Chuang v The State of Western Australia

[2021] WASCA 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CHUANG -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 49

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   18 SEPTEMBER 2020

DELIVERED          :   19 MARCH 2021

FILE NO/S:   CACR 105 of 2019

BETWEEN:   CHO-LUNG CHUANG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 106 of 2019

BETWEEN:   CHO-LUNG CHUANG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   TROY DCJ

File Number            :   IND 468 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of offering to sell a prohibited drug to another contrary to s 6(1)(c) of the Misuse of Drugs Act1981 (WA) - Whether trial judge erred in law and occasioned a miscarriage of justice by failing to give the jury adequate directions in respect of the lies told by the appellant - Turns on own facts

Criminal law and sentencing - Appeal against sentence - Sentence of 9 years' imprisonment imposed - Whether the sentencing judge made an express error of fact - Parity principle - Manifest excess

Legislation:

Criminal Code (WA), s 7(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)

Result:

CACR 105 of 2019:
Leave to appeal granted on ground 1
Appeal dismissed

CACR 106 of 2019:
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

CACR 105 of 2019

Counsel:

Appellant	:	S H King
Respondent	:	J A Scholz

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

CACR 106 of 2019

Counsel:

Appellant	:	S H King
Respondent	:	J A Scholz

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Baker v The State of Western Australia [2020] WASCA 117

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310

Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342

House v The King [1936] HCA 40; (1936) 55 CLR 499

Law v The Queen [2019] WASCA 81

Leung v The State of Western Australia [2020] WASCA 81

Newhill v The State of Western Australia [No 2] [2015] WASCA 121

R v FAV [2019] QCA 299

R v Kijurina [2017] NSWCCA 117

R v Lacey & Lacey [2011] QCA 386

R v Sheppard [2010] QCA 342

R v Thomas [2015] SASCFC 55

The State of Western Australia v Doyle [2017] WASCA 207

Tirkot v The State of Western Australia [2018] WASCA 41

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

JUDGMENT OF THE COURT:

1. On 14 December 2018, following a five‑day trial in the District Court before Troy DCJ and a jury, the appellant was convicted of an offence that, on 13 July 2016 at Victoria Park, he offered to sell a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act1981 (WA) (MDA).[1]

   [1] ts 540.

2. On 13 June 2019, his Honour sentenced the appellant to 9 years' imprisonment with eligibility for parole, backdated to commence on 27 November 2018.[2]

   [2] ts 561 - 562.

3. The appellant now appeals to this court against his conviction and sentence. 

4. With respect to the appeal against conviction, the appellant originally relied upon four grounds of appeal, all of which were abandoned during the course of the appeal hearing.[3]  At the appeal hearing, the appellant sought and was given leave to rely upon a substituted ground of appeal, as follows:[4]

   The trial judge erred in law and occasioned a miscarriage of justice by failing to give adequate directions in his summing up as to the use the jury could make of any deliberate lies told by the accused in his electronically recorded interview with police.

   [3] Grounds 1 and 2 were abandoned at appeal ts 37 - 38.  Grounds 3 and 4 were abandoned at appeal ts 44.

   [4] Appeal ts 37 - 38.

5. In our opinion, the substituted ground of appeal has not been made out and the appeal against conviction should be dismissed. 

6. In respect of the appeal against sentence, the appellant advances three grounds of appeal.  Ground 1 alleges that the trial judge made an express error of fact, ground 2 alleges an infringement of the parity principle and ground 3 alleges that the sentence of 9 years' imprisonment was manifestly excessive.

7. In our opinion, none of these grounds of appeal have been made out and the appeal against sentence should be dismissed.

8. Our reasons for these conclusions are as follows.

The appeal against conviction

The indictment

1. On 17 July 2017, an indictment was presented against the appellant, Kwok‑Kwan Devil Law and Chi Hung Lee.[5]  Count 1 alleged that on 11 May 2016 at Innaloo, Mr Law and Mr Lee offered to sell a prohibited drug, namely methylamphetamine, to another.  Count 2, the charge of which the appellant was ultimately convicted, alleged that on 13 July 2016 at Victoria Park, Mr Law and the appellant offered to sell a prohibited drug, namely methylamphetamine, to another.  Count 3 alleged an offence only against Mr Law, namely, that on the same date and at the same place as in count 2, Mr Law was in possession of $154,950 in money that was reasonably suspected of being unlawfully obtained. 

The pleas

[5] BGAB 1.

1. Prior to the appellant's trial, Mr Law pleaded guilty to each of counts 1, 2 and 3.  Mr Lee pleaded guilty to count 1.  Mr Law was later sentenced by Birmingham DCJ.  The details of the sentences imposed upon Mr Law will be set out when we deal with the appellant's appeal against sentence.  It is not necessary to refer to the sentence imposed on Mr Lee.

Count 2

1. Section 6(1)(c) of the MDA reads:

   (1)A person commits a crime if the person -

   …

   (c)sells or supplies, or offers to sell or supply, a prohibited drug to another person.

2. An offence contrary to s 6(1)(c) of the MDA is complete even if the accused did not, or did not intend to, sell or supply a prohibited drug. The offence is complete upon the accused making an offer to sell or supply the prohibited drug with the intention that the offer be regarded by the offeree as genuine. The relevant intention is not the accused's intention to actually sell or supply. The relevant intention of the accused is bound up with the making of the offer itself.[6]

The evidence

[6] Baker v The State of Western Australia [2020] WASCA 117 [57] ‑ [58].

1. The appellant disputed little, if any, of the evidence adduced at trial by the State.[7]

   [7] ts 518.  See also defence counsel's opening, ts 209.

2. Throughout 2015 and 2016, officers from the Western Australian Police, the Australian Federal Police and the Australian Criminal Intelligence Commission were involved in a joint task force investigating the suspected importation and supply of methylamphetamine into Western Australia.[8]

   [8] ts 200.

3. One target of this operation was Mr Law.  In May 2016, police officers were lawfully intercepting and monitoring a mobile telephone service being used by Mr Law.  It was discovered that he was communicating with a person in Hong Kong who was sometimes referred to as 'Big Brother'.  In these telephone conversations, Mr Law was sometimes referred to as 'Little Brother'.[9]

   [9] ts 200.

4. Mr Law was also under physical surveillance by the police.  In about mid‑June and in early July 2016, Mr Law was observed meeting the appellant.  As a result, police obtained a warrant to intercept the appellant's mobile telephone service from 8 July 2016 onwards.  It was discovered that the appellant and Mr Law had each been communicating with the same Hong Kong telephone number, which ended with the numbers '346'.[10]

   [10] ts 200 - 201.

5. The State alleged that the person in Hong Kong was essentially coordinating the actions of the appellant and Mr Law in respect of a supply of drugs to a third person, Mr Jackson Lofts, on the afternoon of 13 July 2016.[11] 

   [11] ts 201.

6. With respect to the events of 13 July 2016, the State adduced evidence of (1) intercepted telephone conversations between the person in Hong Kong and the appellant, (2) physical surveillance undertaken by various law enforcement officers, (3) searches conducted under warrant at the appellant's place of business and at his home, and (4) interviews between police and the appellant.[12]  The following chronology is taken from this evidence.[13]

13 July 2016

[12] As part of the prosecution case, the State tendered a schedule which contained a transcript of 20 calls between the person in Hong Kong and the appellant between 9 July 2016 and 13 July 2016: exhibit 15.2, BGAB 46 - 52. The conversations were translated from Cantonese into English by an accredited interpreter, Ms Lisa Chamberlin. The appellant admitted, pursuant to s 32 of the Evidence Act 1906 (WA), that the content of the 20 recorded conversations as translated and certified by Ms Chamberlin was a true and correct record of the conversations: exhibit 15.3, BGAB 53; ts 353 - 355.

[13] ts 522 - 529.

1. At 12.47 pm on 13 July 2016, the following exchange took place:

   Hong Kong:  Get ready, once you receive a call, you should go to Little Brother's place to collect.

   Appellant:  Okay, then, when, when?

2. At 3.32 pm, the person in Hong Kong said to the appellant:

   Hong Kong:  … you will collect the money tonight, what time then if you can collect the money at six o'clock?

   The appellant replied:  Right, let's take it one step at a time, bro, I, I will contact you once I collect, do you understand?  It is not done yet, don't get too anxious.  (emphasis added)

3. At 4.01 pm, the person in Hong Kong and the appellant conversed as follows:

   Hong Kong:  Oh.  Where are you now? 

   Appellant:  I am driving, I am getting ready to leave.  I am.

   Hong Kong:  Getting ready to leave?

   Appellant:  Yep, what's up?

   Hong Kong:  Then, I will get Little Brother to go over closer to the time.  You ring me when you arrive, I will get him to go over.

   Appellant:  Do you mean arrive there?

   Hong Kong:  Okay, I will when I arrive.

   Appellant:  As long as I arrive there before 4.30 right?

   Hong Kong:  No, you are supposed to arrive by 4.30, you have not even left yet.

   Appellant:  I am on my way, on my way.

   Hong Kong:  You said you were going to arrive at 4.30.

   Appellant:  I will arrive in 15 or - - -

   Hong Kong:  Are you on your way yet?

   Appellant:  Will arrive in 15 or 20 minutes. Relax, fuck.

   Hong Kong:  Okay.  Um, good.

   Appellant:  It is taken care of.  Okay.  (emphasis added)

4. At 4.05 pm, the person in Hong Kong and the appellant spoke again in these terms:

   Hong Kong:  Hello, you are at the front door, he is on his way now.

   Appellant:  Front door?  Is this the location of his before, or mine?

   Hong Kong:  His location before.  So long as you go to the front door.

   Appellant:  Got it.

   Hong Kong:  Park your car at the front door, Jason is at the rear door, has arrived.

   Appellant:  Okay, I understand.  Has he arrived?

   Hong Kong:  Yes, hurry up.

   Appellant:  Okay, okay, okay, coming, coming.

   Hong Kong:  He will arrive at 4.30, 4.30, will arrive at 4.30, at 4.30, has not arrived yet.  I am concerned you two could bump into each other.  (emphasis added)

5. Later in this conversation, the following exchange took place:

   Appellant:  Okay, okay.  Then you know that I will give to Little Brother later, to view the car sample.

   Hong Kong:  Um, good.

   Appellant:  That's all.  Okay, bye‑bye.  (emphasis added)

6. At 4.08 pm, the person in Hong Kong and the appellant spoke again.  Towards the end of the conversation, the appellant told the person in Hong Kong:

   I am almost, I am driving now, I will let him know to wait at the other side once I arrive, I will wait for him at the other side, there is no coffee shop that side.  (emphasis added)

7. At 4.14 pm, a covert operative observed Mr Lofts in his LandCruiser at a petrol station in Burswood.  At 4.15 pm, Federal Agent Cormack observed Mr Law in the front passenger seat of a white Toyota Corolla travelling towards the Victoria Park Central shopping centre (the shopping centre) which occupies a large block of land between Albany Highway and Shepperton Road in Victoria Park.

8. At 4.17 pm, Federal Agent Cormack observed the white Corolla, in which Mr Law was a passenger, park near Duncan Street, which is along the western boundary of the shopping centre.  Federal Agent Cormack observed Mr Law get out of the car, carrying only his sunglasses and a mobile telephone. 

9. Between 4.17 pm and 4.19 pm, Mr Law was out of Federal Agent Cormack's sight.  At about 4.19 pm, Federal Agent Cormack observed the appellant driving his BMW sedan through the shopping centre carpark with Mr Law in the front passenger seat.  Federal Agent Cormack did not observe Mr Law get into the BMW.

10. At 4.20 pm, Federal Agent Cormack observed Mr Law, for the first time, get out of the BMW in the carpark near the main entrance of the shopping centre.[14]  Federal Agent Cormack did not observe Mr Law carrying anything other than sunglasses and a mobile telephone. 

    [14] See an overhead photograph of the shopping centre in exhibit 3.2, which Federal Agent Cormack marked with an X: BGAB 26.

11. At 4.23 pm, Mr Law was observed to return to the appellant's BMW. 

12. Meanwhile, at 4.24 pm, Mr Lofts arrived in the vicinity of the shopping centre in his LandCruiser.  At 4.25 pm, Mr Lofts was observed to exit his vehicle.  At approximately the same time, Mr Law was observed to get out of the appellant's BMW, for the second time, carrying a blue cloth shopping bag.  Up to this point, Mr Law had only been seen carrying his sunglasses and a mobile telephone.

13. At 4.38 pm, Mr Law was seen walking through the shopping centre with the blue bag.  At 4.40 pm, whilst carrying the bag, he met Mr Lofts.  Shortly after they met, the two men were observed to walk together towards McMillan Street, where Mr Lofts' LandCruiser was parked.  At 4.42 pm, Mr Law and Mr Lofts both entered the LandCruiser.  At 4.44 pm, Mr Law got out of the LandCruiser and walked away from the vehicle.  Instead of the blue bag he had been previously carrying, Mr Law was observed carrying a black and white Footlocker shopping bag. 

14. As this happened, law enforcement officers descended upon the LandCruiser and arrested Mr Lofts.  The officers searched the LandCruiser and found the blue bag previously carried by Mr Law.  An examination of the blue bag revealed that it contained approximately 3 kg of crystalline material which, to the investigating police officers, appeared to be methylamphetamine in crystal form.

15. Upon the police descending upon Mr Lofts' vehicle, Mr Law ran away from the LandCruiser in the direction of the appellant, who remained in his BMW vehicle in the shopping centre carpark.  Police officers arrested Mr Law inside the shopping centre.  The officers found the Footlocker bag that had been carried by Mr Law about 10 m away from him.  Inside the bag was $154,950 in $50 notes. 

16. At 4.46 pm, the appellant spoke to the person in Hong Kong.  The relevant parts of the conversation are as follows:

    Appellant:  Hey, bro.

    Hong Kong: What's up?

    Appellant:  I saw Little Brother run inside from my side, for some reason.

    Hong Kong:  Then what?  Anyone running after him?

    Appellant:  No, no one was running after him, but I heard some sound, I don't know what sound.

    …

    Hong Kong:  But nothing happened outside?

    Appellant:  Nothing outside.  But I could see one person run inside.

    Hong Kong:  Huh?

    Appellant:  Er, a, a person wearing a cap.

    Hong Kong:  Running after him?

    Appellant:   Yep, just then, I think.  That's why I am ringing right now.

    …

    Hong Kong:  They should be opposite, I could not see.  Have you not received the money yet?

    …

    Appellant:  Received, Little Brother has the bag of money in his hands.  But he, he did not run towards me, he was opposite, there was, do you understand what I'm saying?  He did not run to where I was, he, he was opposite, he was walking out in the beginning, for some strange reason, he was running towards this way, and ran inside, do you understand what I am saying?

    Hong Kong:  Eh.

    Appellant:  Then if there is anything, you ring me immediately, I will immediately leave.  If something happens.  Huh?

    Hong Kong:  You stay there, wait for a while.  (emphasis added)

17. At 4.48 pm, the appellant was observed eating a burger in his car.  At 4.55 pm, Federal Agent Cormack observed the appellant drive away in his BMW from the shopping centre.  The appellant's manner of driving appeared normal. 

18. At about 8.35 pm, the appellant was arrested by police at his hairdressing salon in Kent Street, Karawara.  Among other things, police found a BMW car key and seized the appellant's mobile telephone.  At the same time, police officers executed a search warrant at the appellant's house at 13 Meadows Close, Kardinya.  During the search, the police discovered 17 bags of rock sugar and a heat‑sealing machine.

19. The search of the salon in Karawara was video‑recorded.  The appellant was, at that time, spoken to under caution by Detective Senior Constable Mayo.  An edited version of this interview was played to the jury and tendered in evidence as part of the State's case.[15] 

14 July 2016

[15] Exhibit 12.

1. At about 1.22 am on 14 July 2016, the appellant took part in a video record of interview conducted by Detective Warren Scott and Detective Mayo.  This interview was conducted under caution.  An edited version of this interview was played to the jury as part of the State's case.[16]

   [16] Exhibit 13.

2. Later in these reasons, we will refer in greater detail to the interviews referred to in [37] and [38] above.  For present purposes, it is enough to say that, in the course of these interviews, as the appellant admitted in his evidence at trial, he told a number of lies.  The ground of appeal relied upon by the appellant concerns the use of the lies the appellant told in these interviews.

3. A subsequent analysis of the crystalline material found in the blue bag revealed that it was not, as the investigating officers believed, methylamphetamine.  Rather, it was rock sugar.  The appearance of the rock sugar in the blue bag was very similar to the rock sugar the police found in their search of the appellant's home.

The State's case

1. In a nutshell, the State's case at trial was as follows.  In late June and early July, the appellant and Mr Law, at the direction of the person in Hong Kong (sometimes called Kem by the appellant, or known by the name 'Big Brother'), offered to sell 3 kg of methylamphetamine to Mr Lofts for $155,000.  The State's case was that the appellant and Mr Law intended to 'rip off' Mr Lofts by providing him with 3 kg of rock sugar, packaged to look like methylamphetamine, in exchange for $155,000 cash and that this was, in fact, what happened on 13 July 2016.  The appellant was involved in the packaging of 3 kg of rock sugar, a substance which has a close resemblance to methylamphetamine in a crystalline form.  He placed, or facilitated the placing of, the rock sugar in a blue bag, which he took in his car to the carpark of the shopping centre to meet Mr Law.  The meeting was coordinated by 'Big Brother' in Hong Kong.  The appellant met with Mr Law in his BMW vehicle and gave the blue bag containing the rock sugar to Mr Law.  Mr Law got out of the car and carried the blue bag to Mr Lofts, who had parked his vehicle close to the shopping centre.  Inside Mr Lofts' vehicle, Mr Law handed the blue bag to Mr Lofts who, believing it to be methylamphetamine, gave Mr Law the Footlocker bag which contained the $154,950 in cash. 

2. The State's case as to the making of the offer the subject of the charge was circumstantial and was based on a combination of the telephone intercept material, the observations made by law enforcement officers on 13 July 2016, the items found by police during the search of the appellant's house (most notably the 17 bags of rock sugar), and statements made by the appellant during the search of his business premises and his interview with police on 14 July 2016.

3. The State alleged that the appellant and Mr Law were joint principal offenders, pursuant to s 7(a) of the Criminal Code (WA) (Code), in that each did acts necessary to complete the offence. In the case of the appellant, the State alleged that he created the fake methylamphetamine, and/or took part in its packaging, and/or delivered the blue bag which contained the rock sugar to Mr Law in his car at the shopping centre on 13 July 2016 with the intention that Mr Law would provide it to Mr Lofts and that Mr Lofts, believing it was methylamphetamine, would hand over $155,000 in cash. It was not the State's case that the appellant would be guilty if he merely attended at the shopping centre with the intention of taking delivery of the cash which had been handed by Mr Lofts to Mr Law.

The defence case at trial

1. The appellant elected to testify at his trial. 

2. Based on his testimony at trial, the appellant's defence was as follows. 

3. A friend of the appellant who lived in Hong Kong telephoned the appellant and asked him to lend some money to a person in Perth, who the man in Hong Kong described as his brother.  The appellant agreed to do so.  The person to whom he was to lend the money was Mr Law.[17] 

   [17] ts 385 - 386.

4. The appellant said that, prior to 13 July 2016, he met with Mr Law at the McDonald's store in Myaree on at least two occasions.  On these occasions, the appellant lent Mr Law money, which the appellant said was 'living cost money'.[18]  The total of sum of money the appellant lent to Mr Law was 'around 2,000'.[19]

   [18] ts 385.

   [19] ts 386.

5. The appellant testified that, on 13 July 2016, as a result of arrangements made through his friend in Hong Kong, he drove to the shopping centre where he met Mr Law in the carpark.  The purpose of this meeting was for Mr Law to repay his debt to the appellant.[20]

   [20] ts 387.

6. The appellant said that Mr Law, when he first got into the appellant's car, was carrying a blue bag.  The appellant said that he did not know what was in the bag, nor did he have any interest in its contents.[21]  The appellant said that Mr Law got out of the appellant's vehicle, leaving the blue bag in the car, but he returned a short time later.  When Mr Law got back into the car, he gave the appellant $200.  Mr Law then got out of the appellant's vehicle a second time.  On this occasion, Mr Law took the blue bag with him.[22]

   [21] ts 388 - 389.

   [22] ts 389.

7. The appellant said that he remained in his car, eating a burger.  While he did so, a man came to his car asking for coins.  The appellant said that he gave the man some coins.  A short time later, he saw Mr Law being chased by someone.  The appellant said that he had no idea why Mr Law was running or who was chasing him.[23]

   [23] ts 390.

8. In relation to the intercepted telephone conversations, the appellant said that the person he spoke to in Hong Kong was his friend, Kem.[24]  The appellant agreed that, in their conversations, Mr Law was referred to as 'Little Brother'.[25]  In essence, the appellant said that in the conversations with Kem, the reference to money was a reference to the money Mr Law owed the appellant, and was not about any money which had been given to Mr Law by Mr Lofts.  The appellant said that when he saw Mr Law running through the carpark, he was unaware that he was in possession of a bag containing an amount of Australian cash.[26]

   [24] ts 393.

   [25] ts 398.

   [26] ts 405.

9. In relation to the rock sugar found by police at his home, the appellant acknowledged that the rock sugar was his.  He said that he purchased it from the supermarket 'for health … and we use that for everything, coffee, tea, dessert, cake'.[27]  The appellant denied putting 3 kg of rock sugar into the blue bag and handing that bag to Mr Law in the carpark on 13 July 2016.[28]

   [27] ts 391.

   [28] ts 391.

10. In short, the appellant's defence at trial was that he had nothing to do with the alleged 'rip off' of Mr Lofts.  His purpose in attending at the shopping centre on the afternoon of 13 July 2016 was to be repaid the moneys that he had lent to Mr Law.  He denied packaging the rock sugar and giving it to Mr Law with the intent that Mr Law would provide it to Mr Lofts in exchange for $155,000.  He denied any knowledge of the money Mr Law was given by Mr Lofts or of any plan that he would receive that money from Mr Law.

Lies - opening addresses by the prosecution and defence counsel

1. In his opening address to the jury, the prosecutor said that it was the State's case that the version of events the appellant gave in his interviews to the police 'was a deliberate lie' because the appellant made no mention of meeting with Mr Law, nor of Mr Law 'having gotten into his car on two occasions for a number of minutes each time'.[29]  The prosecutor continued:[30]

   So as I say, it will ultimately be a matter for you as to whether the version of events given by the accused in the interviews is consistent with what you see in the video footage and it will ultimately be a matter for you whether it's a deliberate lie that he told or not and if so, what the significance of that is.  So all I ask you to do is just pay attention, pay close attention to that as the evidence unfolds before you.

   [29] ts 207.

   [30] ts 208.

2. The prosecutor did not expressly put to the jury, as part of the State's case, that the 'deliberate lie' allegedly told by the appellant was relied upon as evidence of the appellant's consciousness of guilt. 

3. In his opening address to the jury, defence counsel made no reference to any lies allegedly told by the appellant to the police. 

The lies told by the appellant

1. As we have mentioned, the appellant was interviewed by Detective Mayo at the appellant's hair salon in Karawara after his arrest on the evening of 13 July 2016.  The appellant was also interviewed by Detective Scott and Detective Mayo in the early hours of 14 July 2016.

2. In each of these interviews, as he admitted in his evidence, the appellant told lies.  Relevantly to this appeal, the appellant agreed, under cross‑examination, that he lied in the police interview on 13 July 2016 when he:

   (a)said that the reason he went to the shopping centre at about 4.30 pm on 13 July 2016 was to shop;[31]

   (b)said that the only person he spoke to when he was in the shopping centre carpark was a man who came to his car window, asking for money;[32] and

   (c)deliberately failed to mention that 'Little Brother' (Mr Law) had been in the appellant's car twice.[33]

   [31] Transcript of exhibit 12, page 37; ts 493.

   [32] Transcript of exhibit 12, pages 41 - 44; ts 493 - 494. 

   [33] ts 494 - 495.

3. In addition, with respect to the interview on 14 July 2016, the appellant admitted that he lied when he denied that he had seen the blue bag in his car.[34]

The appellant's evidence as to lies

[34] Transcript of exhibit 12, pages 24 - 25; ts 496 - 498.

1. The appellant was not asked any questions in examination‑in‑chief about the answers he gave in the police interviews which were conducted on 13 July 2016 and 14 July 2016, including about whether he had lied in them.

2. The appellant was cross‑examined at length by the prosecutor.  Towards the end of the cross‑examination, the prosecutor asked the appellant about some of the answers he gave in his police interviews, and the following exchange took place:[35]

   [35] ts 495.

   [T]hat your sole purpose for meeting with Little Brother at the shopping centre was just to receive money that loaned?---Yes.

   - - - and you say that's a completely innocent purpose, don't you?---Yes, I lent the person money and I hook up with these things.

   You see, Mr Chuang, if that were so you had no reason not to give that explanation to the police when Detective Mayo first asked you about it that day, did you?---That time when you guys get me the only thing I'm thinking is my son, my family, my career.

   Mr Chuang, Mr Chuang - - -?---I lied.  I admit it, okay.

   - - - isn't it the case, Mr Chuang, if you really were there for an innocent purpose then what did you have to fear by giving a truthful answer to the question?---First of all, you know how I get done?  The police lie to me - - -

   No.  Can you please just answer the question I'm asking you?---Yep, okay.  What's the question again?

   If your real purpose for being at the shopping centre - if your real purpose for meeting with Little Brother on that day was an innocent one- - -?---Yes.

   - - - what did you have to fear by telling Detective Mayo that - - -?

   ---Because I try to distant with whatever he did.  (emphasis added)

3. The cross‑examination continued:[36]

   Right.  Is the real reason this.  You never said anything about Mr Law getting into your car because you knew there was no innocent explanation?‑‑‑No.  First - yeah, okay.  

   You knew, Mr Chuang you knew that you had provided him with the blue bag containing the fake drugs, didn't you?‑‑‑No.

   And you knew, Mr Chuang, that he had exchanged that bag for a bag of cash with the third person at the shopping centre, didn't you?‑‑‑No, I don't know.

   And, Mr Chuang, you were there to receive that cash in exchange for the fake drugs?‑‑‑No.

   That's the reason you never told the truth about meeting Little Brother, isn't it?‑‑‑No.  The truth is why you not show me why I get into the picture, where's the video surveillance.  Where is the video surveillance when they get into my car.  Why you not put it?  Why there's no video surveillance, uh, let me asking you now.  (emphasis added)

   [36] ts 496.

4. The prosecutor further questioned the appellant about the blue bag:[37]

   Well, Mr Chuang, you were an - you're an innocent man though, aren't you?---Then what?  Did I say I did a crime?  I said no, I've got nothing to do with it.  All I'm trying to do is, like, don't wanted anything to do with it.

   Mr Chuang, you said about that blue bag, you had never seen it, didn't you?---I lie, yes.  (emphasis added)

   [37] ts 497.

5. Finally, the following exchange took place:[38]

   Please.  Do you agree you were asked about the bag in the interview?---Yeah.  And then?

   You said you've never seen the bag before?---Yep.

   That was another lie, wasn't it?---Yeah, it's a - it's a lie, I lie in the interview.  I just - - -

   All right?--- - - - miss him, okay, I try to distance him.

   Well, Mr Chuang, I suggest to you the reason you lied was is because you'd given that bag to Little Brother inside your car.  You gave him that bag, that's why you lied, isn't it?---No, I don't lie.  I had nothing to do with that case, okay?  (emphasis added)

The prosecutor's closing address

[38] ts 498.

1. The prosecutor's closing address was carefully structured. 

2. At the outset of the address, the prosecutor told the jury that he would address them under 'three broad headings'.[39]  The prosecutor identified the three headings in these terms:[40]

   First of all I'll address you in relation to what I submit you can conclude from the occurrence of the exchange of bags between Mr Law and Mr Lofts at the shopping centre on 13 July 2016.

   Then I will address you in relation to the evidence that the accused has given in this case and how you might go about analysing some of that.

   And finally, members of the jury, I'll address you in relation to the facts and circumstances from which the prosecution contends you could otherwise conclude the guilt of the accused beyond reasonable doubt in this case.  (emphasis added)

   [39] Closing addresses, ts 2.

   [40] Closing addresses, ts 2.

3. Relevantly to the second (italicised) portion of the three 'broad headings' referred to above, the prosecutor submitted that the jury should 'comfortably reject' the appellant's 'completely innocent explanation for his meeting with Mr Law' for five reasons.[41]  The first of these reasons was that 'the evidence he's given in court is completely inconsistent with the answers that he gave to the police in the interviews that he participated in on 13 and 14 July 2017'.[42]  The prosecutor then referred to 'a number of deliberate lies' the appellant told in those interviews.  In particular, the prosecutor invited the jury to view the recording of the interview on 13 July 2017 at the Karawara salon.  The prosecutor submitted that the appellant's demeanour in that interview was 'demonstrably uncomfortable'.  The prosecutor then said to the jury:[43]

   I submit to you that his responses at that point in time were evasive, there were long pauses between him being asked questions and making a response, and much of the information that you heard him give in those interviews, particularly that first interview, you now know was not - it was either a deliberate lie or at best, members of the jury, not completely frank and truthful. 

   You see, if there was an innocent explanation for him meeting with Mr Law on that afternoon, then you might think, 'Well, what was the need for him to give a false account to Detective Senior Constable Mayo?'  And he was specifically asked about that blue bag by Detective Scott in the interview later that night.  Specifically asked about it.  'Have you see[n] that blue bag before?' and he said, 'No'. 

   Now, what I submit to you, members of the jury, is those lies should bear considerably upon your assessment of the evidence that he gave to you in this court, particularly when the evidence he's given here today is that, 'There's a completely innocent explanation for what I was doing at that shopping centre.  There's a completely innocent explanation for what I was doing meeting with Mr Law'.  So that should bear considerably upon your assessment of the truthfulness of the evidence that he gave in court.  (emphasis added)

   [41] Closing addresses, ts 4 - 5.

   [42] Closing addresses, ts 5.

   [43] Closing addresses, ts 5.

4. After dealing with the lies told by the appellant, the prosecutor then turned to the remaining four reasons why the jury should reject the appellant's exculpatory testimony.  It is unnecessary to summarise them at any length.  It is enough to say that the prosecutor submitted that:

   (a)the appellant's evidence was inconsistent with any 'sensible appraisal' of the telephone intercept material;[44]

   (b)the appellant's evidence concerning the loan of moneys to Mr Law was implausible;[45]

   (c)any notion that Mr Law was acting alone was implausible;[46] and

   (d)the appellant's explanation that he went to the shopping centre to receive payment of the loan from Mr Law, at the same location and at the same time Mr Law was intending to 'rip off' a purchaser, was implausible.[47]

   [44] Closing addresses, ts 6.

   [45] Closing addresses, ts 6.

   [46] Closing addresses, ts 7.

   [47] Closing addresses, ts 7.

5. The prosecutor then turned to the third of the broad headings he referred to at the beginning of his closing address.  The prosecutor submitted to the jury that there were six factual circumstances which, considered together, proved the appellant's involvement in the offer to sell methylamphetamine to Mr Lofts.[48]  The six 'key facts and circumstances' were:[49]

   (1)the appellant was receiving directions and instructions from somebody in Hong Kong in relation to the meeting at the shopping centre and the collection of money at that location;

   (2)the appellant was present at the same place and at the same time as the exchange of the fake drugs for money took place;

   (3)on the State's case, Mr Law received the blue bag containing the fake drugs while inside the appellant's BMW;

   (4)after Mr Law made the exchange of the fake drugs for money with Mr Lofts, Mr Law appeared to be making his way back to where the appellant's car was parked;

   (5)the content of the telephone conversation between the appellant and 'Big Brother' at 4.46 pm on 13 July 2016 (see [34] of these reasons); and

   (6)the presence of the bags of rock sugar at the appellant's home.

   [48] Closing addresses, ts 8.

   [49] Closing addresses, ts 8 - 9.

6. The prosecutor then elaborated on these six factual circumstances.  In doing so, the prosecutor made no reference to any lie apparently told by the appellant in the context of the third broad category of the closing address.

Discussion between defence counsel and trial judge about lies

1. Shortly after the prosecutor completed his closing address, defence counsel, in the absence of the jury, raised with his Honour that the prosecutor had alleged that the appellant had told 'deliberate lies to interviewers'.[50]  Defence counsel then said:

   Now, generally speaking, for obvious reasons, it's the convention, if not the requirement, for the prosecution to tell the court in advance and thereby the defence if they're seeking to categorise lies as consciousness of guilt lies[.]

   [50] ts 507.

2. The trial judge said, in effect, that he understood from the prosecutor's opening that, as the prosecutor had alleged in his opening address that the appellant had told 'deliberate lies', the prosecutor would 'be asking the jury to regard those lies as consciousness of guilt lies'.[51]

   [51] ts 507.

3. Defence counsel then sought to clarify his Honour's statement in these terms:[52]

   [Defence counsel]:  And so your Honour reads deliberate as consciousness of guilt ‑ ‑ ‑

   [His Honour]:  Yes.

   [Defence counsel]:  ‑ ‑ ‑ other than - or rather than deliberate for some reason other than to avoid responsibility [for] the commission of the offence.

   [His Honour]:  I read [the Prosecutor's] opening as foreshadowing that this was to be a case where the lies were deliberate lies told out of a consciousness of guilt.

   [Defence counsel]:  So be it.

   [52] ts 507 - 508.

4. His Honour then raised with counsel the question of when he should commence his summing up. Defence counsel expressed the view that the summing up should commence the following day.  The prosecutor said he had nothing to add.

5. The prosecutor was not asked, nor did he seek, to participate in the discussion on lies told by the appellant.

Defence counsel's closing address

1. In his closing address, defence counsel asserted that the crucial question to be answered by the jury was:[53]

   Was or did [the appellant] bring the sugar, which he'd packaged and pretended to be drugs, in his BMW to the carpark and hand it to [Mr] Law in the manner alleged?

   [53] Closing addresses, ts 19.

2. Defence counsel submitted that the appellant could only be convicted if the jury was satisfied beyond reasonable doubt that the answer to this question was in the affirmative.[54] 

   [54] Closing addresses, ts 19.

3. Defence counsel told the jury they would probably have been 'singularly unimpressed' by the appellant's evidence.[55]  However, this did not mean that the State had proven its case against the appellant beyond reasonable doubt.[56]

   [55] Closing addresses, ts 20.

   [56] Closing addresses, ts 21.

4. Defence counsel dealt with various aspects of the State's case and submitted that the evidence did not establish that the appellant had been involved in the making of the offer.  In particular, defence counsel submitted that the appellant had not arrived at the shopping centre carpark with the blue bag containing the rock sugar.[57]  Further, the State had adduced no evidence which showed that the rock sugar found at the appellant's house matched the rock sugar found in the blue bag.  Moreover, there was insufficient evidence to show that the appellant knew of Mr Lofts' presence at the shopping centre.[58]

   [57] Closing addresses, ts 23.

   [58] Closing addresses, ts 22.

5. Defence counsel, in passing, referred to the appellant's interview with police on 14 July 2016 and suggested to the jury, in effect, that they may have found his answers to be 'confused',[59] but defence counsel did not specifically refer to anything the appellant said in that interview or, indeed, during the search of the appellant's salon in Karawara.

   [59] Closing addresses, ts 23.

6. Defence counsel made no submissions concerning lies allegedly told by the appellant during his police interviews, or how the jury should deal with them. 

The trial judge's summing up

1. His Honour's summing up began shortly after defence counsel's closing address.  After defence counsel's closing address and before the commencement of the summing up, nothing was said on the issue of lies told by the appellant.  The summing up began at 3.23 pm on 13 December 2018 and concluded for the day at about 4.08 pm.  The summing up resumed the following day, beginning at 9.01 am, and concluding at 9.06 am.  Neither counsel took any exception to the summing up.[60]

   [60] ts 535, 537.

2. As the ground of appeal concerns only the issue of lies told by the appellant, it is unnecessary to summarise all of the other directions his Honour gave to the jury, none of which are impugned by the appellant.

3. His Honour did not give a direction in accordance with Edwards v The Queen[61] (Edwards direction).  Rather, his Honour directed the jury in accordance with Zoneff v The Queen[62] (Zoneff direction).

   [61] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 - 211.

   [62] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [23].

1. The directions his Honour gave in respect of the lies told by the appellant were as follows:[63]

   Now, the prosecution have relied upon three lies, as they say they are, which they say were deliberate lies.  They are these:  that [the appellant] said that he went to the shopping centre to do some shopping where, as you know, he accepts that he went there in the hope of meeting Mr Law to get some or all of his $2,000 loan back.

   Secondly, he told police that the only person he met there was the person who you can see on the video who comes to his driver's door for a little while whereas again, as you know, he met his alleged co-offender, Mr Law, at some point near the shopping centre.  Drove into the shopping centre and then Mr Law was in and out of his car.

   Finally, he told the police he'd never seen the blue bag which, of course, contained the sugar before whereas he had seen it when in his vehicle when it was left behind, he says, by Mr Law for about two minutes.

   It's for you to decide whether or not you are satisfied that [the appellant] lied as alleged.  The defence don't particularly dispute that he did.  But note, for example, that in the interview the interviewing officer Detective Senior Constable, I think, Mayo acknowledged that his language, English usage and tiredness were having an effect on the interview.  And when [the appellant] was cross‑examined yesterday about the alleged lies he described that he was shocked and scared.

   It's for you to decide the significance of the suggested … lies and what significance they have in relation to the issues.  The fact that a person has told a lie may be a factor in your assessment of that person's credibility.

   That, of course, is entirely a matter for you to consider.  But you should not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that is evidence of guilt.  The fact that a person's told a lie is not evidence that the person is guilty of a crime.

   [63] ts 534.

2. Shortly after the jury retired to consider its verdict, his Honour addressed both counsel on the question of the appellant's lies.  He said:[64]

   Now, counsel, just to put one matter on the record.  Having adjourned last night I reflected on the balance of my charge and, in particular, the lies direction and whilst I continue to take the view that, to my mind at least, it was made clear by Mr McCallum on behalf of the prosecution that the lies were Edwards‑type lies.

   In my view, when I'd reviewed what I would have said in the event that if I was to give such direction the lies actually, properly analysed, didn't fulfil the rigorous criteria for Edwards lies so I indicated to the parties through my associate that I would in fact, as I've just done, direct the jury that the lies go only to the question of credibility.

   [64] ts 537.

3. His Honour did not elaborate on why the lies 'properly did not fulfil the rigorous criteria for Edwards lies'.  Neither counsel took exception to his Honour's directions on the appellant's lies.

4. His Honour asked the prosecutor and defence counsel whether there were any matters they wished to raise with his Honour.  Both indicated that there were no matters they wished to raise.[65] 

   [65] ts 537.

5. His Honour gave the jury conventional directions as to how the jury should proceed in the event that the jury accepted the appellant's evidence or thought his evidence might be true or did not believe his evidence, as follows:[66]

   Now, if you were to accept [the appellant's] evidence you would, obviously, find him not guilty.  If you found difficulty in accepting his evidence but you thought it might be true you, again, would find him not guilty because you would inevitably have a reasonable doubt.

   If you do not believe his evidence on matters that involve his culpability in respect of this charge then that is not the end of it.

   What you simply do in those circumstances is to put his evidence to one side and then you deal with the question, "Have the State, on the bases of the evidence that you do accept, proved this charge beyond reasonable doubt?", because even if you prefer the evidence of the prosecution you could not find that [the appellant's] guilt has been established unless you are satisfied beyond reasonable doubt from the evidence that you do accept and from the inferences that you draw.

   [66] ts 513.

Ground of appeal

1. The sole ground of appeal alleges that:

   The trial judge erred in law and occasioned a miscarriage of justice by failing to give adequate directions in his summing up as to the use the jury could make of any deliberate lies told by the accused in his electronically recorded interview with police.

The appellant's submissions

1. In substance, counsel for the appellant submitted that the cross‑examination of the appellant and parts of the prosecutor's closing address left open the perceptible risk that the jury would have used some of the lies told by the appellant as consciousness of guilt lies, and that the direction given by his Honour was inadequate in such circumstances, as it 'wasn't strong enough to dissuade the jury from using the lies as evidence of consciousness of guilt'.[67] 

   [67] Appeal ts 38.

2. It was submitted on behalf of the appellant that his Honour's directions on lies did not go far enough because his Honour was required to:[68]

   (a)refer the jury to the prosecutor's suggestions in cross‑examination that the accused told the lies out of a consciousness of guilt and in the knowledge that the truth would implicate him in the offence;

   (b)then direct the jury that such reasoning was not open to them; and

   (c)inform the jury that if the jury considered that the appellant had told deliberate lies, they must not use those lies in considering whether the State had proved beyond reasonable doubt that the accused is guilty of the offence.

The respondent's submissions

[68] Appeal ts 39 - 40.

1. In substance, the respondent submitted that, notwithstanding the prosecutor's cross‑examination of the appellant as to the lies the appellant told the investigating police officers, it is clear from the prosecutor's structured closing address that the State's case was that the lies went only to the credit of the appellant's testimony and were not used by the State as evidence of his guilt. 

2. Counsel for the respondent did not accept that the prosecutor's use of such expressions in his cross‑examination of the appellant as 'distancing oneself' or 'trying to distance himself' required the giving of an Edwards direction or a firmer direction than the one given by the trial judge in this case.[69]

   [69] Appeal ts 46 - 47.

3. Counsel for the respondent submitted, in effect, that if there was any perceptible risk that the jury would have used the lies told by the appellant as evidence of guilt, his Honour's Zoneff-type direction was sufficient to guard against such a risk.[70]

Disposition

[70] Appeal ts 48 - 50.

1. The relevant general principles relating to the use which lies told by an accused can be put in a criminal trial have been described and discussed on many occasions by this court and its predecessor, most recently in Evans v The State of Western Australia;[71] Leung v The State of Western Australia[72] and Newhill v The State of Western Australia [No 2].[73]  We adopt without repetition the statements of general legal principle made in those cases.  Those statements derive from the leading High Court authorities on this subject, being Edwards and Zoneff.  For present purposes, it is sufficient to make the following points. 

   [71] Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [63] ‑ [71].

   [72] Leung v The State of Western Australia [2020] WASCA 81 [38] ‑ [41].

   [73] Newhill v The State of Western Australia [No 2] [2015] WASCA 121 [63] ‑ [70].

2. Ordinarily, the telling of a lie by an accused only affects their credibility.  Depending upon the circumstances, the telling of a lie may result in the jury (or other fact‑finder) rejecting an accused's exculpatory evidence or treating it with caution.  The lie is incapable of supporting the prosecution case. 

3. However, in limited circumstances, some lies told by an accused go further and are capable of supporting the prosecution case if, and only if, the telling of a lie amounts to conduct which is inconsistent with innocence and amounts to an implied admission of guilt.  Lies will constitute an implied admission if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth and the lies reveal knowledge of the offence charged or some aspect of it. 

4. As explained in Edwards, where the prosecution relies upon a lie as evidence of an accused's guilt, it will ordinarily be necessary for the trial judge to give the jury a direction, which has come to be known as an Edwards direction. While there is no precise verbal formulation and the direction should be tailored to the particular circumstances of the case, it will ordinarily encompass the following:[74]

   (a)the lie must be precisely identified;

   (b)the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;

   (c)the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;

   (d)the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;

   (e)the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and

   (f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.

   [74] Newhill [70].

5. As a general rule, an Edwards direction should not be given where the prosecution has not put, as part of its case, that a lie is an implied admission of guilt.[75]  To give an Edwards direction where the prosecution did not rely upon lies as an implied admission of guilt runs the risk of raising an issue upon which the parties were not joined and giving added prominence to issues of credibility to the prejudice of the accused.

   [75] Zoneff [16].

6. Sometimes, having regard to the manner in which a case has been conducted, it may appear to a trial judge that there is a perceptible risk that the jury might impermissibly reason that lies which go only to the accused's credibility may additionally be used as implied admissions of guilt.

7. In such circumstances, having regard to a trial judge's obligation to ensure a fair trial of the accused, it may be necessary for a judge to give the jury a direction to guard against the risk. 

8. In Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ said that a direction which might have been given in the unusual facts of that case and which may well be adaptable to the circumstances of other cases where there is a risk of a misunderstanding about the significance of possible lies, even though the prosecution has not suggested that the accused told the lies because he or she knew that the truth would implicate the accused in the commission of the offence, may be to this effect:[76]

   You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

   This direction, or a direction like it, has become known as a Zoneff direction.

   [76] Zoneff [23] ‑ [24].

9. We note that the impugned direction in the present case closely resembled the suggested direction in Zoneff.  The direction given by the trial judge is consistent with the view he articulated after the conclusion of the summing up that the appellant's lies were not Edwards lies, that is, that they could not be used as evidence to infer guilt.

10. The decisive question in this appeal is whether, in the circumstances, the trial judge's directions as to the appellant's lies were adequate to guard against a perceptible risk that the jury might misuse the lies in reasoning towards a verdict of guilty.

11. We turn first to the approach taken by the prosecution to the appellant's lies. 

12. In his opening address to the jury, the prosecutor referred to the appellant telling a 'deliberate lie' to the police.  The prosecutor did not, in terms or by implication, tell the jury that the 'deliberate lie' could be used as evidence to infer guilt.  Contrary to what his Honour said later in the trial (as to which see [73] of these reasons), the use of the descriptor 'deliberate' when referring to a lie is arguably tautological and does not signify that the lie is being relied upon to infer guilt.  Nothing in the prosecutor's opening address suggested that the State would seek to use any alleged lie told by the appellant to infer guilt. 

13. Counsel for the appellant submitted that the prosecutor's cross‑examination of the appellant (particularly in those parts set out in [61] ‑ [64] of these reasons) and an aspect of the prosecutor's closing address (being the part set out in [67] of these reasons) gave rise to the impermissible risk that the jury would use the lies told by the appellant as evidence from which guilt may be inferred.

14. Whatever the prosecutor may have intended to convey in his cross‑examination, we accept that parts of the cross‑examination of the appellant could reasonably have been understood by the jury as suggesting that lies were told by the appellant because the truth would implicate him in the offence or some aspect of it.  We have come to this conclusion having regard to the prosecutor's use of such expressions in the cross‑examination as:

    (a)'If you really were there for an innocent purpose, then what did you have to fear by giving a truthful answer to the question?';[77]

    (b)'If your real purpose for being at the shopping centre - if your real purpose for meeting with Little Brother on that day was an innocent one … what did you have to fear by telling Detective Mayo that?';[78]

    (c)'You never said anything about Mr Law getting into your car because you knew there was no innocent explanation?';[79] and

    (d)in relation to the lie the appellant told the police about never having seen the blue bag before, 'I suggest to you the reason you lied was is because you'd given that bag to Little Brother inside your car.  You gave him that bag, that's why you lied, isn't it?'.[80]

    [77] ts 495.

    [78] ts 495.

    [79] ts 496.

    [80] ts 498.

15. However, we do not accept the submission that the prosecutor's closing address could have reasonably been understood as suggesting that the appellant told lies because the truth would implicate him in the offence.  We have come to this conclusion for the following reasons:

    (a)As already noted, the prosecutor's closing address was carefully structured from the outset, with the prosecutor dividing his address into three broad headings, the second of which was the credibility of the appellant's evidence, and the third of which was the facts and circumstances from which the jury could be satisfied beyond reasonable doubt as to guilt.

    (b)The prosecutor referred to the appellant's lies only in the context of his second broad heading, which was narrowly focused on the credibility of the appellant's exculpatory account in the witness box in which the appellant said, in effect, that he went to the shopping centre carpark so Mr Law could repay him the money that the appellant had loaned him.

    (c)When the prosecutor's submission to the jury on the issue of lies told to the police by the appellant (referred to at [67] of these reasons) is read as a whole, while the prosecutor at one point poses the question, 'Well, what was the need for him to give a false account to Detective Senior Constable Mayo?', the clear thrust of the submission was that the State was relying upon lies as going only to the jury's assessment of the appellant's credibility:

    Now, what I submit to you, members of the jury, is those lies should bear considerably upon your assessment of the evidence he gave to you in this court, particularly when the evidence he's given here today is that, 'There's a completely innocent explanation for what I was doing at that shopping centre.  There's a completely innocent explanation for what I was doing meeting with Mr Law'.  So that should bear considerably upon your assessment of the truthfulness of the evidence that he gave in court.

    (d)The lies allegedly told by the appellant were not relied upon by the prosecutor when making submissions under the third of his broad headings.  To our minds, this is of importance.  The third broad heading of the prosecutor's closing address focused on the evidence which proved the State's case against the appellant.  Thus, the prosecutor did not rely upon lies as proof of the appellant's guilt. 

16. In our opinion, when the closing address is read as a whole, it is apparent, as counsel for the respondent submitted, that despite the cross‑examination of the appellant that we have referred to, the prosecution did not ultimately rely upon the appellant's lies as evidence of guilt.

17. This conclusion is consistent with the fact, recorded by his Honour in his discussion with counsel immediately after the summing up, that when the prosecutor was informed by his Honour's associate, part‑way through the summing up, of his Honour's intention not to give an Edwards direction, the prosecutor took no issue.[81]  Nor did the prosecutor take any issue with the direction his Honour gave about the appellant's lies.  Specifically, the prosecutor did not seek to persuade the trial judge that the State relied upon the appellant's lies as evidence of guilt and that his Honour should have given an Edwards direction.

    [81] ts 537.

18. As the State did not rely upon the appellant's lies as evidence of guilt, it would have been wrong for his Honour to have given an Edwards direction.  To do so would have put an issue to the jury to which the parties were not joined and would have prejudiced the appellant. 

19. However, as we have said, in our opinion, the cross‑examination of the appellant on his lies, to which we have referred, gave rise to a perceptible risk that the jury might impermissibly reason that the appellant's lies could be used as evidence relevant to the appellant's guilt.  Accordingly, consistently with the principles set out in Zoneff, his Honour was required to direct the jury in such a way as to guard against this risk.  This takes us to the adequacy of the direction his Honour gave. 

20. As we have said, the direction his Honour gave closely resembled the direction suggested by the plurality in Zoneff, although it did not include the words, 'I give you this warning …'.  These words are not a mandatory part of a Zoneff warning, nor did the appellant submit that their omission rendered the direction given by the trial judge inadequate.

21. We do not accept the submissions made by the appellant that the direction was deficient or needed to go further than it did in the circumstances of the case.

22. To our minds, the direction given by the trial judge conveyed to the jury, in clear and unmistakable language, that it could not embark on a process of reasoning to the effect that any lies they found that the appellant had told were evidence of guilt.  His Honour identified the lies that were the subject of cross‑examination by the prosecutor.  He left open to the jury the question of whether the appellant told lies, although he observed, correctly, that the appellant did not particularly dispute that he did, noting the appellant's use of language and tiredness, and that the appellant said he was shocked and scared.  He told the jury that the telling of a lie was relevant to credibility.  Finally, in mandatory language, his Honour told the jury:[82]

    But you should not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that is evidence of guilt.  The fact that a person's told a lie is not evidence that the person is guilty of a crime.

    The last sentence of this passage is a categorical instruction to the jury that a lie is not evidence of guilt.

    [82] ts 537.

1. There can be no criticism of his Honour's use of the expression, 'It's for you to decide the significance of the suggested lies …'.[83]  Its use is consistent with the plurality's suggested direction in Zoneff.  When read against the direction and the summing up as a whole, it conveyed to the jury that it was for them, as judges of the facts, to decide the importance (if any) of the lies told by the appellant, subject to the further direction that they were not permitted to reason that, because a person has lied, the lie is evidence of guilt.

   [83] ts 534.

2. Contrary to the submissions of the appellant, more elaborate directions which focused on whether the appellant did in fact lie were unnecessary and would have been unhelpful, having regard to the appellant's repeated admissions under cross‑examination that he had lied, and defence counsel's approach in his closing address to the effect that the jury would 'probably have been singularly unimpressed' by the appellant's evidence.  It appears from defence counsel's closing address that he adopted the forensic strategy that the jury was unlikely to accept the appellant's innocent explanation for his presence at the shopping centre and his meeting with Mr Law, and instead focused the jury's attention away from the appellant's testimony to the alleged weaknesses in the State's circumstantial case against the appellant. 

3. The appellant cited the decision of the Queensland Court of Appeal in R v Sheppard,[84] a case where a direction similar to that given by the trial judge in the present case was found to be insufficient.  In response, the respondent cited other decisions from the same court which distinguished Sheppard, namely R v Lacey & Lacey[85] and R v FAV,[86] where the relevant direction was found to be sufficient.  The respondent also cited the decision of the South Australian Court of Criminal Appeal in R v Thomas.[87] It is unnecessary to refer to any of these cases in detail.  Each of them turns on whether, in light of the particular facts and circumstances of the case, the direction given by the trial judge in respect of lies told by the accused was sufficient to guard against the perceptible risk that the jury would have impermissibly used the accused's lies as evidence of guilt.  The outcomes of these cases underscore the need in every case of this kind to play close attention to the sufficiency of the direction, having regard to the particular facts and circumstances of the case.

   [84] R v Sheppard [2010] QCA 342.

   [85] R v Lacey & Lacey [2011] QCA 386.

   [86] R v FAV [2019] QCA 299.

   [87] R v Thomas [2015] SASCFC 55.

4. While not a decisive factor, it is relevant that experienced defence counsel, based on the exchange that he had with the trial judge after the prosecutor's closing address, was alive to issues relevant to lies told by the appellant and ultimately took no exception to any aspect of the summing up (including in respect of the appellant's lies). 

5. In our opinion, having regard to the facts and circumstances of this case, the direction was adequate to guard against a perceptible risk that the jury might misuse the lies in reasoning towards a verdict of guilt.  While we would grant leave to appeal, the ground relied upon by the appellant has not been made out.  The appeal against conviction must be dismissed.

6. We now turn to the appeal against sentence.

The appeal against sentence

1. The appellant appeals against the sentence of 9 years' imprisonment imposed upon him on 13 June 2019.  The appellant was sentenced after this court delivered judgment in Mr Law's appeal against sentence:  Law v The Queen.[88]

   [88] Law v The Queen [2019] WASCA 81.

2. The appellant advanced three grounds, which are set out in the appellant's case as follows:[89]

   1.The trial judge erred by making a specific error of fact in relation to a finding that the appellant had the capacity to fulfil the drug deal the subject of the 'rip‑off' transaction subject of the charge.

   2.The appellant has a justifiable sense of grievance with respect to the disparity of sentence imposed upon the appellant and the co‑accused Mr Law.

   3.The sentence of 9 years' imprisonment for offer to sell methylamphetamine was manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard[s] of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of offending, and the personal circumstances of the offender.

   [89] WAB 115.

3. The question of leave to appeal in relation to these grounds was referred to the hearing of the appeal.[90]

The facts

[90] WAB 113.

1. The appellant, his co‑accused, Mr Law, and a person in Hong Kong, who was sometimes referred to as 'Big Brother', were engaged in a criminal enterprise that gave rise to the offence which occurred on 13 July 2016.

2. The offence committed by the appellant and Mr Law is colloquially referred to as a drug 'rip‑off'.  The appellant and Mr Law offered to sell Mr Lofts 3 kg of methylamphetamine for $155,000.  At the time the offer was made, and unbeknown to Mr Lofts, the appellant and Mr Law did not intend to provide Mr Lofts with the actual drug.  Rather, the appellant and Mr Law deceived Mr Lofts by providing him with 3 kg of rock sugar which had been processed in such a way that it closely resembled the genuine article.  The intention was to have Mr Lofts hand over the $155,000 in the belief that he was receiving 3 kg of methylamphetamine.  The appellant's role in the commission of the offence was to create and package the fake methylamphetamine, to deliver it to Mr Law and to collect the $155,000 paid by Mr Lofts.

3. Throughout the afternoon of 13 July 2016, the appellant was in mobile telephone contact with 'Big Brother' in Hong Kong.  It appears that 'Big Brother's' role was to coordinate the activities of the appellant and Mr Law.  The purported sale of the methylamphetamine was arranged to take place in the vicinity of the shopping centre.  Each of the appellant, Mr Law and Mr Lofts arrived separately.  Mr Law was observed to walk to the appellant's BMW sedan, which was parked in the shopping centre carpark, empty‑handed apart from his wallet and sunglasses.  He was observed to leave the appellant's car with a blue bag that contained the approximately 3 kg of rock sugar.  Mr Law then took the blue bag and handed it to Mr Lofts.  In exchange, Mr Lofts gave Mr Law a Footlocker bag that contained, in fact, $154,950 in cash. 

4. At this point, police officers, who had been conducting observations of what had been occurring in and about the shopping centre, arrested Mr Lofts in possession of the blue bag.  The substance inside it appeared to one of the investigating officers to be methylamphetamine.  It was only upon later analysis that it was discovered that the substance was rock sugar.  A short time after Mr Lofts' arrest, Mr Law was apprehended with the bag of cash nearby. 

5. Following Mr Law's arrest, the appellant drove away from the scene.  The appellant spoke to 'Big Brother', informing him, in substance, that he had seen Mr Law, with the bag of money in his hands, being chased by someone.

6. Later, in the evening of 13 July 2016, the appellant was arrested.  A search of the appellant's home revealed, among other things, a heat‑sealing machine and a quantity of unopened bags of rock sugar.

Personal circumstances

1. The appellant was 43 years of age when he was sentenced.  He was born in Taiwan and has been in Australia for over 20 years.  The appellant is an Australian citizen.  He has three children.  He is a hairdresser by trade.[91]

   [91] ts 550.

2. The appellant has a prior criminal history.  Significantly, in 2013, he was sentenced in the District Court to a total effective sentence of 2 years 6 months' immediate imprisonment with eligibility for parole for three offences of selling a prohibited drug, namely methylamphetamine.[92]

The sentencing remarks

[92] BGAB 62; ts 550 - 551, 559.

1. His Honour found that the appellant, along with Mr Law, created, packaged and delivered the fake consignment of methylamphetamine to Mr Lofts.[93]  He also found that the appellant provided Mr Law with the 3.02 kg of rock sugar which had been smashed and packaged to look like methylamphetamine.[94]  The appellant would also have collected the money Mr Lofts handed to Mr Law.[95]

   [93] ts 555.

   [94] ts 556.

   [95] ts 555.

2. His Honour found that the appellant did not speak to the person in Hong Kong known as 'Big Brother' in a manner which was subservient.  Rather, the conversations appeared to be between equals.[96]  The sentencing judge said that the appellant and Mr Law were 'criminal partners in this enterprise'.[97]

   [96] ts 555 - 556.

   [97] ts 556.

3. The sentencing judge found that the appellant's offending was 'premeditated and calculated' and that his motivation 'was purely financial gain'.  His Honour found that the appellant acted with 'a full appreciation' of his criminality.[98] 

   [98] ts 557 - 558.

4. The sentencing judge found that, although a quantity of rock sugar, not methylamphetamine, was sold to Mr Lofts, the appellant had the capacity to deliver actual methylamphetamine.  On the occasion the subject of the offence, he elected not to do so.[99]  The judge's finding that the appellant had the capacity to provide actual methylamphetamine is challenged in ground 1. 

   [99] ts 558.

5. His Honour observed that, other than the appellant's favourable work record, there was virtually no mitigation to be found.[100] 

   [100] ts 559.

6. His Honour rejected the submission that the appellant was remorseful for his conduct.[101]

   [101] ts 557.

7. His Honour had regard to the parity principle, noting the sentence that was imposed on Mr Lofts by Lonsdale DCJ, and on Mr Law by this court.[102] 

   [102] ts 561.

8. His Honour concluded, having regard to all of the relevant sentencing considerations, that a sentence of 9 years' imprisonment with eligibility for parole was appropriate.[103]

Ground 1 - did the trial judge err in finding that the appellant had the capacity to fulfil the offer to sell methylamphetamine?

[103] ts 561.

1. We have already observed that his Honour found that the appellant had the capacity to fulfil an actual sale of methylamphetamine.[104]  His Honour made that finding against the following background.

   [104] ts 558.

2. Mr Law was convicted in the District Court on his pleas of guilty to four offences, being the three offences on the indictment referred to in [9] of these reasons (indictment 468 of 2012) and a further offence contained in another indictment (indictment 1187 of 2017) which, in essence, alleged that from on or about 11 February 2016 to on or about 11 March 2016 at Perth, Mr Law entered into an agreement with another person to commit the offence of importing a marketable quantity of methamphetamine, contrary to s 11.2A(1) and s 307.2(1) of the Criminal Code (Cth).[105]

   [105] Law v The Queen [3].

3. Mr Law was sentenced by Birmingham DCJ to the following immediate terms of imprisonment:[106]

   (a)the count in indictment 1187 - 9 years;

   (b)count 1 in indictment 468 - 4 years;

   (c)count 2 in indictment 468 - 4 years 6 months; and

   (d)count 3 in indictment 468 - 3 years.

   [106] Law v The Queen [10].

4. Birmingham DCJ reduced the length of the individual sentence for count 2 in indictment 468 from 6 years to 4 years 6 months in the application of the totality principle.  His Honour made orders for concurrency and cumulacy with the effect that the total effective sentence was 10 years 6 months' imprisonment, with the appellant being eligible for release on parole after having served 8 years 6 months.[107]

   [107] Law v The Queen [10] - [13].

5. In the course of his Honour's sentencing remarks with respect to count 2 on indictment 468, which Mr Law committed in common with the appellant, Birmingham DCJ found that Mr Law had the capacity to actually fulfil the offer made to Mr Lofts.[108] 

   [108] Law v The Queen [57].

6. Mr Law appealed to this court on four grounds.  This court allowed Mr Law's appeal on ground 1.  Having done so, this court found that it was unnecessary to consider the merits of the other three grounds.  Ground 1 alleged that Birmingham DCJ made two express errors in respect of the offence the subject of indictment 1187.  As a consequence, this court was obliged to set aside all of the sentences imposed by Birmingham DCJ and resentence Mr Law.  In doing so, this court was also required to resentence the appellant with respect to the three offences in indictment 468.  In respect of those offences, the court imposed a sentence of 5 years' immediate imprisonment for count 1, 5 years 6 months' imprisonment for count 2 (reduced from 7 years' imprisonment in the application of the totality principle) and 3 years' immediate imprisonment for count 3.[109] 

   [109] Law v The Queen [164].

7. The court imposed higher sentences for counts 1 and 2 on indictment 468 than Birmingham DCJ.  In doing so, the court said:[110]

   In the re‑sentencing of [Mr Law], higher sentences than those imposed by the sentencing judge are required for the offences charged in counts 1 and 2 of indictment 468. Those offences arose from [Mr Law's] offers to sell 1 kg of methylamphetamine and slightly in excess of 3 kg of methylamphetamine. Of course, what [Mr Law] intended to supply, and what he did in fact supply, was not methylamphetamine but rock sugar. However, the offence of offering to sell a prohibited drug, contrary to s 6(1)(c) of the MD Act, is complete upon the making of an offer to sell or supply a prohibited drug, where the offeror intends that the offer should be regarded by the offeree as genuine.

   A lesser sentence is warranted for each of counts 1 and 2 than would have been imposed had [Mr Law] both offered, and actually intended, to sell methylamphetamine, because no drugs were in fact made available for distribution into the community on either occasion.  However, the fact that [Mr Law] knew that what he would supply was rock sugar, and not methylamphetamine, is only one of the factors relevant to the assessment of the seriousness of the offence of offering to sell a prohibited drug to another.

   [Mr Law] offered to sell a very substantial quantity of methylamphetamine in the case of each of counts 1 and 2.  The offers were regarded as genuine by the offerees, who were each prepared to, and did, pay a significant sum of money for the 'methylamphetamine'.  These were not isolated offences.  His Honour found that [Mr Law] had the capacity to fulfil the orders.  (emphasis added)

   [110] Law v The Queen [165] - [167].

8. As we have already observed, the appellant was sentenced after this court delivered the decision in Law v The Queen.  Defence counsel, in his plea in mitigation, expressly referred to the decision in Law v The Queen.  After doing so and noting this court's resentencing of Mr Law, the following exchange took place between defence counsel and his Honour:[111]

   [111] ts 549 - 550.

   TROY DCJ:   Were there other matters that you wanted to raise, Mr Holmes?

   HOLMES, MR:   No, sir.  Specifically in relation to parity, we say that our ultimate submission is that Mr Chuang's offending is equal to Mr Law's.

   TROY DCJ:   Yes.

   HOLMES, MR:   That's the thrust of our submission.  I don't wish to take that any further.

   TROY DCJ:   No.

   HOLMES, MR:   I've had an opportunity to speak with my learned friend this morning.  I think my friend and I speak with one voice, in that regard.  If your Honour is prepared to accept that, I'm not considering to advance that any further.  We don't suggest that, and we don't put forward, that Mr Chuang's offending is aggravated and we don't seek to address your Honour on that any greater than what Mr Law's involvement was.

   TROY DCJ:   Yes.

   HOLMES, MR:   So our ultimate submission is that Mr Chuang should be sentenced as if his involvement was equal to Mr Law.

   TROY DCJ:   I understand.

9. After defence counsel completed his plea in mitigation, the prosecutor made sentencing submissions, in the course of which he said:[112]

   It was exchanged for a very substantial sum of cash.  The offence clearly involved a significant level of planning and coordination.  The telephone communication with the person described as 'Big Brother' in Hong Kong demonstrates that both this offender and Mr Law were performing what might fairly be described as mid‑level roles in the Hong Kong‑based syndicate of some organisation.

   The level of trust placed in this offender by those he was subordinate to is underscored by his role in relation to receiving the substantial quantity of money.  And the State submits the inevitable conclusion to be drawn from the role that he played and the quantity of cash involved must be that his motivation was purely a commercial one.

   The sentencing judge's findings in the proceedings against Mr Law that, although the substance provided was fake, and he didn't intend to ever actually supply real methylamphetamine, nevertheless it was concluded against Mr Law that he, and those he was subordinate to, had the capacity to fulfil the order.  That was a finding that didn't trouble the Court of Appeal ‑ ‑ ‑

   TROY DCJ:   No.

   McCALLUM, MR:    ‑ ‑ ‑ in any way and the State submits it's a finding that is open to be made against this offender as well.

   [112] ts 551 - 552.

10. Defence counsel did not seek to counter these submissions and, in particular, he did not seek to counter the State's submission that it was open to his Honour to find that the appellant had the capacity to fulfil the order to sell the methylamphetamine to Mr Lofts. 

Ground 1 - the appellant's submissions

1. In substance, the appellant submitted that his Honour erred in finding that the appellant had the capacity to fulfil the offer made to Mr Lofts merely by adopting Birmingham DCJ's reasoning in finding that Mr Law had the capacity to fulfil the order, and not having regard to the evidence adduced at the appellant's trial, which was insufficient to justify a finding of capacity against the appellant. 

Ground 1 - the respondent's submissions

1. The respondent submitted that it was open to his Honour to find that the appellant, through his involvement with the Hong Kong syndicate, had capacity to fulfil the order.  Moreover, defence counsel, in full knowledge of this court's reasons in Law v The Queen, conceded that the appellant should be sentenced as if his involvement was equal to Mr Law, and did not dispute the submission by the State that the appellant should be sentenced on the basis that he had the capacity to fulfil the offer.

Ground 1 - disposition

1. In our opinion, ground 1 is without merit.  Properly understood, defence counsel's statements to his Honour that his 'ultimate submission is that [the appellant's] offending is equal to Mr Law's'[113] and that the appellant 'should be sentenced as if his involvement was equal to Mr Law'[114] amount to a concession that Mr Law's criminality, a facet of which was his capacity to fulfil the order, was equal to that of the appellant.  In these circumstances, it cannot be said that his Honour erred in finding that, like Mr Law, the appellant had the capacity to fulfil the order.  This understanding of defence counsel's concession is strengthened by the fact that, the prosecutor having squarely submitted that his Honour should find that the appellant had the capacity to fulfil the order, defence counsel did not seek to contradict it.

   [113] ts 549.

   [114] ts 550.

2. Further, in any event, his Honour's finding that the appellant had the capacity to fulfil the order was justified on the basis that the appellant was part of a syndicate, comprising of Mr Law and 'Big Brother' in Hong Kong, which was importing methylamphetamine into Western Australia.  Viewed in this light, it was open to his Honour to find that the appellant had the capacity to fulfil the order.

3. Leave to appeal should be refused on ground 1.

Ground 2 - did the sentence imposed upon the appellant infringe the parity principle?

1. The appellant submitted that the sentence which was imposed upon him, when compared to the sentence that was imposed by this court on Mr Law for the common offence, gave rise to a justifiable sense of grievance and thus constituted an infringement of the parity principle. 

1. The appellant submitted that his criminality was significantly lower than that of Mr Law.  In particular, Mr Law had been an active member of the drug importation syndicate and had, prior to 13 July 2016, been involved in other offences, including the offence the subject of indictment 1187 and count 1 on indictment 486.  Counsel for the appellant submitted that the appellant's offending was limited 'to the offence committed on one day of selling rock sugar for a large sum of cash'.  In respect of ground 2, the appellant, in effect, incorporated the submissions he made in respect of ground 1, alleging that the appellant's criminality was less than Mr Law because, unlike Mr Law, the appellant did not have the capacity to fulfil the offer the subject of count 2. 

Ground 2 - disposition

1. The legal principles in respect of parity were comprehensively examined by this court in Higgins v The State of Western Australia.[115]

   [115] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342 (Buss P [13] ‑ [54]; Beech JA [160] ‑ [184]; Pritchard JA [198] ‑ [210]).

2. The relevant comparison in the present case is not attended with the complexities which sometimes cause difficulty in making a judgment about whether the parity principle has been infringed.  As the appellant's trial counsel conceded, the culpability of the appellant and Mr Law was equal.  There was no material difference in their antecedents.  Mr Law was, when he was resentenced by this court, 28 years of age and so, like the appellant, he was a mature adult.  Like the appellant, Mr Law had a prior record of offending.  In particular, Mr Law had convictions in Hong Kong for trafficking in dangerous drugs in 2015 and 2010, possession of dangerous drugs in 2016, and other criminal convictions (including for robbery, theft and criminal damage).[116]

   [116] Law v The Queen [58].

3. There were two factors which required Mr Law to receive, as he did, a more lenient sentence than the appellant with respect to the common offence. The first is that Mr Law, unlike the appellant, pleaded guilty. As a consequence, he received a reduction of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[117]  Second, as this court explained in its reasons, it reduced the sentence imposed upon Mr Law from 7 years to 5 years 6 months' imprisonment to take into account the application of the totality principle.  When one has regard to these factors, the disparity in the sentences imposed for the common offence is accounted for, and thus there has been no infringement of the parity principle.  The marked disparity between the offences is explained by the proper application of sentencing principles.  The appellant has no justifiable sense of grievance.

   [117] Law v The Queen [63].

4. Leave to appeal should be refused on ground 2.

Ground 3

1. Ground 3 alleges that the sentence imposed upon the appellant was manifestly excessive.  This ground is to be decided having regard to the following general principles which are well established.

2. The imposition of a sentence involves the exercise of a discretion.  An appellate court can only intervene if the appellant demonstrates error in the exercise of that discretion.  One form of appellable error is implied or inferred error.  A claim of manifest excess is a claim of implied or inferred error.  It arises where, although it is not possible to discover the exact nature of the error, the end result is so unjust or unreasonable that the court must conclude a substantial wrong has occurred.[118]  Thus, this court cannot intervene simply because, had it been sentencing the offender at first instance, it might have imposed a different sentence. 

   [118] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

3. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in the light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type and the offender's personal circumstances. 

4. At the material time, the maximum penalty for the appellant's offence contrary to s 6(1)(c) MDA was 25 years' imprisonment or a fine of $100,000, or both.

5. It is well established that when sentencing offenders for offences relating to the dealing or trafficking in dangerous drugs of addiction, the major sentencing considerations are general and personal deterrence.  The quantity of the drugs in question is not generally the chief factor to be taken into account, but it is a matter of importance.  The nature and level of an offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for personal gain, are highly significant.  Matters personal to the offender are not irrelevant, but will almost always be given reduced weight.

6. In Tirkot v The State of Western Australia,[119] this court observed that many factors will be relevant in assessing the seriousness of an offence of offering to sell a prohibited drug, including:

   (a)The terms of the offer, in particular as to the quantity of the drug, its price, etc.

   (b)Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.

   (c)Whether, and if so the extent to which, the offer is motivated by reasons of commercial gain or greed.

   (d)Whether the offeror, at all material times, had the intention to fulfil the offer.

   (e)Whether the offeror had the capacity to fulfil the offer to supply.

   (f)Whether the offeror attempted to fulfil the order.  If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.

   [119] Tirkot v The State of Western Australia [2018] WASCA 41 [53].

7. The present case is factually different from Tirkot.  Tirkot involved the kind of offending which is more commonly seen in cases involving offers to sell or supply prohibited drugs.  The offender in Tirkot offered to sell relatively small quantities of methylamphetamine, MDMA and fluoroamphetamines for sums of money.  The offender did so in the context that she was a commercial drug dealer.  The quantities of drugs that the offender offered to sell were vastly less than the quantity involved in the present case.  The offending in Tirkot did not involve a drug 'rip‑off'.

8. Nevertheless, some of the factors referred to by this court in Tirkot are relevant in assessment the seriousness of the appellant's offending, being:

   (a)The terms of the offer that was made to Mr Lofts involved a very substantial quantity, 3.02 kg, of what was said to be methylamphetamine. 

   (b)The offer was motivated by commercial gain and greed.

   (c)The appellant was part of a well‑organised overseas‑controlled drug syndicate.

   (c)The appellant had the capacity to fulfil the order, if necessary.

9. As the New South Wales Court of Criminal Appeal pointed out in R v Kijurina,[120] while the criminality may be less than in a case where there is a genuine plan to supply drugs, drug 'rip‑offs' are objectively serious.  Part of the reason lies in the circumstances that, unlike most cases of fraud or false pretences, the victim of a drug 'rip‑off' is unlikely to report the matter to police.  As a result, subject to any act of violent retribution which commonly follows such an event, the offender is likely to escape scot‑free.  There is a significant community interest in not allowing the drug trade to be used for fraudulent activities of this kind and also in deterring the kind of violent response which such conduct can very readily provoke.  Others who may be tempted to engage in similar conduct must be dissuaded from engaging in such criminal activity.

   [120] R v Kijurina [2017] NSWCCA 117 [99] ‑ [100], [103].

10. This court has not been called upon to decide many cases where individual sentences for offering to sell or supply a prohibited drug have been alleged to be manifestly excessive or inadequate.  Tirkot is one such case.  Other cases are The State of Western Australia v Doyle[121] and Baker.  The facts of those cases were completely different from the present case.  Of course, the absence of comparable cases does not prevent this court from concluding that the sentence imposed was manifestly excessive. 

    [121] The State of Western Australia v Doyle [2017] WASCA 207.

11. In Law v The Queen, this court was required to resentence Mr Law for count 2. Mr Law received 5 years 6 months' imprisonment for the offence, which was reduced from 7 years' imprisonment in the application of the totality principle. Further, as referred to earlier at [160] above, Mr Law, unlike the appellant, pleaded guilty and had the benefit of a 20% reduction pursuant to s 9AA of the Sentencing Act.  While the resentencing in Law v The Queen is not itself determinative of the ground of appeal under consideration, it creates a substantial obstacle for ground 3.  Ultimately, counsel for the appellant accepted that, if grounds 1 and 2 failed, in light of this court's decision in Law v the Queen ground 3 could not succeed.[122]

    [122] Appeal ts 55.

12. Having regard to:

    (a)the maximum penalty;

    (b)all of the relevant facts and circumstances;

    (c)the seriousness of the offending;

    (d)the sentencing principles applicable to the offence committed by the appellant which emphasise the need for personal and general deterrence;

    (e)all matters of mitigation; and

    (f)the limited number of comparable cases,

    we are unpersuaded that the sentence of 9 years' imprisonment imposed on count 2 was manifestly excessive.  In our opinion, the sentence was an appropriate exercise of the sentencing discretion.  It was not unreasonable or plainly unjust.  The appellant has failed to establish implied error.  Ground 3 has not been made out.

Appeal against sentence - conclusion

1. None of the grounds of the appeal against sentence have been made out.  Leave to appeal should be refused and the appeal must be dismissed.

Conclusion

1. The appeals against conviction and sentence must both be dismissed.

2. We would make orders as follows:

   (1)In the conviction appeal, leave to appeal on ground 1 is granted and the appeal is dismissed. 

   (2)In the sentence appeal, leave to appeal on grounds 1, 2 and 3 is refused and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NF

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

19 MARCH 2021