Ward gave evidence about the means by which tobacco is smuggled into Australia. It's a matter for you what you make of it, but it seemed that when it comes by sea she was suggesting that it's in large containers. But that is a matter for you as to whether you consider that that is the effect of her evidence.
[62] Trial ts 3476.
The trial judge then turned to address the relevance of Ms Ward's evidence, in the following terms:[63]
But the point that you need to consider is this, in the end what significance does the fact that tobacco smuggling into Australia is a significant problem have in determining whether Mr Chong was party to an agreement to import methylamphetamine rather than cigarettes? What happened here ultimately if you accept the prosecution case was that methylamphetamine was smuggled, not cigarettes.
What was in those black duffel bags was in fact methylamphetamine, not cigarettes. So the only way in which any of this it seems to me could be relevant, that is the evidence about how much money might be paid from smuggling the amount that might be saved on duty and so on, is if Mr Chong knew about any of it and there doesn't seem to be any evidence. The only evidence about what his knowledge was was in his interview.
And there doesn't seem to be any evidence that he specifically knew about any of those matters that were adduced from Ms Ward about the tobacco importation or smuggling business and the kind of money that could be made in relation to it. So it is a matter for you, ladies and gentlemen, but it seems to me that ultimately you need to be focused on what it is that you can conclude about Mr Chong's state of mind, not objectively might happen as far as tobacco importation is concerned because that's not what actually happened here.
[63] Trial ts 3476 - 3477.
The trial judge then referred, without further comment, to counsel's submissions about Detective Sergeant Fogell's evidence, and that this was a situation in which the appellant had been misled as to the enterprise in which he was involved.[64]

Counsel's submissions about the direction as to Ms Ward's evidence

[64] Trial ts 3477.

After the trial judge's summary of the appellant's submissions, in the absence of the jury, the appellant's counsel raised a concern in relation to the summary. She contended that Ms Ward's evidence was relevant in relation to the Crown's submission that the belief that the appellant was involved in cigarette importation was inherently implausible. She submitted that it could be inferred, from the fact that the importation of cigarettes is an issue in Australia and there was money to be made from it, that the belief was not inherently implausible. In the course of his exchange with counsel, the trial judge observed:[65]
You see, as I made the point to the jury, I do have difficulty with this whole proposition from a logical point of view because what happened here was not the importation of cigarettes. It was an importation of a border controlled drug. So nothing in the circumstances here could assist in assessing whether in fact what happened could be consistent with the importation of smuggling of cigarettes into Australia.
The fact that objectively it is a problem doesn't, it seems to me, really assist the jury on the question of whether it was inherently implausible from Mr Chong's point of view to believe that it was tobacco smuggling unless there was evidence of what his knowledge was. Isn't that a prerequisite?
…
I have reminded the jury that that was your submission and that was the evidence that it is a significant problem. It's just a question of really what significance it has in their assessment of what your client believed and ultimately, they have your submission in that regard.
[65] Trial ts 3478 - 3479.
The trial judge indicated that he still needed to deal with the issue in the context of another counsel's address, and if his Honour thought he needed to say anything about the issue he would relate it back to what the appellant's counsel had said as well.[66] When he dealt with the submissions of counsel for Ching (who also said he believed he was importing tobacco), the trial judge said:[67]
But in any event, ladies and gentlemen, the point that I made earlier does apply in my view in this instance as well. It's a matter entirely for you as to the significance that you place on that evidence. But what you're concerned with in the end is not what objectively might be established.
It might go to the question of whether it's inherently implausible that an operation of this kind would involve cigarette importation or tobacco importation, which counsel reminded you was the proposition that was being put by the Crown, but you are in the end concerned with what was in the mind of the accused that you are dealing with in dealing with each one separately, and in this case with Mr Ching and what evidence there is that he had any knowledge about what money might be made, or what savings might be made as far as duty is concerned.
[66] Trial ts 3479.
[67] Trial ts 3482.

Ground of appeal to this court

The appellant appeals on the sole ground that there was a miscarriage of justice occasioned by the trial judge's direction. The ground is particularised in the following manner:
In addressing the jury in relation to the following evidence, the trial judge made comments in relation to the relevance of the evidence and such comments materially prejudiced the appellant as they unfairly affected the jury's assessment of the appellant's defence to the charge (that defence being that he believed that the bags he assisted to import contained illicit tobacco, and that he did not know that the bags contained methamphetamine):
(a) the evidence of Michelle Ward as to the fact that the importation of illicit tobacco is a real and significant problems for the Australian authorities; and
(b) the evidence of Michael Fogell as to the way in which drug syndicates operate.

Issues for determination

There were three strands to the appellant's submissions before this court, as developed during the course of oral argument:
(1)In the passage quoted at [71] above, the trial judge misstated the effect of Ms Ward's evidence, when he told the jury that the effect of her evidence was that 'when [tobacco] comes in by sea … it's in large containers'.
(2)The passage quoted at [72] above could be taken as a direction that Ms Ward's evidence was irrelevant, which was an incorrect direction as a matter of law.
(3)The passages quoted at [71] and [72] above, and the comments about Detective Sergeant Fogell's evidence, had a cumulative and significant effect on the jury's assessment of the appellant's defence at the trial that this resulted in him not receiving a fair trial.
The parties' submission as to those matters, and the disposition of the arguments, are dealt with below.

Misstatement of fact as to 'large containers'

Appellant's submissions

The appellant contends that the passage at [71] above misstates Ms Ward's evidence. The appellant submits Ms Ward's evidence was that, in her experience, larger shipments through Customs controlled ports usually came disguised by some means within a sea container offloaded at a port.[68] Her evidence was not that, when an import came via sea, it was in large containers (as opposed to the duffel bags in which the methamphetamine was imported). Further, the appellant submits that Ms Ward's evidence was that the extent of importations via non-Customs controlled ports was unknown. In the circumstances, the appellant says that her comments about larger imports in containers cannot be extrapolated as extending to imports by sea at non-Customs controlled ports or areas.[69]

Respondent's submissions

[68] Trial ts 1771 - 1772.

[69] Appellant's Submissions, par 42 - 43; appeal ts 4 - 5.

The respondent's written submissions assert that there was no misstatement of Ms Ward's evidence, material or otherwise.[70] Further, the respondent submits that, when considered as a whole, his Honour's charge left no doubt that the jury must have appreciated that it was not bound by any comments he made on the evidence and there was no reasonable possibility of the jury misapprehending the difference between directions of law and the judge's comments.[71]
[70] Respondent's Submissions, par 8.
[71] Respondent's Submissions, par 7.
In oral submissions, counsel for the respondent accepted Ms Ward's evidence went no further than that people who try to smuggle cigarettes past Customs do so either by false consignment documents describing the cigarettes as being something else that is not dutiable and/or hiding them in a shipping container in a way that will, hopefully, avoid detection. Counsel submitted that Ms Ward's evidence did not extend to smuggling in a boat coming ashore outside a port and the smuggled items being taken away by vehicle.[72]

Disposition

[72] Appeal ts 28 - 29.

In our view, the trial judge's observation that the effect of Ms Ward's evidence was that 'when [tobacco] comes in by sea … it's in large containers' did not capture the effect of her evidence. It is not clear whether, in referring to 'large containers', the judge was referring to sea containers in which tobacco might be secreted, or the size of the package in which the tobacco was imported. In either event, Ms Ward's evidence concerned her experience at ports and did not discount the prospect of tobacco being imported by 'illegal boats'.
An inaccurate or inadequate summary as to the effect of evidence by a trial judge may,[73] but does not necessarily, give rise to a miscarriage of justice. In order to show that a misdirection on a matter of fact gave rise to a miscarriage of justice, an appellant must show that it was reasonably possible that the misstatement may have affected the verdict.[74]
[73] See Maher v The State of Western Australia [2010] WASCA 156 [15], [75].
[74] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332; Phan v The State of Western Australia [2019] WASCA 131 [84].
We do not consider that this comment about the effect of Ms Ward's evidence, standing on its own, gives rise to a miscarriage of justice in all the circumstances of the case. The passage quoted at [71] above made it very clear that it was for the jury to determine the effect of Ms Ward's evidence. The ambiguity in the trial judge's reference to 'large containers' would reasonably have been understood by the jury against the evidence given by Ms Ward, which counsel for the appellant had summarised in detail.[75] Otherwise, the concern is that it is an inadequate summary of her evidence. We are not satisfied that there is a reasonable possibility that the jury might have found the appellant not guilty if this statement as to the effect of Ms Ward's evidence had not been made, and the summing up had otherwise been given in the terms in which it was delivered by the trial judge.
[75] Trial ts 2969 - 2970.

However, the summary of her evidence which, contrary to the appellant's interests, omitted the fact that Ms Ward did not discount the prospect of tobacco being imported by 'illegal boats' is relevant in assessing the overall fairness of the summing of the appellant's case, considered below.

Direction as to relevance of Ms Ward's evidence

Appellant's submissions

The appellant submits that the trial judge in effect told the jury that Ms Ward's evidence was of no relevance.[76] Counsel contends that the observation was made in such strong terms that it could be construed as a direction of law.[77]
[76] Appellant's Submissions, par 39.
[77] Appeal ts 11.
The appellant refers to the Crown's submission that it was entirely implausible to suggest the appellant believed he was involved in importing tobacco. Counsel submits that, having regard to the Crown's position, the fact that:
(1)illicit tobacco importation is a real and significant problem in Australia, with significant financial impacts through lost excise; and
(2)significant profits can be made from the importation of illicit tobacco,
was evidence in the circumstantial case that the jury was obliged to consider when deciding whether they were satisfied beyond a reasonable doubt that the appellant agreed to import a border controlled drug. It was, the appellant submits, evidence that ran contrary to the Crown's submission that such a belief was entirely implausible.[78]
[78] Appellant's Submissions, par 40 - 41.
The appellant submits that the trial judge's direction as to the relevance of Ms Ward's evidence could be seen as a wrong decision on a question of law giving rise to a miscarriage of justice.[79]

Respondent's submissions

[79] Appeal ts 12.

The respondent concedes that the direction quoted at [72] above could be read as a direction that Ms Ward's evidence was irrelevant.[80]
[80] Appeal ts 25 - 26, 33.
Counsel for the respondent submits that the trial judge was correct to direct the jury that Ms Ward's evidence was irrelevant. Counsel submits that the only basis for the appellant's stated belief was something he had been told in Malaysia. Ms Ward's evidence was broader than just what came in, but how it came in. The use of a mother ship and tender to effect the clandestine landing of tobacco at night was not consistent with Ms Ward's evidence as to the background of tobacco smuggling.[81]
[81] Respondent's Submissions, par 13; appeal ts 25 - 26, 28 - 29.
The respondent also contends that, to the extent Ms Ward's evidence was relevant, the misdirection at [72] above was corrected in the passage quoted at [75] above. In that passage, the trial judge told the jury that Ms Ward's evidence might go to the question of whether the appellant's account was inherently implausible.[82]

Disposition

[82] Appeal ts 23 - 24.

For the following reasons, in our view, the impugned observations could have been taken by the jury to be a direction which they were bound to follow, to the effect that Ms Ward's evidence was irrelevant to the issues they were required to determine. The trial judge incorrectly regarded her evidence as irrelevant, and the subsequent direction did not cure the wrong decision on a question of law. The result was a miscarriage of justice in the appellant's trial.

Effect of the direction

We begin by explaining why we accept the appellant's submission, and the respondent's concession, that the trial judge's observations could be taken as a direction that Ms Ward's evidence was irrelevant.
The distinction between a comment and direction is fundamental, and reflects the division of functions in a criminal trial between the judge and jury. As the High Court noted in Azzopardi v The Queen:[83]
The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and the jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care that is needed in assessing some types of evidence such as evidence of identification.
It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge. Because it is a comment, the jury may ignore it and they should be told they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow. (emphasis added) (citations omitted)
[83] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] - [50]. The distinction between a comment and direction was also emphasised in Domican v The Queen (1992) 173 CLR 555, 560 - 561 and Mamood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397[16] - [18].
The impugned part of the direction in the present case does not concern a view by the judge as to the facts established, or which may be found to be established, by the evidence. Rather, it concerns the relevance of evidence to an issue which the jury is required to determine. The question of the relevance of evidence to an issue is a question of law, and would naturally be the subject of a direction rather than a comment by a trial judge. While jurors would not be expected to appreciate the distinction between questions of fact and questions of law, they would, in our view, be more likely to regard a statement by the trial judge about the relevance of evidence to an issue as a direction which they were bound to follow.
The trial judge did tell the jury that 'it is a matter for you ladies and gentlemen'. However, that observation might reasonably have been taken to relate to a matter other than the relevance of the evidence. The effect of the trial judge's observation invited the following chain of reasoning:
(1)Ms Ward's evidence would only be relevant if there was evidence the appellant specifically knew about the matters to which she referred.
(2)There was no evidence that the appellant specifically knew about the matters to which Ms Ward referred.
(3)Therefore, Ms Ward's evidence was irrelevant.
In our view, the jury might reasonably have taken the trial judge's statement that 'it is a matter for you ladies and gentlemen' to be to the second of these steps. That is, it was a matter for the jury as to whether there was evidence that the appellant specifically knew about the matters to which Ms Ward referred. However, if the jury took the view that there was no such evidence of the appellant's specific knowledge, the trial judge was telling the jury that the evidence was irrelevant.
That is not the only way in which the impugned direction set out at [72] above could be read. We suspect that, subjectively, the trial judge intended the whole of the passage to be a mere observation. A jury might reasonably have understood both the question of the existence of evidence about the appellant's specific knowledge and the relevance of Ms Ward's evidence if there was no evidence of the appellant's specific knowledge, to be matters for them. However, there is a real risk that the jury might have apprehended that they were bound by what the judge said of the relevance of Ms Ward's evidence, if they concluded there was no evidence as to the appellant's specific knowledge of those matters. As there clearly was no direct evidence about the appellant's specific knowledge about those matters, the observation could then have been taken to be a direction by the trial judge that Ms Ward's evidence was irrelevant.

Relevance of Ms Ward's evidence

In our view, Ms Ward's evidence was relevant to the issues the jury were required to determine, even in the absence of direct evidence of the appellant's specific knowledge of those matters.
The Crown carried the burden of proving beyond reasonable doubt, relevantly, that the appellant knew or believed that he was engaged in the importation of a border controlled drug. The jury could not convict the appellant unless they rejected the appellant's assertion in his recorded interviews with police that he understood that he was engaged in the importation of tobacco. The effect of the Crown's submissions was that the idea that the appellant was engaged in the importation of tobacco was so inherently implausible that the jury could be satisfied that he did not honestly hold that belief, even if that was what he had been told.
Whether the appellant's assertion was 'inherently implausible' depended upon the jury's assessment of the objective facts and circumstances relating to the importation. The effect of Ms Ward's evidence was that tobacco smuggling did occur, that it was a significant issue for the Australian authorities, and that significant profits (in the millions of Australian dollars) could be made from it. Knowing whether conduct that was the subject of the appellant's belief actually occurred would rationally inform the jury's assessment as to whether the belief was so inherently implausible that it could not have been genuinely held.
That is, absent the trial judge's impugned direction, the jury may have rationally considered that Ms Ward's evidence to the effect that tobacco smuggling did occur, that it was a significant issue for the Australian authorities, and that significant profits (in the millions of Australian dollars) could be made from it, materially weakened the Crown's case that:
(1)the appellant's assertion that he believed that he was engaged in the importation of tobacco was so inherently implausible that the jury should reject the assertion; and
(2)the jury should be satisfied beyond reasonable doubt that the appellant knew or believed that he was engaged in the importation of a border controlled drug.
Further, knowing that large profits could be made from tobacco smuggling would inform the jury's assessment of whether the appellant must have known that the scale and costs of the operation in which he was involved were disproportionate to the profits which could be made from smuggling tobacco.
Absent Ms Ward's evidence, the jury may well have been unaware that tobacco smuggling was conducted at the scale and profitability described by Ms Ward's evidence. The fact that the importation Ms Ward experienced generally occurred by a different method than was adopted in the present case could affect the weight that the jury gave to her evidence, but it did not make the evidence irrelevant. Ms Ward's evidence was not irrelevant merely because the substance in fact imported was methylamphetamine and not tobacco.
For these reasons, Ms Ward's evidence was objective contextual evidence that was capable of rationally affecting the jury's assessment of the appellant's account that he thought he was smuggling tobacco and whether his account should be rejected as inherently implausible. That is so even in the absence of any direct evidence about the appellant's specific knowledge of the matters to which Ms Ward referred. Ms Ward's evidence was relevant to the jury's assessment of the appellant's defence, the Crown's response to that defence and whether the Crown had proved its case beyond reasonable doubt. To the extent that the trial judge's observations were directions which were expressed to be binding on the jury, they involved a wrong decision on a question of law. To the extent they could reasonably be taken to be directions of that kind, they occasioned a miscarriage of justice.

The later direction did not correct the error

In our view, the trial judge's later direction quoted at [75] above did not correct the error in the direction quoted at [72] above.
First, the later direction was given in the course of directions about Mr Ching's case. While Mr Ching's case was also that he believed he was smuggling tobacco, the later direction was not expressly related to the appellant's case.
Secondly, the later direction was not expressed to qualify or countermand the earlier direction. To the contrary, the trial judge's statement that 'the point I made earlier does apply in my view in this instance as well' indicates an affirmation of the earlier direction.
Thirdly, the direction was that the evidence of Ms Ward might go to the question of whether it is inherently implausible that an operation of this kind would involve cigarette or tobacco importation. The trial judge then said that the jury was in the end concerned with what was in the mind of the relevant accused, and asked what evidence there was of Mr Ching's knowledge. This part of the direction tends to affirm that, on a fair reading of his Honour's summing up as a whole, his Honour directed the jury, in effect, that Ms Ward's evidence was irrelevant to the questions with which the jury were concerned, in the absence of evidence that the relevant accused specifically knew of the matters to which she referred.

Conclusion

The respondent's counsel properly conceded that a miscarriage of justice was established if this court reached the view that Ms Ward's evidence was relevant, and the trial judge's later direction in relation to Mr Ching did not cure the earlier direction that the evidence was irrelevant.[84] In our view, such a miscarriage has been established. Counsel for the respondent also accepted (correctly in our view) that the respondent could not rely on the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA).[85]
[84] Appeal ts 33.
[85] Appeal ts 34.

Alleged failure to fairly put the defence case to the jury

The conclusion reached in the previous section of these reasons is sufficient to support the conclusion that the appeal must be allowed. However, the same result would follow even if we were wrong in concluding that the passage quoted at [72] above could be taken to be a direction rather than a comment. On the view that it was no more than a comment that the jury were free to disregard, the comment, combined with the inadequate statement of the effect of Ms Ward's evidence and his Honour's comment about Detective Sergeant Fogell's evidence, gave rise to a miscarriage of justice. That is because, having regard to those comments, the direction taken as a whole failed to fairly put the defence case to the jury, and contained unnecessary observations that had a tendency to persuade and might have persuaded the jury of the appellant's guilt.

Appellant's submissions

The appellant submits that, in the present case, the trial judge's comments in relation to Ms Ward's evidence went further than the identification of issues of fact, or of fact and law, for the jury's consideration. Rather, the appellant submits, the trial judge, in effect, told the jury how, by disregarding certain facts, it may reason towards guilt. The trial judge in effect told the jury that Ms Ward's evidence was of no relevance, when it was relevant for the reasons summarised above.[86]
[86] Appellant's Submissions, par 39 - 41.
In relation to Detective Sergeant Fogell's evidence, the appellant says that the officer held himself out to have expertise in relation to Asian drug syndicates, and his expertise was not challenged. The Crown did not seek to clarify his evidence in re-examination or by adducing other evidence. The appellant submits that the trial judge's comments had the potential to erode the jury's confidence in the witness as an expert on the relevant topics. Given that the witness' evidence and his expertise to give that evidence were not challenged by the Crown, the trial judge's comments were, in the appellant's submission, inappropriate and unfairly prejudiced the appellant as they would have affected the jury's assessment of his defence in this case. Detective Sergeant Fogell's evidence as to the secrecy involved in drug hierarchies, and the fact that persons can unknowingly be involved in drug enterprises, was directly relevant to the assessment of whether the appellant reasonably believed the bags he dealt with contained tobacco and not methamphetamine.[87]
[87] Appellant's Submissions, par 44 - 46; appeal ts 30.
The appellant submits that the trial judge's comments in relation to the evidence of Ms Ward and Detective Sergeant Fogell had a cumulative, and significant, effect on the jury's assessment of the appellant's defence at the trial. The appellant contends that this resulted in him not receiving a fair trial, so that a miscarriage of justice has occurred.[88]

Respondent's submissions

[88] Appellant's Submissions, par 47.

The respondent submits that the trial judge made it clear that his comments were not binding on the jury and matters of fact were for them to determine.[89]
[89] Respondent's Submissions, par 9 - 10, 19 - 20; appeal ts 27.
Otherwise, as to Ms Ward's evidence, the respondent submits that the trial judge properly identified that the critical issue for the jury's determination was the relevant state of mind of each accused.[90] The respondent submits that the trial judge's remarks did not suggested how the jury may reason towards the appellant's guilt. The respondent says that merely rejecting the appellant's stated belief as to the subject matter of his dealings could not establish a positive belief that it was a border-controlled drug.[91]
[90] Respondent's Submissions, par 9; appeal ts 28.
[91] Respondent's Submissions, par 12.
As to Detective Sergeant Fogell's evidence, the respondent says that the officer expressed a qualified basis for his evidence concerning the triad structure, namely, that he was not familiar with the triad structure other than from what he had seen in the media and from reading articles. The trial judge's summary of Detective Sergeant Fogell's evidence was accurate and involved no misstatement. There was no suggestion in his Honour's charge concerning Detective Sergeant Fogell's evidence that suggested to the jury how it may reason towards guilt.[92]
[92] Appellant's Submissions, par 17 - 18.
The respondent also submits that there was no complaint raised by the appellant's counsel to the observations about Detective Sergeant Fogell's evidence, and no further redirection on Ms Ward's evidence sought after the direction quoted at [75] above was given.[93]
[93] Appeal ts 21, 30 - 31.
The respondent therefore submits that no miscarriage of justice arose from the trial judge's comments in relation to Ms Ward's and Detective Sergeant Fogell's evidence, considered either alone or in combination.[94]

Directions to juries - general principles

[94] Respondent's Submissions, par 21.

Under s 112 of the Criminal Procedure Act 2004 (WA):
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice. (emphasis added)
Although it was not decided under s 112, the judgment in McKell informs when observations may be thought 'necessary in the interests of justice' for the purposes of that section. As the plurality noted in McKell,[95] a trial judge's 'right' to comment at common law is best understood as a judicial power or discretion to be exercised judicially for the purpose of ensuring that the jury have a fair and accurate understanding of what they need to know to do justice in deciding the issues of fact that arise for their determination.
[95] McKell [55].

As the Victorian Court of Appeal has noted,[96] the view that a trial judge may comment strongly on the facts provided that he or she informs the jury that they are the judges of the facts and are not bound by his or her comments was dispelled by the High Court's decision in McKell. In the opening part of their reasons, the plurality in McKell held:[97]
A trial judge's 'broad discretion' to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put 'accurately and fairly' to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge's summing up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
[96] Pyliotis v The Queen [2020] VSCA 134 [63]; Mareangareu v The Queen [2019] VSCA 101 [67]
[97] McKell [3].
In McKell, convictions for Commonwealth drug offences were quashed on the basis that:[98]
[S]tatements by the trial judge during the course of his summing up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice.
[98] McKell [4].
The plurality stated the general requirements of a judge's summing up in the following terms:[99]
A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that 'the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury'. In carrying out this task, it is no part of the trial judge's role to 'don the mantle of prosecution or defence counsel'. As Gibbs CJ said in Cleland v The Queen, '[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused'. (citations omitted)
[99] McKell [35]
In McKell, the court affirmed the proposition that a judge's summing up must be read as a whole.[100] The vice of the trial judge's direction in that case was described in the following passage:[101]
The content and tone of the trial judge's remarks in relation to the tape trial text message would not have been out of place in a powerful address by counsel for the prosecution. The circumstance that the trial judge had directed the jury that they were the 'sole arbiters of the facts' affords no answer to that concern. The vice of these remarks is not so much that the jury may have been confused as to their role as the sole arbiters of the facts, but that the prosecution was being given the advantage of a second address. As Beech-Jones J correctly observed:
[A] recognition that the jury were the trier of facts does not address a complaint about an unbalanced summing up, specifically one that seeks to persuade a jury as to what facts they should find.
(citations omitted)
[100] McKell [39].
[101] McKell [40].
The plurality held that the respondent in McKell misstated the issue when it submitted that there was no basis for concluding that the jury must necessarily have disregarded their duty to independently consider the evidence. Rather, the issue was:[102]
[W]hether the trial judge's comments were apt to create a 'danger' or a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments in favour of the prosecution case made with the authority of the judge.
[102] McKell [42].
The risk of concern in McKell was that 'the jury might be persuaded to convict by what was, functionally, a second address by the prosecution'.[103] The plurality held that the lack of balance in the trial judge's comments in that case could not be justified as reflecting the relative strengths of each side's arguments, observing:[104]
In some cases where the prosecution case is strong even a neutral summary of that case by the trial judge may sound adverse to the accused, but there is a real and well recognised difference between the statement of a case and the advocacy of that case. The observations of which the appellant complains were couched in the forceful language of persuasion. Further, the circumstance that a case against an accused person appears a strong one in no way diminishes the obligation of those conducting the trial to ensure that it is a fair one. (citations omitted)
[103] McKell [43]
[104] McKell [44].
The plurality in McKell concluded:[105]
Where a trial judge's summing up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge's 'right' to comment on the facts. Accordingly, in the present case, Beech-Jones J was right to conclude that the trial judge's summing up was so unfair in its lack of balance that a miscarriage of justice occurred.
[105] McKell [45].
The plurality went on to make clear that trial judges should not court the risk of a miscarriage of justice involved in a comment suggesting how a disputed issue of fact should be resolved.[106] However, the plurality also made clear that this proposition did not detract from the duty of a trial judge to 'direct the jury as to the issues which arise on the evidence for their determination', and that there remained 'scope for comment by a trial judge'. Their Honours observed:[107]
It is not difficult to imagine cases where judicial comment, but not an expression of opinion on the determination of a matter of disputed fact, may be necessary to maintain the balance of fairness between the parties. In Green v The Queen, Barwick CJ, McTiernan and Owen JJ gave, as an example of a case where it would be 'proper and indeed necessary' for a trial judge to 'restore, but to do no more than restore, the balance', a case where:
during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt.
The present case affords another example of an appropriate occasion for judicial comment, in that fairness required that the trial judge correct the impression mistakenly left by the plainly untenable suggestion by the appellant's counsel to the jury that the appellant's online accounts were evidence that the appellant was a successful gambler. A correction of this kind, to correct errors of expression or errors that might otherwise adversely affect the jury's ability to decide the case fairly on the merits, is plainly not objectionable.
[106] McKell [46].
[107] McKell [53]- [54].
In Galipo v The State of Western Australia,[108] this court summarised the position following the High Court's decision in McKell in the following terms:
The fundamental task of a trial judge is to ensure a fair trial of the accused. That requires the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. It also requires the judge to ensure that the respective cases for the prosecution and the accused are accurately and fairly put to the jury. While not obliged to do so, the judge may also make any observations about the evidence that the judge thinks necessary in the interests of justice. If the trial judge's comments on the facts are apt to create a danger or a substantial risk that the jury might actually be persuaded of the accused's guilt by comments in favour of the prosecution case made with the authority of the judge, there will be a miscarriage of justice. (citations omitted)
[108] Galipo v The State of Western Australia [2019] WASCA 188 [45].
In Pyliotis,[109] the Victorian Court of Appeal held that a substantial miscarriage of justice arose where:
The judge's comments added force to the prosecution case and undermined the applicant's 'defence'. They were not necessary to restore any balance of fairness between the prosecution and defence, nor to correct errors that might otherwise have adversely affected the jury's capacity to decide the case fairly on the merits. In our opinion, there is a real risk that the comments may have unfavourably influenced the jury's consideration of the defence case.
[109] Pyliotis [78] - [79].
Similarly, in R v Emes,[110] the South Australian Court of Criminal Appeal identified the issue arising in such a case in the following terms:[111]
However, the issue for this Court is whether the trial Judge's comments in favour of the prosecution case, made with the authority of the Judge, were apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant's guilt.
The court found that, while the trial judge in that case presented both prosecution and defence submissions on a critical issue in a short summing up, he effectively presented a better address to the jury than the prosecutor had done, in a way that 'improperly skewed the balance in favour of the prosecution'.[112]

The approach required by McKell

[110] R v Emes [2019] SASCFC 75.

[111] Emes [32].

[112] Emes [34] - [35].

McKell recognises that the risk of unfairness to either side involved in a judicial comment about how a disputed question of fact should be resolved is such that trial judges should not court the risk.[113] However, when a trial judge does make a comment about a disputed question of fact, the question for this court is whether the risk has materialised. That risk may materialise if it is concluded that, considered as a whole, the summing up is unfair by its lack of balance, or fails to discharge the obligation to accurately and fairly put the case for the accused.
[113] McKell [46].
As the appellant's counsel properly accepted, the test posited in McKell is not simply whether there is a substantial risk that the jury might be persuaded of the appellant's guilt by a comment in favour of the prosecution case. The plurality in McKell saw the force in the observation that one unfortunate remark in a long and detailed summing up does not, at least necessarily, give rise to a miscarriage of justice. It remains necessary to read the trial judge's summing up as a whole.[114] Further, the decision in McKell must be understood in the context where the court was concerned with a summing up 'the content and tone of which … would not have been out of place in a powerful address by counsel for the prosecution'.[115] The conclusion reached was that the summing up in McKell was 'so unfair in its lack of balance that a miscarriage of justice occurred'.[116] The existence of a substantial risk that a jury might actually be persuaded by a judge's comments was posited, not as a stand-alone test, but as an answer to the submission that a miscarriage was not established as the jury could not be shown to necessarily have failed to independently consider the evidence. As Gageler J summarised the plurality's position in McKell with which he agreed:[117]
[T]he tone and content of the trial judge's comments on summing up so much favoured the prosecution as to have given rise to a substantial risk of those comments having persuaded the jury of the appellant's guilt.

Disposition

[114] McKell [39].

[115] McKell [40].

[116] McKell [45].

[117] McKell [58].

The present appeal does not concern a case where the trial judge failed to make it plain to the jury that they were the sole judges of the facts and were free to ignore his Honour's comments. Nor is this a case, such as Green v The Queen,[118] where the judge employed 'an emotional approach to the facts which reflected itself in the language he employed'. Nor can it be said that the trial judge used intemperate language in his address to the jury. Further, the trial judge's observation to the effect that Ms Ward's evidence was irrelevant was directed both to that part of her evidence relied on by the prosecution (the value of tobacco) and the aspects of her evidence on which the appellant relied.
[118] Green v The Queen (1971) 126 CLR 28, 34.
The only complaint which the appellant makes of the trial judge's long and detailed direction in a lengthy trial is of the 'comments' made in relation to Ms Ward's and Detective Sergeant Fogell's evidence.[119] The appellant does not submit in the present case that the trial judge's direction, taken as a whole, gave the prosecution the advantage of what was, functionally, a second prosecution address.
[119] Appeal ts 9.
However, in considering the overall fairness of the direction, it is important to recognise the significance of Ms Ward's and Detective Sergeant Fogell's evidence for the defence case.
The issue left for the jury by the trial judge in summarising the defence case was whether the evidence excluded any reasonable inference that the appellant was recruited to come to Australia to participate in the illegal importation of cigarettes or tobacco.
There were three legs to defence counsel's submissions in support of the defence case that there was a reasonable possibility the appellant thought he was smuggling tobacco rather than a border controlled drug:
(1)The evidence did not support a conclusion that the appellant was aware of the full scale of the importation operation, so the jury could not be satisfied he was aware that the expense involved in the entire operation was disproportionate to the potential profit.
(2)Ms Ward's evidence was to the effect that smuggling tobacco into Australia was a significant issue for authorities and could generate large profits. This objective circumstance suggested that it was not inherently implausible that the appellant may have thought they were smuggling tobacco.
(3)Detective Sergeant Fogell's evidence was to the effect that one of the reasons organised crime operates on a hierarchical structure was to limit the knowledge and information at different levels of the hierarchy. He agreed that the drug trade relies on secrecy, which could include secrecy within its own ranks and that on occasion people might be unknowingly involved in the drug trade. This evidence made it more likely that those who engaged the appellant may have given him false information about what was being imported and less likely that the appellant's asserted belief was inherently implausible.
In his charge to the jury, the trial judge in effect told the jury that the evidence of Ms Ward was irrelevant, and the evidence of Detective Sergeant Fogell on which the defence relied could be considered speculative and outside his expertise.
For the reasons explained above, in our view Ms Ward's evidence was relevant. We also note the inadequate statement as to the effect of Ms Ward's evidence discussed above.
Further, Detective Sergeant Fogell's expertise and capacity to express an opinion as to the secrecy commonly involved in the operations of criminal organisations engaged in drug trafficking was not challenged by the prosecution. It was of significance for the appellant's defence that a Crown witness who was a police officer agreed with propositions put to him by defence counsel. It was appropriate for the trial judge to direct the jury as to the need to assess an expert witness' evidence having regard to the extent of the witness' expertise. But the evidence did not require Detective Sergeant Fogell's evidence to be treated in the manner suggested by the trial judge's comments. It was unfortunate that the trial judge chose this aspect of Detective Sergeant Fogell's evidence to make the point, in a manner likely to damage the argument which the evidence allowed counsel for the appellant to properly make as a core part of her submissions.
Standing on its own, the comment about Detective Sergeant Fogell's evidence may not have given rise to a miscarriage of justice. However, when combined with the impugned observations about Ms Ward's evidence, the comments about Detective Sergeant Fogell's evidence impacted on the fairness of the way in which the trial judge put the defence case to the jury.
The effect of the impugned observations and comments was to cut the second and third legs identified at [139] above out from under the defence case. Expressly in regard to Ms Ward's evidence, and referentially in regard to Detective Sergeant Fogell's evidence, the summary of the defence case was accompanied by a critique which tended to undermine two of the three main points advanced by the appellant's closing submissions. It was open for defence counsel to have made those closing submissions on the basis of evidence which was before the jury. His Honour's observations and comments tended to detract from these important aspects of the defence case which he was obliged to fairly put to the jury. In that manner, in our view, the trial judge failed to properly discharge his Honour's obligation to fairly put the defence case to the jury.
The impugned observations and comments were unnecessary for a fair and accurate summary of the cases presented by each of the parties. They were apt to create a substantial risk that the jury might actually be persuaded of the appellant's guilt by observations and comments made with the authority of the judge in favour of the prosecution. That is, there is a significant risk that the jury might have been persuaded by the trial judge's comments to reject two of the main three arguments put by the defence against the prosecution's submission that the appellant's account was inherently implausible. This constitutes a miscarriage of justice in all the circumstances of this case.
There was some debate as to the strength of the appellant's defence. It is unnecessary for this court to enter into that debate. As the plurality observed in McKell, the circumstance that a case against an accused appears to be a strong one in no way diminishes the obligation to ensure a fair trial.[120] In a passage referred to in McKell, it was observed:[121]
A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.
[120] McKell [44].
[121] R v Meher [2004] NSWCCA 355 [84], quoting R v Tomazos Unreported NSWCCA 6 August 1971.
Again, there is no suggestion that the proviso in s 30(4) of the Criminal Appeals Act could be engaged in the present circumstances to allow this court to dismiss the appeal on the ground that no substantial miscarriage of justice has actually occurred.
There is no merit in the respondent's submission that counsel for the appellant failed to make any complaint about the trial judge's direction at trial. As noted above, counsel for a co-accused had raised the issue about Detective Sergeant Fogell's evidence and the trial judge had ruled against him on the point. The appellant's counsel raised the point about the relevance of Ms Ward's evidence, and the trial judge had ruled that his charge about Mr Ching's submissions would deal with the issue, and relate what was said back to the appellant, 'if I think I need to say anything more about that'.[122] His Honour may be taken to have made any additional comments he thought necessary in the passage quoted at [75] above. The judge having made his Honour's rulings on these issues, it was appropriate for counsel to abide by the rulings.
[122] Trial ts 3479.

The respondent's submission that the trial judge's observations were properly identified as comments rather than directions does not answer the appellant's complaint. The appellant's complaint is that a miscarriage of justice arose even if it was made clear to the jury that they were not bound by the comments. It is clear that the failure to fairly put the defence case is not cured by qualifying comments adverse to the defence case with phrases such as 'it is a matter for you'.
For the above reasons, in our view, read as a whole, the trial judge's charge to the jury did not fairly put the defence case to the jury, resulting in a miscarriage of justice in the appellant's trial.

Orders

For the above reasons, we would make the following orders in the appeal:
(1)Leave to appeal is granted on the sole ground of appeal.
(2) The appeal is allowed.
(3)The appellant's conviction on Supreme Court indictment INS 62 of 2017 is set aside and a new trial is ordered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell
4 SEPTEMBER 2020