Cranney v R; Huynh v R

[2017] NSWCCA 234

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Cranney v R; Huynh v R [2017] NSWCCA 234
Hearing dates:	22 February 2017
Date of orders:	29 September 2017
Decision date:	29 September 2017
Before:	Hoeben CJ at CL at [1]; Latham J at [3]; Price J at [4]
Decision:	(1) Christopher Phillip Cranney’s appeal against conviction is dismissed. (2) Huy Bao Van Huynh’s appeal against conviction is dismissed.
Catchwords:	CRIMINAL LAW – appeals against convictions – charges of conspiracy to import a commercial quantity of pseudoephedrine contrary to subsections 11.5(1) and 307.11 of the Criminal Code (Cth) – whether trial judge’s directions erroneous as to s 307.11(b)(ii) of the Code – Crown concession of error – whether belief required was that another person had an immediate intention to use the precursor to manufacture a controlled substance – whether evidence failed to establish a single conspiracy – whether more than one conspiracy charged – whether trial judge was required to direct the jury that the Crown must prove a single conspiracy and not two separate conspiracies – whether s 311.16(b) if the Code modifies conspiracy as fixed by the common law – s 311.16(b) considered – whether miscarriage of justice occasioned by Crown Prosecutor’s submissions concerning character – whether trial judge’s refusal to discharge the jury occasioned a miscarriage of justice – whether Crown Prosecutor’s questions of Huynh asking if a Crown witness was lying occasioned a miscarriage of justice – whether evidence of Huynh’s prior involvement with co-offenders admissible – whether evidence was tendency evidence – whether Crown Prosecutor placed his own personal opinions before the jury – whether error by trial judge in not ascertaining from the Crown Prosecutor the use to be made of an asserted lie.
Legislation Cited:	Acts Interpretation Act 1901 (Cth), s 33(2A) Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules (NSW), r 4 Criminal Code 1899 (Q.), s 679 Criminal Code (Cth), ss 11.5, 11.5(1), 11.5(2), 141.1(3), 301.6, 307.11, 307.11(1), 307.11(1)(b), 307.11(b)(ii), 311.16, 311.16(b), 311.8, 311.9, 311.18 Criminal Code Regulations 2002 (Cth), s 5F, Sch 3 Customs Act 1901 (Cth), s 233B(1)(d) Evidence Act 1995 (NSW), ss 97, 97(1), 101, 112, 137 Poisons Act 1966 (NSW), ss 4, 32(4)
Cases Cited:	Ahmed v R [2012] NSWCCA 260 Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 19 ARS v R [2011] NSWCCA 266 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Director of Public Prosecutions v Doot [1973] AC 807 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 FP v R [2012] NSWCCA 182 G, F, S and W [1974] 1 NSWLR 31 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 Hughes v R [2015] NSWCCA 330 Jeyavel Thangavelautham v R [2016] NSWCCA 141 Kamara [1974] AC 104 KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Picken v R [2007] NSWCCA 319 Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 Prior v Mole [2017] HCA 10 R (Cth) v Standen [2011] NSWSC 1046 R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v E (1996) 39 NSWLR 450 R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 R v Healy [2008] NSWCCA 229 R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 R v Leak [1969] SASR 172 R v LK; R v RK (2010) 241 CLR 177; [2010] HCA 17 R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 R v Rich (1998) 102 A Crim R 165 R v RK; R v LK (2008) 73 NSWLR 80; [2008] NSWCCA 38 R v Soto-Sanchez (2002) 129 A Crim R 279; [2002] NSWCCA 160 R v Trudgeon (1988) 39 A Crim R 252 Raumakita v R (2011) 210 A Crim R 326; [2011] NSWCCA 126 Sanchez v R (2009) 196 A Crim R 472; [2009] NSWCCA 171 Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 Sio v R (2015) 249 A Crim R 533; [2015] NSWCCA 42 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Standen v DPP (Cth) (2011) 218 A Crim R 28; [2011] NSWCCA 187 Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211 Stanoevski v The Queen (2001) 202 CLR 115; A Crim R 247 Tekely v R; Nagle v R [2007] NSWCCA 75 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	Christopher Phillip Cranney (Applicant) Huy Bao Van Huynh (Applicant) Regina (Respondent)
Representation:	Counsel: Ms G Bashir SC, Mr C McGorey (Applicant Cranney) Mr Huynh (Self-Represented) Mr Crowley, Ms P McEniery (Respondent)   Solicitors: Bilias and Associates (Applicant Cranney) Blair Criminal Lawyers (Applicant Huynh) Solicitor for Commonwealth Public Prosecutions (Respondent)
File Number(s):	2013/043707 (Christopher Phillip Cranney) 2013/310184 (Huy Bao Van Huynh)
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2015] NSWDC 276 Date of Decision: 20 November 2015 Before: Whitford SC DCJ File Number(s): 2013/043707 (Christopher Phillip Cranney) 2013/310184 (Huy Bao Van Huynh)

Judgment

1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. While I agree the trial judge’s directions as identified in Grounds 1 and 2 (Cranney) and Grounds 1 and 5 (Huynh) were incorrect, the applicants should be bound by the way in which their cases were conducted at trial. In any event, the applicants were not prejudiced by the incorrect directions because they imposed a higher test than that imposed by the statute creating the offences.

2. To the extent that the applicants have based their Grounds of Appeal upon assertions that the verdicts were unreasonable, those submissions should be rejected. Having made my own independent assessment of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that they had committed the offences of which they were convicted.

3. LATHAM J: I agree with the orders proposed by Price J and with the reasons for those proposed orders. I also agree with the additional remarks by Hoeben CJ at CL.

4. PRICE J: The applicants Christopher Phillip Cranney and Huy Bao Van Huynh were tried before Judge Whitford SC and a jury in the District Court at Sydney. With no disrespect to the applicants, I will refer to them by their surnames.

5. Cranney had entered pleas of not guilty to all five charges included in the joint indictment upon which he had been arraigned with Huynh. Count 1 charged that between about 1 September 2011 and about 21 December 2011, Cranney conspired with others to import a commercial quantity of pseudoephedrine contrary to subss 11.5(1) and 307.11(1) of the Criminal Code (Cth) (“Criminal Code”). Count 3 charged that during the same period, in his capacity as a Commonwealth public official, Cranney dishonestly agreed to receive or obtain a benefit for himself, namely money, with the intention that the exercise of his official duties would be influenced contrary to subs 141.1(3) of the Criminal Code. It is convenient to refer to a charge contrary to subs 141.1(3) of the Criminal Code as a “bribery offence”.

6. Huynh was not charged with these counts.

7. Count 2 on the same indictment jointly charged Cranney and Huynh with a charge of conspiracy to import a commercial quantity of pseudoephedrine between about 1 January 2012 and about 30 June 2012. The charge was in the following terms:

“Between about 1 January 2012 and about 30 June 2012, at Sydney, in the State of New South Wales, did conspire with Adrian Lamella, Paul Valsamakis, David Harb, Bruno Napoli, Sarmarn Prom, Marlon Hikaiti-Paul, Levi Ratahi, Wayan Erlambang, Sebastian Musa, Peter Garcia and divers others, to import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity.”

8. Cranney was further charged with two bribery offences. Count 4 charged that Cranney between 1 January 2012 and about 31 March 2012, being a Commonwealth public official, namely an Australian Customs and Border Protection Service Officer, dishonestly agreed to receive a benefit for himself, namely money, with the intention that the exercise of his official duties would be influenced contrary to s 141.1(3) of the Criminal Code. Count 5, which was in the same terms, concerned the period between about 1 April 2012 and about 31 June 2012.

9. After a trial lasting about 8 weeks, Cranney was acquitted on counts 1 and 3. He and Huynh were found guilty on count 2. The jury also found Cranney guilty on counts 4 and 5. The applicants were sentenced to lengthy terms of imprisonment. They have appealed against their convictions.

Cranney’s appeal

10. Cranney’s notice of appeal identifies the following grounds:

“Ground 1: His Honour’s directions to the jury with respect to the proof of the element of ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug prescribed by s 307.11(1)(b) of the Code were erroneous; and

Ground 2: His Honour’s directions to the jury were in error in failing to properly direct the jury as to what is required to conspire to commit an offence, one element of which requires proof that the person ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug; and

Ground 3: The verdict was unreasonable because there was insufficient evidence that the Applicant was party to an agreement pursuant to which, at the time of the agreement, a person either intended to use any of the substance to manufacture a controlled drug or believed that another person intended to use any of the substance to manufacture a controlled drug.

Ground 4: The verdict was unreasonable on the basis that the evidence failed to establish to the requisite standard the existence of the single conspiracy charge as opposed to separate conspiracies, one relating to the March importation and one relating to the June importations.

Ground 5: A miscarriage of justice was occasioned as a result of the failure to direct the jury that it had to be satisfied that:

(a)   the Crown had proved a single conspiracy alleged and not two separate conspiracies relating to the March and June importations; and

(b)   the named co-conspirators were each party to a single agreement spanning both the March and June importations; and

Ground 6: In the alternative to ground [5], the charge was bad for duplicity.

Ground 7: A miscarriage of justice was occasioned by the Crown’s submissions in closing [sic] concerning the character of the Applicant and that of Huynh.

Ground 8: The verdicts on the bribery offences the subject of Counts 4 and 5 were unreasonable, or alternatively the trials on the bribery offences miscarried.”

Huynh’s appeal

11. The notice of appeal filed by Huynh identified seven grounds of appeal. At the hearing of the appeal, Huynh was granted leave to add two additional grounds. Accordingly, the nine grounds of appeal are:

“Ground 1: His Honour’s directions to the jury with respect to the proof of the element of ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug prescribed by s 307.11(1)(b) of the Criminal Code were erroneous; and

Ground 2: The verdict was unreasonable because:

(a)   there was insufficient evidence that the appellant was party to an agreement pursuant to which, at the time of the agreement, a person either intended to use any of the substance to manufacture a controlled drug or believed that another person intended to use any of the substance to manufacture a controlled drug; and

(b)   the evidence failed to establish to the requisite standard the existence of the single conspiracy charge as opposed to separate conspiracies, one relating to the March importation and one relating to the June importations.

Ground 3: A miscarriage of justice was occasioned as a result of the failure to direct the jury that it had to be satisfied that:

(a)   The Crown had proved a single conspiracy alleged and not two separate conspiracies relating to the March and June importations; and

(b)   The named co-conspirators were each party to a single agreement spanning both the March and June importations; and

Ground 4: In the alternative to Ground 3, the charge was bad for duplicity.

Ground 5: His Honour’s directions to the jury were in error in failing to properly direct the jury as to what is required to conspire to commit an offence, one element of which requires proof that the person ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug.

Ground 6: His Honour erred in admitting evidence of the appellant’s involvement in the failed importation in December 2011 as ‘relationship evidence’.

Ground 7: A miscarriage of justice was occasioned by the Crown’s submissions to the jury in closing address that they would not accept that the appellant was someone of prior good character and had engaged in money laundering.

Ground 8: A miscarriage of justice occurred as a result of impermissible questions asked by the prosecutor.

Ground 9: A miscarriage of justice occurred as a result of His Honour, the trial judge’s failure to ascertain precisely what use was to be made of the asserted lies.”

12. At the hearing of the appeal, Cranney was represented by Ms G Bashir SC and Huynh represented himself. However, the Court had the benefit of written submissions on Huynh’s behalf that were prepared by Mr J Dhanji SC.

A summary of the Crown case against the applicants

13. On the Crown case, the conspiracy that was the subject of count 2 followed on from a failed conspiracy to import a commercial quantity of pseudoephedrine in September 2011 to December 2011, the subject of count 1, in respect of which Huynh was not charged and Cranney was acquitted.

14. According to the Crown case, Cranney and Huynh were involved with others in a conspiracy to import substantial quantities of pseudoephedrine into Australia, via Sydney International Airport (“SIA”) between 1 January 2012 and 30 June 2012.

15. The Customs officers involved in the enterprise included Cranney, Paul Valsamakis (“Valsamakis”) and Adrian Lamella (“Lamella”). Cranney was the most senior officer amongst them. The baggage handler who participated in the enterprise, David Harb (“D Harb”), was a friend of Lamella’s and worked for Menzies Aviation (a baggage handling company) at SIA.

16. The other persons who participated in the enterprise during 2012 included Bruno Napoli (“Napoli”) (an associate of Lamella), Huynh (an associate of Napoli), and 7 couriers. Lamella met Huynh through Napoli in early 2011. Throughout 2011, Lamella, Huynh and Napoli met to discuss the possibility of importing illegal substances into Australia using Huynh’s contacts in Asia.

17. The Customs officers worked in various roles at SIA, where their primary responsibilities included the detection and prevention of illegal cross-border activity. This involved undertaking risk assessments of travellers and, where necessary, conducting searches of baggage, travellers and aircraft. For this purpose, each of the Customs officers, as required by their duties, had access to the Australian Customs and Border Protection Service (“ACBPS”) intelligence and investigative systems at SIA.

18. Cranney commenced employment with the ACBPS on 7 May 2001, and around the start of 2010 became the team leader of the Air Border Security team (“ABS team”) at SIA. He continued in this role until May 2012. The role of the ABS team was to identify and investigate any airport staff suspected of being involved in criminal activity. Staff within the ABS team monitored closed circuit television (“CCTV”) footage of airport staff and employees, and all passengers arriving at SIA. When required, ABS team members would conduct aircraft searches and clearances, and staff within the team had access to information regarding ongoing investigations and planned law enforcement activity. The ABS team also assisted with joint operations conducted with other law enforcement agencies. After Cranney became team leader of the ABS team, Valsamakis was transferred into the team. He continued to work in the ABS team until late 2012.

19. During the latter half of 2011, Lamella, Valsamakis, and D Harb commenced planning an importation of pseudoephedrine into Australia via SIA. Lamella communicated with Napoli and Huynh about being involved with sourcing the pseudoephedrine, however, this did not eventuate and Joseph Harb (“J Harb”) (an associate of Lamella) became involved for this purpose. Valsamakis was to be responsible for ensuring that the ABS team would not target the relevant flight and couriers on the date of the importation. D Harb’s job was to retrieve the luggage containing the pseudoephedrine from the flight and to take the luggage out of the airport. Lamella’s role was to liaise between the personnel working at SIA (Valsamakis and D Harb) and J Harb, who was responsible for organising the pseudoephedrine and any couriers.

20. During the planning stages of this importation, Lamella, Valsamakis, and D Harb shared information about their rosters so that suitable dates for an importation could be identified and discussed how much they expected to be paid. Eventually it was decided to conduct an importation on either 12 or 13 December 2011. However, this importation did not proceed. Whilst in Thailand in December 2011, J Harb and the other courier became concerned that they would be apprehended by the authorities. They returned to Australia without any pseudoephedrine.

21. A short time after this failed importation, Lamella, Valsamakis and Cranney met at Tempe Reserve, near SIA. During the meeting, Valsamakis was angry that the importation had not gone ahead. After some further discussion, Lamella informed Valsamakis and Cranney that he “had something else in the background that [he] was working on”. Sometime thereafter, Cranney, Lamella and Valsamakis met at SIA and discussed organising an importation before Cranney and Valsamakis were transferred out of the ABS team and they also discussed Lamella being transferred into the ABS team.

22. During December 2011, Lamella remained in contact with Napoli and Huynh regarding being involved in a future importation. Between 27 and 31 December 2011, Lamella and Huynh exchanged a series of text messages in which Huynh asked to meet. On 28 December 2011, Huynh sent a text message to Lamella stating “[d]on’t forget. Got good news”.

23. According to the Crown case, in early January 2012, Huynh informed Lamella that he had sourced pseudoephedrine in Vietnam and Lamella informed D Harb, Valsamakis and Cranney that “my mates are ready”. It was decided that the pseudoephedrine would be imported on a Thai airlines flight travelling from Vietnam to Sydney, via Bangkok, serviced by Menzies Aviation.

24. During this period there were also discussions between the conspirators regarding the amounts of money to be made. It was the Crown case that the SIA personnel all informed Lamella that they each expected to be paid $100,000.00 for participating in any importation. Lamella subsequently informed Cranney, Valsamakis and D Harb that they would each receive $50,000.00 in total for an initial importation planned for March 2012. An understanding was eventually reached between the SIA personnel that they would be paid $50,000.00 from the first importation, and that they would make up the shortfall ($50,000.00) from any subsequent importations.

13. On 2 January 2012, Huynh sent Napoli a text message which read “[w]hen you going to be free. I need the info asap as my mate will be here next couple of days and I need to know everything by then”. Throughout January 2012, Lamella, Napoli and Huynh regularly met by arrangement through Napoli to discuss the planned importation. In an intercepted call between Huynh and an unknown Vietnamese male on 19 January 2012, the Vietnamese male said “…Can I check something? My mate told me the other day that you’re able to get it out from up there but how do you do that?... You can get it out from the aeroplane, correct?” Huynh response included “…yeah, don’t say anything, come and see me, er, I’ll meet you and we’ll talk later ”.

14. Throughout late January and early February 2012, Lamella liaised with D Harb to obtain D Harb’s shift dates. On 2 February 2012 Napoli called Huynh and Huynh asked “you get [to] a find a date about it or what?”. Lamella continued to liaise with D Harb regarding his work dates, and to meet with Napoli and Huynh to discuss the importation. On 3 February 2012, Lamella called D Harb again to ask about the dates that he would be working as Huynh and Napoli were “busting his balls”.

15. By 15 February 2012, when Lamella left for an overseas holiday to Thailand, the date had been selected for the importation and the planning was in the advanced stages.

16. On 22 February 2012, Valsamakis and Cranney exchanged a series of coded text messages regarding the organisation of the importation. In the text messages, Cranney informed Valsamakis of the need for them to stay “at arm’s length” from Lamella and the others involved in the importation; that he should let others do the hard work and take the risks; and, that they would “reap the benefits”.

17. Between 18 and 23 February 2012, Huynh and Napoli engaged in a series of intercepted telephone calls in which they discussed the need to raise some money and the fact that they were ready. As at mid-February 2012, Huynh’s bank account statements recorded a balance of less than $300.00.

18. On 28 February 2012, Lamella returned to Australia and arranged with Napoli to meet that evening. That same day, Huynh rented a white Toyota Corolla hatchback (BN11Q0). That evening, Huynh and Napoli drove in the rented car to meet with Lamella at the end of his street. The three men met for about 10 minutes to discuss the importation planned for 9 March 2012.

19. During the planning of the importation, Lamella met with Huynh and Napoli and discussed the organisation of the couriers. During one meeting, Napoli stated that he would organise the couriers. At one of their meetings Lamella, Huynh and Napoli also agreed that each of the two couriers would have about 10 kilograms of “gear” in their bags.

20. On 2 March 2012, the two couriers Sarmarn Prom (‘Prom’) and Jesse Russell (‘Russell’) paid cash for two return business class tickets travelling Thai Airways to Ho Chi Minh City, Vietnam, departing on 3 March 2012 and returning to Sydney, via Bangkok, on 9 March 2012. On 3 March 2012, the couriers departed Australia.

21. At some stage prior to this importation, Napoli provided Lamella with a suitcase identical to the suitcases being used by the couriers and a copy of the bio-data pages from the couriers’ passports. Lamella subsequently met with D Harb and showed him the luggage that the couriers would be using and gave him the names of the couriers.

22. On 7 March 2012, Cranney texted Valsamakis to remind him that he was the acting ABS team leader for the shift commencing the following day. It was the Crown case that Cranney was acting in higher duties at this stage and could decide who would act in his team leader role in the ABS team. On the same date, D Harb called Lamella and they discussed problems with the burn phones, which were subsequently used by them on the morning of the importation to communicate with each other.

23. On 8 March 2012, at 10:10am, Valsamakis and Cranney exchanged text messages arranging to meet at work. At 11:01am, Valsamakis sent Lamella a text message in which he stated “[t]alk to the big fella. I gotta go home when I finish, he’ll fill me in”. That afternoon Lamella called Cranney in order to discuss the importation and they arranged to catch up and “go for a walk”.

24. After meeting with Cranney, Lamella met with D Harb to confirm that the importation was proceeding and other details. Lamella then met with Napoli who, in turn, met with Huynh.

25. On 8 March 2012, Prom and Russell boarded a Thai Airways flight in Ho Minh City, Vietnam, and on checking in, each of their bags weighed 28 kilograms. It is estimated that Prom had 17 kilograms of pseudoephedrine powder in his bag, and Russell had 15 kilograms of pseudoephedrine powder in his bag – a total of 32 kilograms (gross) of pseudoephedrine powder. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent) was about $1,600,000.00.

26. On 9 March 2012, D Harb, Cranney, Valsamakis and Lamella all commenced the morning shift at SIA. Cranney was an acting Australian Customs Service (“ACS”) Level 3 officer, responsible for the management of a number of teams and Valsamakis was the acting ACS Level 2 officer in the ABS team. Lamella was rostered to work in the Secondary Examinations area in the “back of hall”.

27. Valsamakis was responsible for ensuring that the cameras in the ABS room were directed away from D Harb. According to the Crown case, Cranney was responsible for ensuring that other areas of the ACBPS (the Control Room and the Business Group) weren’t investigating the couriers and the Thai Airways flight; and, Lamella was responsible for liaising between the SIA personnel and Napoli.

28. Thai Airways flight TG475 arrived at SIA at about 7:15am. Lamella and D Harb communicated via their burn phones. As planned, D Harb located the couriers’ bags, put them inside a baggage can and stored them in an “out of the way” area.

29. Huynh and Napoli communicated about the collection and delivery of the couriers’ bags. During these calls, Huynh indicated that he would be communicating with a third person about the collection of the pseudoephedrine.

30. Between 8:21am and 8:28am, Cranney called Lamella and Valsamakis and arranged to meet them for a coffee. When the three met, they discussed various topics relating to the importation, including whether it had gone well and when they would be getting paid. During that morning, both Valsamakis and Cranney, at different times, had provided Lamella with information about an ABS operation on a flight next to the Thai Airlines flight and Lamella passed that information on to D Harb.

31. Lamella and Napoli engaged in a series of coded text messages in which Lamella let Napoli know that D Harb was on his way with the bags of “gear” and that everything was progressing well.

32. As planned, D Harb met Napoli in the SIA staff car park. Napoli retrieved the two bags from the Menzies vehicle, put them in the white Toyota Corolla Hatchback he was driving and drove away. Napoli called Huynh, and confirmed that everything was good. They then arranged to meet at Huynh’s residence. Later in the same morning of 9 March 2012, Napoli and Lamella exchanged coded text messages confirming that the importation had been successful.

33. Between 16 and 22 March 2012, Valsamakis and Cranney communicated with each other, and Lamella, in code, about their dissatisfaction with the delay in being paid. Lamella in turn communicated with Napoli regarding the progress of the payments and the increasing irritation of the Customs officers in not having been paid.

34. On 23 March 2012, Napoli attended Huynh’s residence at 125 Livingston Rd, Marrickville. Shortly after, Napoli sent Lamella a coded text message in which he indicated that he had the money. The pair then arranged to meet at the Sydney Marriott Hotel where Lamella was staying for the weekend. Napoli gave Lamella a plastic bag with $150,000.00 cash in it and informed Lamella that the money was the first half of the payment.

35. Lamella subsequently divided up the cash so that there was $55,000.00 each for Cranney and Valsamakis and $20,000.00 for D Harb. On the evening of 25 March 2012, D Harb collected $20,000.00 from Lamella, being part of his payment for the importation. On the morning of 26 March 2012, Lamella met with Cranney and Valsamakis at work and gave them each a plastic bag containing $55,000.00 in cash. A few days after paying Cranney and Valsamakis, Lamella received an additional $100,000.00 in cash from Napoli which he divided between himself and D Harb.

36. On 30 March 2012, Cranney, Valsamakis and Lamella met at a cafe in Beverly Hills. During this meeting they discussed, in general terms, how well the importation had gone and Cranney and Valsamakis asked Lamella not to forget that they were still owed $50,000.00. They also discussed organising the next importation as soon as possible, which was also a subject of discussion during subsequent meetings at the Terrace Bar at SIA.

37. As both Cranney and Valsamakis were due to be transferred out of the ABS team in the months following the March importation, it was decided that they would try to do another importation as soon as possible. Valsamakis, Lamella and Cranney also discussed having Lamella transferred into the ABS room so that they could maximise their chances of the importations being successful. In the meantime, Lamella continued to meet with D Harb to identify potential dates for future importations based on their respective rosters. Lamella passed on the possible dates to Valsamakis, Cranney, Huynh and Napoli and also discussed with D Harb, Valsamakis and Cranney importing 3 bags per day, containing 20 kilograms each, so that they could make as much money as possible. It was ultimately agreed that they would import about 120 kilograms of pseudoephedrine split across three Thai Airlines flights arriving on the mornings of 4, 5 and 6 June 2012.

38. During the planning phase for the June importations, Lamella met with Napoli and also separately with Huynh to check on their progress in organising couriers and Huynh’s progress in sourcing the pseudoephedrine. During these meetings Lamella provided advice about the methods of concealment and baggage screening processes in Australia and overseas and the courier profiles that were to be used. Lamella also met with Valsamakis and Cranney at various locations (the Terrace Bar at SIA; Flower Power at Kingsgrove; Tempe Reserve; and Valsamakis’ home) to inform them of the progress of the plans.

39. Eventually, Napoli informed Lamella that Huynh had been able to source pseudoephedrine for the importations and the conspirators discussed the amount of money that would be made from the importations. Cranney and Valsamakis informed Lamella that they each wanted to be paid between $350,000.00 and $380,000.00 for the June importations. During their discussions about money, Cranney informed Lamella that he had been talking to people that he knew about the street price of pseudoephedrine and he thought that they were being underpaid.

40. It was the Crown case that between 22 April 2012 and 9 May 2012, Huynh travelled to Vietnam for the purpose of sourcing pseudoephedrine for the importations. Whilst he was in Hong Kong on 6 May 2012, Huynh purchased a Blackberry mobile phone. By 9 May 2012, five couriers had been recruited in Queensland for the purpose of travelling to Vietnam and importing the pseudoephedrine. On 21 May 2012, Prom booked 5 business class return tickets for the couriers to travel to Ho Chi Minh City, via Bangkok, with Thai Airways – all departing on 28 May 2012.

41. On 22 May 2012, Valsamakis and Cranney exchanged a series of text messages in which Valsamakis informed Cranney that he had spoken to senior personnel about extending his stay in the ABS team. Around this time, Cranney told Valsamakis that he would speak to a senior Customs officer about getting Lamella transferred into the ABS room to support him during the importations. Cranney subsequently recommended to Michael Mowbray (“Mowbray”), an ACS Level 3 supervisor, that Lamella be transferred into the ABS room for a 5 week period, commencing in late May 2012 and finishing just prior to a planned overseas trip from 2 July 2012. On the basis of Cranney’s recommendation, ACS Mowbray decided to rotate Lamella into the ABS team at this time.

42. On about 26 May 2012, whilst working in the ABS room at SIA, Valsamakis became aware that a baggage handler named Chris Weeden (“Weeden”), who was often in the company of D Harb, was under investigation. Valsamakis subsequently informed Lamella of the investigation into Weeden, and Lamella informed Cranney. According to the Crown case, Lamella and Cranney agreed that Weeden could be used as a distraction from their importations and as a diversion in any investigations.

43. On 28 May 2012, Huynh departed Australia for Vietnam. The five couriers booked to travel to Vietnam from Sydney on this date did not present for their Thai Airways flight as the pseudoephedrine to be imported between 4 and 6 June 2012 was not ready.

44. During late May/early June 2012, Lamella met Napoli on a number of occasions to communicate with Huynh, who was in Vietnam, and to co-ordinate the final details in relation to the planned importations. During these meetings they discussed how much “gear” should be in the bags and how they should be packed; they confirmed the number of couriers who were travelling, the dates on which the importations would take place and the flights that would be used; and they discussed where Napoli would collect the couriers’ bags from D Harb. Napoli provided Lamella with the couriers’ names and details and with a description of the suitcases that the couriers would be using. Lamella subsequently passed this information onto D Harb and Valsamakis. During this time, Cranney and Valsamakis would also communicate about whether it was necessary to meet with Lamella.

45. On 1 June 2012, the five couriers each purchased new Thai Airways Business class tickets to Ho Chi Minh City, Vietnam. They were booked to return to Australia on three separate flights, on 4, 5 and 6 June 2012. Prior to departing Australia each of the couriers had been provided with a large silver hard sided suitcase to use for the importation.

46. On the morning of 4 June 2012, Valsamakis and Lamella were working in the ABS team. Cranney, who was the team leader of the floor area of the Arrivals Hall, was responsible for passenger targeting and assessment. D Harb was working as a baggage handler.

47. Valsamakis and Lamella were operating the CCTV cameras in the ABS room from about 6:00am so that they were able to control the images appearing on the CCTV cameras, and (with the exception of some fixed cameras in the basement) keep the ABS cameras away from anything to do with the unloading of the Thai Airways flight.

48. Thai Airways flight (TG475) arrived with the couriers Marlon Hikaiti-Paul (“Hikaiti-Paul”) and Levi Ratahi (“Ratahi”) on board. Both had packed their checked-in luggage (the silver suitcases) in Ho Chi Minh City with packages containing pseudoephedrine powder designed to look like food. It is estimated that both couriers had about 17 kilograms of pseudoephedrine powder in each of their bags – a total of about 34 kilograms of pseudoephedrine powder. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent) was about $1,700,000.00.

49. Hikaiti-Paul and Ratahi left SIA without collecting their checked-in silver suitcases, which were retrieved from the flight by D Harb and stored in an out of the way area. Later, D Harb collected the couriers’ suitcases and, using a work vehicle, drove out of SIA to the pre-arranged meeting point where he delivered the bags to Napoli. During the morning Lamella and Napoli and Lamella and D Harb, had communicated with each other by phone regarding the delivery of the bags.

50. Whilst the Thai Airways flight was being unloaded, Cranney called Lamella (who remained in the ABS room with Valsamakis) to discuss the fact that the majority of the ABS team had been diverted away from the ABS room to deal with someone having stolen some property from a duty-free shop. Later that morning, Cranney, Valsamakis and Lamella met for a coffee and while they were together, Lamella informed them that the importation had been successful. That night Lamella and Napoli met to discuss the success of the importation that was to take place the following day.

51. On the morning of 5 June 2012, Valsamakis and Lamella were working in the ABS team, Cranney was working as a supervisor in the Customs Arrivals Hall, and D Harb was working as a baggage handler.

52. Lamella and Valsamakis were both involved in monitoring the CCTV cameras in the ABS room between 6:00am and 8:00am. During this time they kept the cameras directed away from the unloading of Thai Airways flight and focussed on a Cathay Airlines engineer.

53. Thai Airways flight TG475 arrived at SIA with the courier Wayan Erlambang (“Erlambang”) on board. Erlambang’s silver suitcase contained a large number of packages of pseudoephedrine powder designed to look like food. It is estimated that Erlambang had 18 kilograms of pseudoephedrine powder in his bag. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent), was about $900,000.00.

54. Erlambang proceeded to exit SIA without collecting his checked-in luggage, which was retrieved from the flight by D Harb and stored in a baggage can.

55. Later, D Harb delivered Erlambang’s suitcase to Napoli at Tempe. During the morning, Lamella, Napoli and D Harb communicated with each other by phone regarding the delivery of the bags. At about 11:10am, Cranney, Lamella and Valsamakis had a coffee together, and when they met, Lamella informed them that the importation had been a success.

56. On the morning of 6 June 2012, Valsamakis and Lamella each again commenced work in the ABS team. Cranney was working as a supervisor in the Customs Arrivals Hall. D Harb was working as a baggage handler.

57. At 5:05am, Cranney sent both Valsamakis and Lamella a text message asking them to meet for a coffee. When Lamella and Valsamakis met Cranney, there was another Customs officer present (ACS Wah Dao) who informed them about a Customs investigation that was underway in relation to two passengers who had not collected their luggage from a flight, and a baggage handler who had been removing luggage from flights.

58. On returning to the ABS room, Lamella and Valsamakis were informed by S Farr that the ABS team would be conducting a containment exercise in relation to the Thai Airways flight which was arriving that morning. This involved retrieving any luggage that matched the appearance of the luggage that had not been collected by the first two couriers on 4 June 2012. Valsamakis and Lamella volunteered to find the luggage.

59. Between 5:56am and 5:59am, Cranney and Lamella exchanged a number of text messages about meeting up. Lamella does not recall meeting Cranney at this time. However, Valsamakis recalls that at about this time, he and Cranney met either outside the Customs Secure Work Area or in one of the corridors at SIA. Cranney told him that he and Lamella needed to take care of the situation in “any shape or way possible”.

60. The Thai Airways flight from Ho Chi Minh City (TG475) arrived at SIA at about 7:15am. Lamella and Valsamakis attended the baggage area, located the couriers’ two silver suitcases and Valsamakis removed the airline bag tags from each of the bags in an unsuccessful attempt to remove identifying material from the bags. Lamella and Valsamakis then placed the suitcases on the conveyer belt to be sent to the baggage hall where the couriers had been detained.

61. The two couriers, Peter Garcia (“Garcia”) and Sebastian Musa (“Musa”), disembarked from the flight and were subsequently detained and arrested. Forensic examination of their suitcases revealed that they both contained a total of 28.29 kilograms of pure pseudoephedrine (40.7 kilograms gross) concealed within a total of 24 packages designed to look like food. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent) was about $2,000,000.00.

13. It is estimated that 28.29 kilograms of pure pseudoephedrine is capable of producing at least 19 kilograms of high-grade methylamphetamine hydrochloride. It is further estimated that the wholesale value of that amount of methylamphetamine would be about $4,750,000.00 (based on $250,000.00 per kilogram) and the street value would be about $15,200,000.00 (based on $800.00 per gram).

14. That afternoon, Valsamakis, Cranney and Lamella met at the Flower Power Nursery, Kingsgrove. At this meeting they discussed the fallout from the detection of the importation. Lamella indicated to Valsamakis and Cranney that they may have to “take a bit of a hit” on the amounts that they would be paid as about 40 kilograms of “gear” had been seized, but both Valsamakis and Cranney indicated that they still expected to be paid the agreed amount.

15. Between about 7 June 2012 and 28 June 2012, Valsamakis and Cranney communicated with each other, and Lamella, again in code, about being paid. Lamella in turn communicated with Napoli regarding payment. During this time, the Customs officers met and communicated about when and how much they would be paid. Valsamakis and Cranney pressured Lamella for payment.

16. Eventually on the evening of 28 June 2012, Napoli transferred a plastic bag containing a large amount of cash into Lamella’s vehicle in Lamella’s street. Lamella and Valsamakis sat in Lamella’s car and divided up the cash. They had agreed to short change Cranney by taking an extra $5,000.00 each, which would result in Lamella and Valsamakis each receiving $100,000.00 and Cranney only $85,000.00. After splitting the money, Valsamakis left with his $100,000.00. D Harb then collected his payment of about $70,000.00 from Lamella.

17. After communicating via mobile phone, Cranney drove to Lamella’s home, met with Lamella in his street and received a plastic bag containing $85,000.00 in cash. Cranney subsequently delivered the bag of cash to his brother G Cranney at a pre-arranged location in western Sydney.

18. On 30 June 2012, at 10:39am, Cranney called NIB and paid his health insurance 12 months in advance at a cost of $1,169.04. At 3:15pm, Cranney paid $3,000.00 ($2,600.00 being paid in cash) for a new TV, dishwasher and refrigerator at Clive Anthonys, Castle Hill. Analysis of Cranney’s financial records reveals that he had access to cash amounts from unknown sources between 1 January 2012 and 30 March 2012, and from 1 June 2012 to 30 December 2012. Most notably, for the month of June 2012 he had access to unknown source funds of $8,820.50, for July 2012 $6,300.00 and for August 2012 $2,882.25.

19. After arriving back in Australia on 8 June 2012, two days after the failed importation, Huynh departed Australia again on 2 July 2012 and did not return until 28 August 2012. During this period, large amounts of cash were deposited into his bank accounts.

20. Between early July 2012 and Lamella’s arrest on 17 December 2012, Cranney, Valsamakis and Lamella communicated and met to discuss the ongoing police investigation that was being undertaken in relation to their importations; the arrest of Paul Katralis and J Harb in relation to another importation conducted on 18 August 2012; and, the outstanding money for the June importations. During the course of these discussions, Cranney indicated to Valsamakis that he was unhappy about being underpaid and that he expected it to be rectified. Cranney warned Lamella that S Farr was going to speak to him about the relationship between J Harb and D Harb. Cranney raised with Valsamakis the prospect of doing another importation when Valsamakis returned from leave.

21. On 17 December 2012, Lamella was arrested and charged in relation to his involvement in importations conducted with J Harb in 2009 and 2010. On 7 February 2013, Lamella provided an induced statement to the police that detailed his involvement with Valsamakis, Cranney, D Harb, Huynh and Napoli in the importations of pseudoephedrine into Australia conducted between December 2011 and 6 June 2012. Lamella subsequently surrendered a total of $39,244.00 in cash seized by the Australian Federal Police (“AFP”) during searches of his residence and the residence of his cousin.

22. On 12 February 2013, Valsamakis was arrested by the AFP. He voluntarily participated in a recorded interview, in which he made substantial admissions regarding his involvement, and the involvement of Cranney, Lamella and D Harb in the importation of commercial quantities of pseudoephedrine into Australia between December 2011 and June 2012. On 14 and 21 February 2013, Valsamakis voluntarily surrendered a total of $110,400.00 in cash to the AFP. On 7 May 2013, Valsamakis provided a sworn statement to the police that detailed his involvement with Lamella and Cranney in the importations of pseudoephedrine into Australia conducted between December 2011 and 6 June 2012.

23. On 12 February 2013, Cranney, D Harb and Napoli were also arrested by the AFP. Cranney declined to be interviewed and at no stage has he provided any assistance to the authorities in the investigation of this or any other matter. No cash has been surrendered by or seized from Cranney.

24. On 14 October 2013, Huynh was arrested by the AFP. Huynh declined to be interviewed and at no stage has he provided any assistance to the authorities. No cash has been surrendered by or seized from Huynh.

Cranney’s case

86. No evidence was called on behalf of Cranney. It was his case that there had indeed been a conspiracy to import more than the commercial quantity of pseudoephedrine into Australia in December 2011, March 2012 and June 2012, but he was not a part to it. The focus of Cranney’s case was that the evidence of Lamella, Valsamakis and to a lesser extent, D Harb that implicated him was inherently dishonest and unreliable.

Huynh’s case

87. Huynh gave evidence, as did two other witnesses that were called in Huynh’s case, Steve Josevski (“Josevski”) and Quan Minh Chung (“Chung”). Exhibits relating to Huynh’s bank accounts and TAB winning tickets seized from his home during the execution of a search warrant were tendered (Exs 85, 86, 87 and 88).

88. As will be seen from the following summary, Huynh gave evidence denying involvement in the alleged conspiracy in 2012. It was submitted by his trial counsel that whilst the Crown may have created suspicion about Huynh’s involvement in the 2012 importation, it was not sufficient to prove the charge beyond reasonable doubt.

A summary of the evidence in Huynh’s case

89. Between 2011 and 2012 Huynh lived in Marrickville with his father and, at times, his grandmother. His mother lived in Vietnam.

90. Huynh met Napoli about 20 years ago and had hung around him for about 10 to 12 years. He met J Harb through Napoli and had only known him since about early 2010. He also met Lamella through Napoli in early 2011.

91. In about 2010, Napoli told Huynh that he had been robbed of “pseudo” tablets from his home by six to seven men, who had grabbed him off the street when Napoli was walking his dog. Napoli told him that he had been paid $5,000.00 by J Harb to hold onto two suitcases. Subsequently, Huynh was present when J Harb came to see Napoli and told him that he owed J Harb $700,000.00 for what had been stolen from him.

92. Huynh said that he had met Lamella, together with Napoli and two other men he did not know, at a Korean BBQ restaurant in Strathfield in early 2011. This was the first time Huynh had met Lamella. He denied discussing importing pseudoephedrine with Lamella.

93. The next time Huynh met Lamella was out the front of Napoli’s house, about two to three months later. Lamella and Napoli had a conversation but he wasn’t a part of it and only said “hi” to Lamella at this time.

94. In mid-2011, Huynh went to the Pine Inn with ‘Fred’ Faraj Ayoub (“Ayoub”), who he had known for years, initially meeting him through Ayoub’s sister. Some time prior to the meeting at Pine Inn, Huynh had a conversation with Ayoub at his sister’s house in Leichhardt and explained how Napoli had been robbed and owed J Harb three quarters of a million dollars. Ayoub told Huynh to tell Napoli that he could sort it out for him, but that he wanted something out of it.

95. When Huynh went to the Pine Inn, he was asked by Ayoub to give him a lift to Burwood as Ayoub was going to see Napoli. Vince and Napoli were at the Pine Inn when they arrived. They were joined by Lamella and another “big Aussie bloke”. Napoli had a discussion with Ayoub away from Huynh. On the way back from the Pine Inn, Ayoub told Huynh that he and Napoli had agreed to go to China to sort out an import for Lamella. Huynh told Ayoub not to get involved with these people. Huynh only ever went to the Pine Inn once.

96. Huynh said that he went to Hong Kong on 23 October 2011 because it was his mate, Eric Au’s, buck’s party. They had been friends for about 20 years. A running sheet and wedding table arrangements were tendered.

97. Huynh denied that he sourced pseudoephedrine at any stage during his travel to Hong Kong, Macau and China and back to Australia for Napoli or Lamella.

98. Huynh remembered meeting Lamella on lots of occasions but did not remember the dates. He agreed that between July 2011 and the end of December 2011 he had some telephone contact with Lamella and had met him.

99. He said that it was around that period that Napoli came up with the idea that they could “bullshit” Lamella that he could get couriers for Lamella, because he was putting pressure on Napoli to pay the debt. Lamella had found out that Napoli “had paid” J Harb about $300,000.00 to $400,000.00, and that J Harb was supposed to pay Lamella some of that, but only gave him $5,000.00. Huynh was present when Lamella pressured Napoli, and told Napoli to pay Lamella directly.

100. Due to Napoli’s financial difficulties, Huynh began to gamble for him, and Napoli would give Huynh’s winnings to Lamella to pay down the debt of about 200 or 300 thousand. Huynh testified that Lamella had some guys go around to Napoli’s house, who threatened him that if he didn’t pay up they were going to bash him. Napoli had come to Huynh’s house with tears in his eyes thinking he was going to get killed. Huynh told Napoli that he would do his best for him. Huynh told Lamella that he could organise couriers for him as a way of helping Napoli. He denied ever sourcing couriers for Lamella. Huynh said that he was present when Napoli was heavied by a couple of “Lebos” demanding money.

101. Huynh confirmed that he had spoken on the phone to Lamella on 22 October 2011 (Ex 6A) and met with him on that day. At the meeting, Lamella asked Huynh to bring back cold and flu tablets from Hong Kong. Lamella said that if he helped Napoli out, he would be making money for himself. Huynh said he told Lamella that he was not interested.

102. Huynh confirmed that he met Lamella on 10 November 2011 after he had returned from the buck’s party in Hong Kong. They had a discussion about Huynh trying to source couriers. He said that he was never really going to source couriers for Lamella.

103. Huynh agreed that he sent the “[d]on’t forget. Got good news” text to Lamella on 28 December 2011. When asked did he know what he was referring to when he sent that message, Huynh replied (Tcpt, 25 May 2015, p 2392):

“…I remember the good news part. That was in reference to a doctor that he was getting me to take up for him. He was taking a lot of sickies off he said and his doctor wasn’t prepared to give him any more sickies. So this doctor was going to give him sickies and he wanted Xanax or something like that because he said he was high on coke and he just needed some tablets to bring the edge off, he said. And I said to him that the doctor can get him human growth as well.”

104. Huynh agreed that he had a telephone conversation on 19 January 2012 with a Vietnamese speaking person, Binh’s friend, who asked him about “getting something from an aeroplane”. Huynh testified that he initially did not know what he was on about, then worked out that he was referring to “what Lamella could do”. He never rang the man back or got a SIM card (Ex 6A).

105. Huynh explained that Binh was a mutual friend of his and Napoli’s. Napoli talked to Binh about the death penalty because Napoli was thinking about being a courier along with his sister.

106. Huynh said that he met Lamella on 28 February 2012 outside Lamella’s home and that he was driving a ‘No Birds’ hire car at that time, as his VW Golf was in for service. Napoli had asked him for a lift to Lamella’s house. They discussed the importation of pseudoephedrine because Lamella wanted a lump sum from Napoli and he told Lamella to stop hassling Napoli for the money. He did not hear any discussions about couriers.

107. He remembered meeting Lamella before that time. Lamella, he said, had an idea that they were trying to bullshit him about the couriers and sort of knew that they were playing games with him so that’s when he hit Lamella up for the big amount of money. Lamella said that “if you’re not going to get me couriers…you have to pay for it” (Tcpt, 25 May 2015, p 2396).

108. Huynh agreed that Napoli had his hire car on the morning of 9 March 2012. Napoli had asked to borrow it for half an hour but didn’t tell him why. After that, one of “those Lebos” that had been to Napoli’s house arrived at Huynh’s home and demanded, on behalf of J Harb, that the payments be made faster. The “Lebo” asked Huynh to call Napoli for him because his phone was in the car and his mate had driven off with Napoli. The “Lebo” told Huynh what to say. Huynh then rang Napoli and passed on the message. He did not know that the message was about anything that was to be picked up from the airport or pseudoephedrine.

109. Huynh confirmed that he sent the text message “[r]ing me as soon as you finish so I can let my mate know” (Ex 6A). The “Lebo” came back to Huynh’s and asked Huynh to ring Napoli again. Huynh then gave his phone to the guy, who went outside with it.

110. Huynh denied ever giving Napoli any money for pseudoephedrine.

111. Huynh said that his travel to Vietnam on 22 April 2012, returning on 9 May 2012, was so that he could pick up his grandmother, who was 87 years old, and had been taken to Vietnam by his sister.

112. Whilst in Vietnam, Huynh found out that his mother had cancer. Huynh returned to Vietnam on 28 May 2012 to spend time with her, returning to Australia in early June 2012. Huynh denied that these trips had anything to do with sourcing pseudoephedrine.

113. Huynh admitted to purchasing a Blackberry whilst in Hong Kong (Ex 66). That phone was for his father. Huynh denied ever using a Blackberry or other phone to contact Napoli whilst he was in Vietnam.

114. Huynh used his winnings from a TAB sports bet to purchase a new VW Golf on 23 January 2012 for $39,495.40.

115. Huynh said that the money in his Commonwealth and ANZ bank accounts came from his TAB and casino winnings. None of those funds came from involvement with pseudoephedrine importations.

116. Huynh stated that 95 per cent of the TAB tickets seized from his home during the search warrant were winning tickets.

Cross-examination of Huynh by the Crown

117. Huynh agreed that he had bought SIM cards and used them in names other than his own. It was suggested to him that the reason for this was so that people would not be able to associate him with that number. He disagreed and said that he was just too lazy to set it up himself.

118. Huynh did not work, but earned money from gambling.

119. In relation to the mobile number ending in ‘901’, which was registered in the name of Monique Cole, Huynh stated that Napoli gave him a phone some time in December because Lamella requested him to. Huynh said he could have told his barrister this even though no questions were asked of Lamella about that. He denied that he got a new phone in December 2011 because he was ready to arrange for the supply of pseudoephedrine.

120. Huynh agreed that he wouldn’t call someone who was hounding his friend Napoli for money “mate”, in relation to the text to Lamella “[d]on’t forget. Got good news”.

121. Huynh stated that Napoli owed Lamella a balance of about $300,000.00 for pseudo but that it started at $700,000.00. Huynh said that he didn’t know how much pseudo the debt related to. He didn’t know how much was owed but at one stage J Harb was getting it from Napoli and then Lamella was. He didn’t know how much pseudo was stolen from Napoli.

122. Huynh agreed that he had made all the telephone calls recorded and that he didn’t dispute any of the surveillance evidence. It was suggested that he always met Lamella and Napoli outside to avoid a listening device. He denied this and said that he did not know Lamella well which is why he did not invite him in.

123. Huynh was present on the three occasions when men turned up to hassle Napoli for money. It was suggested that there were no calls between Napoli and Huynh to support his story. Huynh said there were phone calls where Napoli complained, but that they may not have been intercepted.

124. It was suggested to Huynh that in all the phone calls involving him from September 2011, he never talked in detail about what he and the other person needed to meet up about. Huynh explained that because the other person didn’t discuss it, he didn’t ask.

125. It was suggested that Huynh took Ayoub to the Pine Inn. He denied that.

126. Huynh was asked why he continued to associate with Lamella in the second half of 2011. He said it was because Napoli had asked him to stall Lamella.

127. Huynh was asked about Binh, his Vietnamese friend. He did not know his full name or address but had been to his house. Binh was the reason the man from Vietnam rang him asking about “getting it out” from aeroplanes. It was suggested that his response about not wanting to talk to this man was inconsistent with the transcript in which he had agreed to get a new SIM card. Huynh said that was how he reacted. He denied that he knew the man was ringing from Vietnam even though he said “I know” when the man told him “I’m over here I’m not over there”.

128. It was suggested to Huynh that shortly after the call with Binh’s friend, he went to the phone shop to get a new SIM card, as recorded in a phone call with Napoli. Huynh denied that he got a new SIM card and could have been getting a recharge of credit.

129. Huynh was asked about buying a new car in January, and whether it came with a three-year warranty. He agreed. It was suggested to him that his explanation, that he gave it to Bruno’s mate to fix up when it was under warranty, was made up to explain why he hired the white Toyota, which he denied.

130. The surveillance footage from 28 February 2012 of the meeting between Huynh, Napoli and Lamella in Lamella’s street was played to Huynh. It was suggested that Lamella and Huynh were the ones talking to each other and not Napoli and Lamella. It was suggested that Huynh’s version of events was not consistent with the footage.

131. Huynh denied that he had made up the whole story about the “Lebo” standover man knocking on his door at 7:55am in the morning.

132. Huynh denied that he had lied about Napoli coming up with the idea to “bullshit” Lamella that they could get couriers, because Lamella was putting pressure on Napoli to pay the debt.

133. Huynh was shown his bank account records (Ex 65). It was suggested, and he agreed, that he didn’t have much money in March 2012. It was suggested that he needed money at that time, which he denied. It was suggested that hocking a watch for $5,000.00, as recorded in an intercepted call, was inconsistent with having a win at the TAB of $70,000.00. He denied this.

134. Huynh denied that all of the intercepted calls and text messages between mid-February and 9 March 2012 related to planning for the importation.

135. Huynh denied that his meeting with Napoli on 23 March 2012 was about the payment for the March importation.

136. Huynh agreed that during his trip to Hong Kong in April and May 2012, he purchased a Blackberry phone. It was suggested that he used the Blackberry phone to communicate with Napoli, which he denied.

117. Huynh was asked how he funded his travel to Vietnam in April and May 2012. He answered that it was through TAB winnings of a couple of hundred thousand dollars. He was asked to point out the relevant deposit of those winnings. He said that he didn’t deposit them, he kept the money with friends.

118. Huynh was asked why he didn’t have losing TAB tickets. He said he hardly ever lost that year. He was asked why he kept the winning tickets. He said “because if someone is going to ask you where did you get all this money from”.

119. Huynh agreed, in relation to ex 79, that he used his mate’s name David Loi, as an e-mail account. He denied that this was in order to mislead people and said it was because he liked his privacy.

120. Huynh agreed that he knew pseudoephedrine could be manufactured into the controlled drug, methylamphetamine, and that it could be sold at very high profits. He denied that he wanted a part of that and had joined in.

Re-examination of Huynh

141. Huynh stated that he did not know Prom, the courier for the March importation.

142. Huynh stated that he only met with Napoli for “one minute” on 23 March 2012.

143. Huynh stated that in February 2011, when he won $77,000.00 at the TAB, he didn’t cash it out but held onto the ticket.

Steve Josevski

144. Josevski testified that he was a friend of Napoli’s, and saw him during 2011 and 2012. Josevski also knew Huynh.

145. Surveillance footage from 24 November 2011 was played. Josevski recalled being present at Napoli’s house that day. Josevski, Napoli and Huynh talked about the normal things that mates talk about including training and the gym. They did not talk about importing anything into the country.

146. Lamella was known to Josevski through Napoli. He described Lamella as an associate. On more than one occasion in 2011 Lamella asked him if he wanted to make some quick money. Lamella asked him to pick something up for him, but Josevski said “no”.

147. On one occasion near Christmas 2011, three or four guys of Middle Eastern appearance turned up at Napoli’s asking for money. Napoli then told Josevski he was in trouble.

Cross-examination of Josevski by the Crown

148. Josevski said that he had never seen the three men who turned up at Napoli’s place before. He agreed that Huynh wasn’t there on that occasion. When he spoke to Huynh about the incident Huynh knew nothing about it.

Quan Minh Chung

149. Chung gave evidence that he was a friend of Huynh’s and had known him for about four years. In October 2011, he, Huynh and others flew to Hong Kong and then Macau for Eric Au’s buck’s party, who was a mutual friend. The wedding was held, he thought, on 1 January 2012. Huynh was at the wedding.

150. He said that whilst they were in Macau, Huynh and others went to China for the day shopping. He did not see anything purchased, but when they came back, they spoke about it.

Ground 1 (Cranney): His Honour’s directions to the jury with respect to the proof of the element of ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug prescribed by s 307.11(1)(b) of the Code were erroneous

Ground 2 (Cranney): His Honour’s directions to the jury were in error in failing to properly direct the jury as to what is required to conspire to commit an offence, one element of which requires proof that the person ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug

Ground 1 (Huynh): His Honour’s directions to the jury with respect to the proof of the element of ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug prescribed by s 307.11(1)(b) of the Criminal Code were erroneous

Ground 5 (Huynh): His Honour’s directions to the jury were in error in failing to properly direct the jury as to what is required to conspire to commit an offence, one element of which requires proof that the person ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug

Submissions

151. It is convenient to deal with these grounds together as they relate to the same issue. The applicants’ complaint is that the judge erred in directing the jury in relation to the proof necessary to find a conspiracy to commit an offence under s 307.11 of the Criminal Code.

152. The applicants referred to s 307.11(b)(ii) of the Criminal Code which required proof that an accused believed that another person intended to use the imported pseudoephedrine to manufacture methylamphetamine, whereas the jury were directed by the judge that what was required was a belief that the pseudoephedrine would be used by someone to manufacture that controlled drug. As the misdirection concerned an essential element that the Crown was required to prove in order to establish count 2, the applicants submitted that there had been a miscarriage of justice.

153. Ms Bashir, on behalf of Cranney, observed that, as to the offence of conspiracy found in s 11.5 of the Criminal Code, the participation in, or being a party to a conspiratorial agreement constitutes the physical element of the offence. As to the mental element, there needs to be proved a common intention that the unlawful offence that is the subject of the conspiracy occurs, and it is insufficient to prove an expectation that the offence will occur. On the offence of conspiracy, it was necessary for the Crown to show an intentional agreement to commit an offence contrary to s 307.11. It was argued that the section was directed to the importer’s belief of another person’s intention (at the time of the importation).

154. Ms Bashir submitted that the “principal issue” was left to the jury by the judge in terms of whether the jury was satisfied that Cranney did or did not participate in the undisputed agreement involving Lamella, Valsamakis and others. Ms Bashir contended that the agreement that Lamella, Valsamakis and others were said to have participated in, on the basis that each of the participants believed “…that the substance would be used by someone in the manufacture…” of a controlled drug, did not establish the offence of conspiracy to commit the relevant s 307.11 offence.

155. The applicants accepted that no objection was taken at trial regarding the judge’s directions and that leave was required to argue this ground pursuant to r 4 of the Criminal Appeal Rules.

156. Ms Bashir submitted that the Crown bore the onus of proving the elements of the offence alleged against Cranney and that the misdirection concerned a central matter of proof which resulted in a miscarriage of justice. Accordingly, Ms Bashir submitted that leave should be granted under r 4 as there was a fundamental misunderstanding of the critical elements necessary in proof of the conspiracy offence by all trial counsel and the judge. Ms Bashir cited Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 at [69]–[69], [73]–[75] (McHugh J) (“Krakouer”).

157. Ms Bashir argued that a correct direction as to this element of the offence was necessary for a proper understanding of the evidence of Lamella and Valsamakis as to their own beliefs and intentions (and the absence of evidence of others) and additionally as to the intent to be established against Cranney. Furthermore, Ms Bashir submitted leave ought to be granted as the matter raised an important issue of construction concerning the Criminal Code.

158. In written submissions advanced on behalf of Huynh, Mr Dhanji pointed out that at first instance in R (Cth) v Standen [2011] NSWSC 1046, James J specifically rejected a formulation of the mental element advanced by the Crown which was in terms almost identical to the judge’s directions in the present case. Mr Dhanji wrote that, assuming the jury was satisfied that Huynh was a party to an agreement to import pseudoephedrine, an inference may have been open that Huynh believed the substance would be ultimately used by someone to manufacture methylamphetamine. Mr Dhanji argued this was insufficient as a belief that another person “intends to use any of the substance to manufacture a controlled drug” requires a present intention on the part of some other person, although it is not necessary that the person be precisely identified.

159. The Crown accepted that under s 301.11(b)(ii) proof was required that the accused believed that another person intends to use any of the substance to manufacture a controlled drug, and that his Honour’s direction did not correctly state the physical element of circumstances provided by the subsection. However, the Crown argued that the directions were sufficient and appropriately encapsulated what the Crown was required to prove in terms of the issues that were in dispute in the trial. The Crown submitted that Cranney at trial did not challenge the existence of a conspiracy of the type alleged in the indictment; namely a conspiracy to import a commercial quantity of pseudoephedrine, where the alleged co-conspirators intended to use or believed that another person intended to use any of the substance to manufacture a controlled drug. Cranney’s case at trial was that he was simply not part of the conspiracy.

160. The Crown contended that although the judge’s directions did not state the element in the terms of the offence provision, there was no material difference in substance between the phrase used to direct the jury, “would be used to manufacture” and the words used in the offence provision, “intended to use…to manufacture”. The Crown said that the judge’s directions required that the Crown prove a present belief held by Cranney and at least one other party, at the time of entering into the agreement, as to a result they expected would be achieved by another (or others) in the future. An intention on the part of another (or others) to achieve that result was implicit in the directions given by the judge.

161. It was put to the Court that the judge’s directions, on one view of it, imposed a higher threshold of proof upon the Crown. According to the judge’s directions, the Crown had to prove that not only did the applicant believe that another person (or persons) intended to use any of the pseudoephedrine to manufacture a controlled drug but that some other person (or persons) would act upon that intention in the event that pseudoephedrine was successfully imported. It was submitted in the circumstances of the trial and in the conduct of the cases for the applicants, there was no miscarriage of justice.

162. In the event that the applicants were granted leave under r 4, the Crown nevertheless submitted that no substantial miscarriage of justice has occurred and the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) would apply. That question is to be answered having regard to all the circumstances of the trial including the strength of the prosecution case and the relative merits of the defence case. The impugned directions, the Crown argued, did not create a fundamental defect in the trial. The Crown contended that these directions neither had the effect of denying the applicant procedural fairness nor having some substantial part of his case decided by the jury. The applicants’ cases were that they were not involved in the conspiracy alleged, which was conceded to be one that was in existence. Given the issues in dispute at the trial and the way in which the applicants’ cases were conducted and put to the jury, the Crown submitted that the impugned directions did not occasion a substantial miscarriage of justice.

Consideration

163. In considering these grounds, regard must be had to the provisions of ss 11.5 and 307.11(1) of the Criminal Code as they were in 2011–2012.

164. Section 11.5, relevantly, was as follows:

“11.5 Conspiracy

(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

Note: Penalty units are defined in section 4AA of the Crimes Act 1914.

(2) For the person to be guilty:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(2A) Subsection (2) has effect subject to subsection (7A).

(3) A person may be found guilty of conspiracy to commit an offence even if:

(a) committing the offence is impossible; or

(b) the only other party to the agreement is a body corporate; or

(c) each other party to the agreement is at least one of the following:

(i) a person who is not criminally responsible;

(ii) a person for whose benefit or protection the offence exists; or

(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.

(4) A person cannot be found guilty of conspiracy to commit an offence if:

(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or

(b) he or she is a person for whose benefit or protection the offence exists.

(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:

(a) withdrew from the agreement; and

(b) took all reasonable steps to prevent the commission of the offence.

….”

165. Section 307.11 provided:

“307.11 Importing and exporting commercial quantities of border controlled precursors

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to manufacture a controlled drug;

(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and

(c) the substance is a border controlled precursor; and

(d) the quantity imported or exported is a commercial quantity.

(2) The fault element for paragraph (1)(c) is recklessness.

(3) Absolute liability applies to paragraph (1)(d).”

166. Section 307.11 was amended by the removal of subs (1)(b) from 1 December 2015: Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015.

167. The Criminal Code defines a “border controlled precursor” in s 301.6 as a “substance that is listed by a regulation as a border controlled precursor.” Section 5F of the Criminal Code Regulations 2002 (Cth) (“Criminal Code Regulations”) lists pseudoephedrine as a border controlled precursor in relation to s 301.6 of the Criminal Code. Methylamphetamine is a controlled drug: Sch 3 of the Criminal Code Regulations.

168. Both the applicants and the Crown accepted that Hodgson JA correctly summarised the relevant elements required to establish count 2 in Standen v DPP (Cth) (2011) 218 A Crim R 28; [2011] NSWCCA 187 at [21], with the modification referred to in Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211 at [420] (“Standen v R”).

169. Hodgson JA (Adams and Hall JJ agreeing) said at [21]:

“[21] It is convenient to set out what appear to me to be the relevant elements for each of count 1 and count 2, in the case of count 1 referring to relevant provisions of the Criminal Code, and in the case of count 2 referring to relevant provisions of the Drug Misuse and Traffıcking Act:

Count 1

1. That the accused entered into an agreement with one or more other persons (including at least Jalalaty): s 11.5(2)(a).

2. That the accused or at least one other party to the agreement (Jalalaty) intended that an offence would be committed pursuant to the agreement (s 11.5(2)(b)), namely, in this case, an offence under s 307.11 (the offence) involving the following elements:

(1) A person imports a substance: s 307.11(1)(a).

(2) The substance is a border control precursor, namely,

pseudoephedrine: s 307.11(1)(c); s 300.2; s 314.6.

(3) A person(s) committing the offence either intend(s) to use

any of the substance to manufacture a controlled drug or

believes that another person intends to use any of the

substance to manufacture a controlled drug: s 307.12(1)(b)(i)

and (ii).

3. The substance would be a commercial quantity: s 307.11(1)(d);

s 307.11(2); s 11.5(7)(a).

4. That the accused, or at least one other party to the agreement

committed an overt act pursuant to the agreement: s 11.5(2)(c).” [Emphasis added.]

170. In Standen v R, the Court (Bathurst CJ, Hoeben CJ at CL and McCallum J) agreed with Hodgson’s JA formulation but said at [420]:

“…except we would prefer to state the physical element of the offence as participating in, or being a party to, an agreement, rather than being the entry into it.”

171. Before referring to the applicants’ complaints concerning the judge’s oral and written directions to the jury, it is important to record that his Honour assiduously sought the assistance of the Crown Prosecutor and the applicants’ trial counsel as to the correctness of his proposed directions. His Honour provided the parties with prepared written directions as to elements of the charges which his Honour supplemented with a written draft of his proposed summing-up. All of these documents contained the directions which the applicants now contend should not have been given. To say the least, it is indeed unfortunate that none of the trial counsel referred the judge to Hodgson’s JA summary of the relevant elements. Neither trial counsel for the applicants nor the Crown raised any objection to the proposed directions concerning the element of belief that the pseudoephedrine “would be used by someone to manufacture a controlled drug, in this case methylamphetamine” (SU 42).

172. Turning to his Honour’s directions, his Honour provided to the members of the jury in the course of summing-up written directions that relevantly provided with respect to counts 1 and 2:

“Conspiracy

The offence of conspiracy, which is the offence charged in each of counts 1 and 2 on the indictment, has several elements. In general terms, a verdict of guilty cannot be returned unless the Crown satisfies you beyond reasonable doubt (BRD) of all of the following elements:

1. That within the dates charged, the accused entered into an agreement with at least one other of the persons named in the charge on the indictment.

2. That the object of the agreement was the commission of the offence of importing a border controlled precursor in an amount exceeding a commercial quantity. Put another way, that by their agreement, the accused and at least one other party to it, intended: a) to import pseudoephedrine; b) in an amount exceeding 1.2kg.

3. That the accused and at least one other person to the agreement believed that the pseudoephedrine would be used by someone to manufacture a controlled drug, in this case methylamphetamine.

…

In the context of these three cases (the trial of Mr Cranney on counts 1 and 2 and the trial of Mr Huynh on count 2) a number of significant matters are not in dispute.

…

Likewise, it is not disputed that there was, in the period of 1 January 2012 to 30 June 2012, an agreement between Lamella, Valsamakis, David Harb and others including Garcia to import more than a commercial quantity of pseudoephedrine, each of those believing that the substance would be used by someone in the manufacture of methylamphetamine or ice. Again, it is not disputed that overt acts in pursuit of the agreement were committed by at least some of those admitted participants.

Assuming you are satisfied BRD as to those matters not in dispute, the principal issue for your determination in the context of these three cases is whether the accused were participants in the agreements charged against them. If you are not satisfied BRD in relation to that question for either accused for any count then the only available verdict is not guilty. If you are satisfied BRD on the principal issue, there is a subsidiary issue about which you must also be satisfied BRD on any count before you could return a verdict of guilty on that count. The additional question is whether the accused believed the pseudoephedrine would be used by someone to manufacture methylamphetamine.

286. There is no substance in Cranney’s complaint that he was disadvantaged by his Honour’s directions. The simple answer to his complaint of disadvantage is that Huynh gave evidence whereas he neither entered into a record of interview nor testified during the trial. Furthermore, the Crown Prosecutor’s remarks about Huynh running around with people that he knew to have been involved in criminal activity were confined to Huynh which the judge directly addressed in his instructions to the jury. His Honour’s directions were not required to be identical for Cranney and Huynh.

287. There is no merit in Huynh’s complaint that the directions reminded the jury of Huynh’s association with people that he knew were involved in criminal activity. To address any potential prejudice to Huynh, the judge properly told the jury that the Crown Prosecutor’s submission should be disregarded.

288. No complaint was made by the applicants’ trial counsel concerning his Honour’s character directions. His Honour sought the “input” of counsel by providing them with a draft of the character directions prior to his summing-up. On at least three occasions, his Honour enquired as to whether counsel had any issue with the proposed directions but nothing was raised about the character direction.

289. Any danger to the fairness of the applicants’ trials was eradicated by the instructions to the jury. No risk of a substantial miscarriage of justice was occasioned by the judge’s refusal to discharge the jury or by his Honour’s directions.

290. Ground 7 (Cranney) and Ground 7 (Huynh) have not been established.

Ground 8 (Cranney): The verdicts on the bribery offences the subject of Counts 4 and 5 were unreasonable, or alternatively the trials on the bribery offences miscarried

296. As Ms Bashir’s submission is founded upon the success of either Grounds 3 or 4, the disposition of this Ground may be briefly stated.

297. It was the Crown case that if the jury was satisfied of Cranney’s guilt in respect of the conspiracy offences, it would automatically follow that the jury would be satisfied beyond reasonable doubt that Cranney had dishonestly agreed to receive a benefit with the intention that his duties as a customs officer would be influenced. His Honour confirmed the Crown’s position in his written instructions and summing-up to the jury. Cranney was acquitted on counts 1 and 3, but found guilty on counts 4 and 5.

298. Ms Bashir’s submission that it was not open to the jury to find Cranney guilty of count 5 on the basis of questions put to Lamella in cross-examination which Lamella did not accept, is undoubtedly correct. However, the Crown case was not premised on these answers. Having made my own independent assessment of the whole of the evidence against Cranney, it was open to the jury to be satisfied beyond reasonable doubt that Cranney had committed the bribery offences being counts 4 and 5.

299. Although Ms Bashir appeared to place some reliance on the success of Ground 4, the principal contention in that ground is not relevant to the present argument. In any event, Grounds 3 and 4 have not been upheld.

300. Accordingly, Ground 8 has not been established.

Ground 6 (Huynh): His Honour erred in admitting evidence of the appellant’s involvement in the failed importation in December 2011 as ‘relationship evidence’

301. Before the jury was empanelled, Huynh applied for a separate trial and objected to certain evidence which the judge placed into two categories. The first category was evidence of Huynh’s participation in activities during September to December 2011, which the judge described as being “directed to the attempted fulfilment of a conspiracy the subject of count 1, with which he has not been charged” (Judgment, 26 March 2015, p 1).

302. His Honour described the second category as being evidence concerning “Huynh’s involvement in connection with a failed importation of pseudoephedrine from China in early to mid-2011” (Judgment, 26 March 2015, p 1).

303. The judge decided to deal with the objections to the evidence before determining Huynh’s application for a separate trial.

304. Cranney was charged with count 1 but Huynh was not. Count 1 was a charge of conspiracy to import a commercial quantity of pseudoephedrine between about 1 September 2011 and about 21 December 2011. Cranney, Lamella, Valsamakis, Napoli, D Harb and others were alleged to be members of this conspiracy.

305. A convenient summary of the evidence that was said by the Crown to be relevant to the first category is found in paragraphs 23 to 57 of a document entitled, Summary of the Crown case (“the Crown case statement”). Upon the Crown case, the evidence of Huynh’s participation in activities that were directed to the attempted fulfilment of the conspiracy, the subject of count 1 included:

1. intercepted telephone calls and text messages between Lamella and Napoli during September to November 2011, in which they arranged to meet with Huynh, discussed Huynh’s attempts to source “gear” overseas and later their increasing frustration with him; and

2. several meetings between Lamella and Huynh, either on his own or with Napoli, during September to November 2011 and Lamella’s evidence as to what occurred at those meetings; and

3. meetings between Lamella and Napoli; and

4. intercepted calls and text messages between Huynh and Lamella during the period of 11 October 2011 to 19 November 2011 arranging or attempting to arrange to meet up.

306. The principal objection raised by Huynh to the first category of evidence was that it gave rise to a danger of unfair prejudice to him which outweighed any probative value that it might have. Huynh submitted that it should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) (“Evidence Act”). The Crown submitted that the evidence was relevant in the case against Huynh, to show precisely how it was that he became involved in the 2012 conspiracy (count 2). It was the Crown case that the evidence gave appropriate context to the genesis of count 2 and as background to the relevant relationships. The Crown contended that the evidence related to events that occurred prior to the critical text message sent by Huynh to Lamella on 27 December 2011 in which Huynh told Lamella that he has got “good news”. His Honour described that text message “to arguably be, the catalyst for the formation of the count 2 conspiracy” (Tcpt, 26 March 2015, p 2).

307. A summary of the evidence that was said by the Crown to be relevant to the second category of evidence is found in paragraphs 14 to 22 of the Crown case statement. Upon the Crown case, the evidence of the Huynh’s participation in a failed importation of pseudoephedrine from China in mid-2011 included evidence of:

1. the initial meeting between Huynh and Lamella in early 2011, arranged by Napoli, a mutual friend, during which they discussed importing drugs into Australia; and

2. Huynh’s approach to Ayoub about being a courier for the purpose of importing pseudoephedrine from China; and

3. a subsequent meeting at the Pine Inn between Huynh, Ayoub, Lamella and others in which arrangements for the importation from China were discussed in detail; and

4. Ayoub’s travel to China; and

5. Napoli notifying Lamella that Huynh had been unable to source pseudoephedrine.

308. The second category of evidence was the subject of a tendency notice under s 97(1) of the Evidence Act. However, the Crown Prosecutor told the judge that the tendency notice was served “in an abundance of caution” (Judgment, 26 March 2015, pp 1–2). The Crown submission was that the evidence in the second category was relevant in a very similar way to the evidence in the first category. A tendency notice had not been served in relation to the first category evidence.

309. Huynh’s argument was that the evidence should be excluded under s 137 of the Evidence Act.

The judgment on voir dire

310. After hearing argument on the voir dire, the judge delivered judgment.

311. In respect of the first category of evidence, his Honour said (Judgment, 26 March 2015, p 4–5):

“The extent of its probative value may be assessed by analysing the extent of its capacity, either in its own right or in addition to other evidence that will be adduced by the tendering party, to rationally affect the assessment of the probability of the existence of facts in issue. Either way, it seems to me that evidence which demonstrates the nature and extent of the relationships between the relevant individuals, which demonstrates the genesis of the object of the conspiracy and which demonstrates what each of the individuals is equipped or prepared to do towards fulfilment of those objects, is probative in support of the Crown case on the count 2, conspiracy, and has the capacity to be substantially so regarded by a jury. This is precisely what the first category of evidence illustrates.

It goes much further than whatever might be achieved in proof of the Crown case by simply having Lamella give his understanding of the meaning of the December 27 communication. It also goes, in anticipation, to serve as a corroborative foundation to the evidence otherwise expected to be given by Lamella. As Brennan J said in Harriman at paragraph 6:

‘If as a matter of human experience the evidence tends to establish the events charged, or a fact in issue, otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible.’

In my view the first category of evidence is admissible as being relevant in the way I have outlined. It seems to me that this is precisely the sort of evidence with which the line of cases, commencing with Harriman v The Queen (1989) 167 CLR 590 especially at 594 per Brennan J and applied in The Queen v Quach (2002) NSWCCA 519 is concerned. Each of those cases provides an example of a case where conversations or conduct relating to uncharged matters were received into evidence in order to establish the true nature either of the charged transaction or of the relationships between those involved. That is essentially what is sought to be done by this evidence in the present case. The evidence does not merely show a propensity to engage in criminal conduct. Indeed, on one view, given the way it is put by the Crown, it does not necessarily suggest prior criminal conduct or propensity at all. It is evidence which has a high probative value going directly to demonstrating, by way of appropriate contextual underpinning, the genesis and the existence of the count 2 conspiracy and the nature and scope of the agreement and the roles it was intended or anticipated that each of its participants might contribute towards its effectuation.“

312. When considering the objection based on s 137 of the Evidence Act, his Honour said (Judgment, 26 March 2015, p 6):

“In my view, the balancing exercise which s 137 requires in respect of this first category of evidence falls in favour of probative value. The evidence is plainly prejudicial because it aids, and potentially not insubstantially, proves the Crown case against Mr Huynh. However, the danger of unfair prejudice is relatively limited by comparison, in my view, and can in any event be adequately met by appropriate directions.”

313. The judge admitted the first category of evidence against Huynh. This evidence was also led in the Crown case against Cranney.

314. The judge went on to consider the admissibility of the second category of evidence. His Honour noted that second category of evidence was a “little more remote in time” from the charged conspiracy but only by a few months. His Honour observed that the contemplated methodology of the importation was slightly different to that ultimately employed. The judge said (Judgment, 26 March 2015, p 7–8):

“The evidence also gives further depth to an understanding of the nature and scope of the relationships between Messrs Huynh, Napoli and Lamella, in particular, and informs an appreciation of their particular roles in their dealings with one another. In particular in that respect it exposes the accused as the person apparently primarily responsible for sourcing the pseudoephedrine in Asia and identifying and recruiting couriers.

It seems to me that the differences I have identified between this evidence and the evidence of activity in late 2011, the subject of the first category, are not so great that it can be said that the evidence is not relevant. It is evidence which is capable of rationally affecting the assessment of the probability of the existence of facts in issue in respect of the count 2 conspiracy. That is, it goes to the motives, the relationships, the individual roles and capacities of the various alleged participants in the conspiracy. It goes to the likelihood of the accused being a participant in the count 2 conspiracy. It goes to his state of mind as of January 2012 and beyond. It also goes potentially to support the credit of Lamella who, in respect of the role and conduct of the accused in 2012, indicates that Huynh’s contribution to the pursuit of the objects of the conspiracy was to source pseudoephedrine in Asia and to identify and recruit couriers to effect the transportation of the substance.

Notwithstanding the differences I have outlined, temporally and methodologically, I do not think it can be fairly said that this evidence does not have the capacity to have substantial probative value.”

315. As to s 137 of the Evidence Act, the judge said (Judgment, 26 March 2015, p 8–9):

“Ultimately my conclusion, in relation to this category, is the same. It is admissible. It has the capacity to be highly probative. There is some potential for unfair prejudice through impermissible reasoning. However, such prejudice as exists is adequately met by directions. In other words, the balancing exercise which s 137 requires in respect of this second category of evidence, falls in favour of probative value.

For all those reasons, again subject to the evidence being led in a form which is otherwise admissible, the substance of the evidence which I have described as the second category, will be admitted in the case against Mr Huynh."

316. The judge admitted the second category of evidence against Huynh. This evidence was not led by the Crown against Cranney.

317. The judge went on to say that although it may have been unnecessary to reach a concluded view concerning the tender on a tendency basis, it seemed to him that the second category of the evidence had the capacity to rationally affect the assessment of the probability of the existence of facts in issue to a significant extent. His Honour said that if the evidence was ultimately characterised as tendency evidence, any unfair prejudice could adequately be met by directions. His Honour’s conclusion was that in considering the balance required by s 101 of the Evidence Act, the probative value of the evidence substantially outweighed any unfair prejudice to Huynh.

The directions to the jury

318. Relevantly, the judge instructed the jury to approach the evidence as follows (SU 21–22):

“In relation to the evidence that has been led against Mr Huynh there is an additional matter I should mention and that concerns what you have heard described as the relationship evidence. You will be well aware that the only offence charged against Mr Huynh is that he participated in the conspiracy in 2012 that is the conspiracy involving the March and June importations.

The evidence led by the Crown in relation to Mr Huynh include some evidence which predates the charged dates of that conspiracy. In particular, as I have already mentioned, you will recall there is the evidence of the meeting in Strathfield at the restaurant, the disputed evidence concerning what was discussed and who was present at that meeting. There is also evidence, again disputed, concerning his presence at the meeting or meetings, depending on whose version you accept, at the Pine Inn in relation to proposed importations in 2011. There is also evidence of communications, variously between Mr Lamella, Mr Napoli and Mr Huynh in late 2011 in the lead up to the failed importation involving Joseph Harb, and you will no doubt recall those communications.

All that evidence the Crown has led concerning activities and communications involving Mr Huynh was placed before you as evidence of what might be best described as background to the 2012 conspiracy charge. Mr Huynh is not charged with any offence other than the 2012 conspiracy. He is not charged with any offence concerning any of his conduct prior to 2012, and the evidence involving Mr Huynh prior to 2012 is led to demonstrate essentially the nature of the relationships between Mr Huynh and Mr Napoli on the one hand, and Mr Huynh and Mr Lamella on the other.

That is why this evidence was placed before you and how the Crown relied upon it in proof of the 2012 conspiracy charge, and that is the only reason that the evidence is before you and you cannot use it for any other purpose. Whether you give it the significance that the Crown asks you to place on the evidence is a matter for you, but that is the only relevance it has to your deliberations.”

Argument on appeal

319. Huynh submitted that the judge did not explain how the admitted evidence affected the likelihood of the existence of the conspiracy in 2012. As to his Honour’s determination that the evidence was relevant in the manner contemplated in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 (“Harriman”), Huynh argued that there was nothing particular about the character of his relationships with his alleged co-offenders or his actions in 2011 that gave the evidence the same probative value as contemplated in Harriman. Reference was made to R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 where Harriman was applied. In that case, as in Harriman, the relationship evidence was led to exclude the possibility that the offender’s visit to a house where a drug supply occurred was not capable of innocent explanation.

320. The argument was that if the evidence was used in the manner contemplated by his Honour’s direction, it would only further the Crown case if the jury reasoned that because Huynh had behaved in a particular manner in his relationships with his alleged co-offenders in the past, he was likely to behave in the same way in 2012. Huynh said that this amounted to tendency reasoning about which the judge did not direct the jury. Further, the judge was unable to articulate how the evidence may be used as tendency evidence and was not in a position to properly assess its capacity to rationally affect the assessment of the probability of the existence of a fact in issue, such that it could be said that the tests provided by ss 97 and 101 of the Evidence Act were properly applied.

321. The Crown submitted that his Honour’s reasons demonstrated that the evidence was highly probative of whether Huynh was a party together with Lamella, Napoli and others to the conspiracy in count 2. This was the central issue in the trial.

322. The Crown argued that the circumstances in Harriman could be directly related to the circumstances of the case. Further, the probative nature of the evidence in Harriman did not depend solely on the nature of the relationship between the offender and the co-offender outside the commission of the offence.

323. In a further submission, the Crown contended that his Honour’s direction to the jury did not invite tendency reasoning.

Consideration

324. As emphasis was placed in submissions on the decision of the High Court in Harriman, it is worthwhile re-visiting the principles established in that case. In Harriman, the accused and another co-offender (the chief prosecution witness) had travelled to Thailand together. The co-offender then travelled to London and posted heroin to addresses in Australia. Harriman was charged with five counts of being knowingly concerned in the importation of heroin contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The High Court unanimously admitted evidence of Harriman’s prior involvement with the co-offender in the sale of heroin.

324. In identifying the principles that he would apply in admitting the evidence, Brennan J said at 594:

“However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence , the evidence is admissible. I would therefore respectfully agree with McHugh J that evidence of events which are part of the res gestae is admissible – and will usually be admitted – even if that evidence reveals the commission of an offence other than the offence charged.”.

326. This is the passage of Brennan J’s judgment that his Honour referred to in his judgment on the voir dire.

327. Both categories of the evidence revealed the true nature of the relationship between Huynh, Napoli and Lamella. As his Honour explained when referring to the second category (see [312] above):

“...[the evidence] informs an appreciation of their particular roles in their dealings with one another. In particular in that respect it exposes [Huynh] as the person apparently primarily responsible for sourcing the pseudoephedrine in Asia and identifying and recruiting couriers”

328. Both categories of evidence pointed to a substantial involvement by Huynh in the planning of importations of pseudoephedrine into Australia in 2011. All of this evidence could support an inference of his participation in the conspiracy to import pseudoephedrine in 2012. Furthermore, the evidence supported the Crown case on the significance of the text messages between Huynh, Lamella and Napoli; the various meetings that they attended; the intercepted telephone call between Huynh and an unknown Vietnamese male on 19 January 2012; Huynh’s trips to Vietnam; and the large payments into Huynh’s bank account.

329. As in Harriman, the evidence was admissible as being highly probative of the criminal character of the association between Huynh and the co-offenders at the time of the importations in March and June 2012. I would reject Huynh’s argument that the disputed evidence was in reality tendency evidence and productive of tendency reasoning.

330. The judge appropriately carried out the balancing exercise required under s 137 of the Evidence Act. His Honour considered that any prejudice to Huynh could be adequately met by directions.

331. Having admitted the evidence, it was unnecessary for his Honour to consider the matter further.

332. The applicant’s complaint concerning the direction to the jury (see [316] above) depends upon the rejected premise that the evidence was, indeed, tendency evidence. In any event, the judge’s instructions to the jury included a direction against propensity reasoning. His Honour’s directions included the following (SU 22–23):

“In particular, you must not use that evidence to reason that because Mr Huynh has behaved in a certain way on a particular occasion, he must have behaved in that or a similar way on the occasions relevant to the conspiracy charge. You must not use that evidence to reason that Mr Huynh is the type of person who would commit the offence with which he has been charged. You cannot punish him for other conduct attributed to him by finding him guilty of the charge in the indictment. That is not the Crown’s argument and it would be contrary to the law and to your duty as a juror to use the evidence for a purpose other than its specific basis relied upon by the Crown which I have outlined.”

333. I would reject Ground 6 of Huynh’s appeal.

Ground 8 (Huynh): A miscarriage of justice occurred as a result of impermissible questions asked by the prosecutor

Argument

334. Huynh directed this Court’s attention to the following questions that had been put to him by the Crown Prosecutor asking if Lamella was lying (Tcpt, 25 May 2015, p 2443; Tcpt, 25 May 2015, p 2446):

“Q. He has made it up, has he?

A. I didn’t say he made it up.

Q. Did he make that up?

A. Well, I didn’t tell him to.

Q. So he has made it up?

A. You have to ask Freddy that.

Q. So he made it up?

A. Of course.

Q. So if Lamella said that, he is lying is he?

A. Well, he must be.”

335. Huynh submitted that those questions were impermissible and breached the principles in Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [8]–[11] (“Palmer”) and R v Rich (1998) 102 A Crim R 165 (“Rich”).

336. Reference was also made to the rhetorical question asked in the Crown Prosecutor’s closing address (Tcpt, 27 May 2015, p 2610):

“Is he telling the truth when he says I don’t recall, what I thought when I received the message? It was a prime opportunity, you might think if Lamella was some malicious person trying to incriminate Huynh, a person who was not involved in any importation. It was a perfect opportunity to say, oh yeah”.

337. Huynh contended that the Crown Prosecutor was bolstering Lamella’s testimony with his own personal opinion.

338. Another complaint was that the Crown Prosecutor asked him the following in cross-examination (Tcpt, 25 May 2015, p 2416):

“Q. Where did you work at the time?

A. I didn’t work.

Q. You didn’t work, is that right?

A. Yeah.”

339. Huynh argued that these questions were highly prejudicial and irrelevant. Huynh’s contention was that they could only go to character and no leave had been sought which was a breach of s 112 of the Evidence Act.

340. It was submitted that as Huynh’s credibility was central to the jury’s deliberations, any undermining of it by impermissible questions would have impacted adversely on his credibility. R v Soto-Sanchez (2002) 129 A Crim R 279; [2002] NSWCCA 160 at [29], [33] and [44] (“Soto-Sanchez”) was cited as was Stanoevski v The Queen (2001) 202 CLR 115; A Crim R 247 at [58] (“Stanoevski”).

341. Huynh accepted that r 4 applied, but submitted that leave should be granted.

342. The Crown said that he would not endorse the type of questions reflected in the passage of the Crown Prosecutor’s cross-examination at [332] above. Nevertheless, the Crown’s submission was that these questions by the Crown Prosecutor did not occasion a miscarriage of justice. The Crown argued that the impugned portion of Huynh’s cross-examination did not tend to deflect the jury from a proper assessment of the Crown witnesses and of Huynh. Furthermore, the questioning was said by the Crown not to give rise to an explicit or implicit reversal of the onus of proof.

343. The Crown said that the ultimate question is whether the Crown Prosecutor’s cross-examination was such a departure from what is expected of a prosecutor that it gave rise to an impermissible miscarriage of justice. The Crown pointed out that these questions occupied half a dozen lines in a trial that went for “30 odd days”. The Crown referred to Mr Djemal’s cross-examination of Mr Ayoub, who put implicitly to the witness that he was lying.

344. The Crown submitted that the reference to Lamella in the Crown Prosecutor’s address was not a statement of personal opinion. Rather, the remarks were simply an argument made to the jury in respect of whether Lamella may be accepted as a credible witness. The Crown argued that there was nothing impermissible arising from this aspect of the Crown Prosecutor’s address.

345. As to the line of questioning regarding Huynh’s employment, the Crown contended that the Crown Prosecutor’s questions were neither highly prejudicial nor irrelevant in circumstances where large cash deposits were made into Huynh’s bank accounts in the months after the June importations. No issue requiring leave was raised by the cross-examination.

Consideration

346. There is no substance in Huynh’s complaint concerning the rhetorical question asked by the Crown Prosecutor that is quoted at [334] above. It is not impermissible for a Crown Prosecutor to place before the jury for their consideration matters that are relevant to the assessment of the honesty and reliability of a Crown witness. After all, they are the judges of the facts. The Crown Prosecutor was not placing before the jury his own personal opinion. If he had done so, such an opinion would have been irrelevant – see Hughes v R [2015] NSWCCA 330 at [273]; KNP v R (2006) 67 NSWLR 277; [2006] NSWCCA 213 at [53] – but that is not what occurred here.

347. As to the Crown Prosecutor’s cross-examination quoted at [336] above, Huynh’s evidence-in-chief included his TAB and casino winnings. The cross-examination was not about character but directed to the veracity of Huynh’s testimony. Leave of the Court was not required pursuant to s 112 of the Evidence Act. The questions were neither irrelevant nor impermissible. The principles considered in Soto-Sanchez and Stanoevski do not apply in these circumstances.

348. There is merit in Huynh’s complaint about the questions he was asked by the Crown Prosecutor in the passage quoted at [332] above. Huynh should not have been invited to express an opinion as to whether Lamella was lying. As has often been stated, the witness’ opinion is irrelevant. Whether or not Lamella was lying was a matter for the jury: R v Leak [1969] SASR 172 at pp 173–174; Rich at p 169.

349. However, the impact of the Crown Prosecutor’s questions is to be considered in the context of how the trial was conducted prior to Huynh’s evidence, which was given on the 30th day of the trial. Lamella and Valsamakis had been vigorously cross-examined by counsel for both applicants. It would have come as no surprise to the members of the jury that both Huynh and Cranney asserted that Lamella and Valsamakis were lying. This was not a case where there was no direct evidence of an actual motive to lie, or no evidence from which a specific motive to lie could reasonably be inferred: see R v E (1996) 39 NSWLR 450 at [26]; Palmer at [7]–[9]. Both Lamella and Valsamakis had benefited from discounts in their sentences on the condition that they gave evidence. Other than this motive to lie, further reasons for lying were raised. During his directions to the jury, the judge said (SU 24–25):

“There may be all sorts of reasons why false evidence has been given by such a witness and it is not for the accused to establish the reason or reasons why a witness may have been lying. Experience has also shown that once such a witness has given a version to the police implicating an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue. Again you heard Mr Lamella and Mr Valsamakis cross-examined and it was suggested to them that they were in precisely that position.

Finally in relation to the evidence of these witnesses, Mr Lamella and Mr Valsamakis in particular, a number of motives for lying or possibly lying were explored in their cross-examinations and in particular it was suggested they bore some malice or ill feeling towards Mr Cranney. You should bear in mind that there may be unknown motives or motives which cannot be explored in cross-examination which a witness may have for lying.”

350. There was no danger of the Crown Prosecutor’s questions giving rise to illegitimate speculation or reversing the onus of proof. No possibility of real injustice has been demonstrated.

351. Accordingly, I would refuse leave to argue this ground.

Ground 9 (Huynh): A miscarriage of justice occurred as a result of His Honour, the trial judge’s failure to ascertain precisely what use was to be made of the asserted lies

Argument

352. Huynh submitted that the judge did not ascertain from the Crown Prosecutor the use to be made of what was said to be a deliberate lie in his closing address. The contention was that his Honour should have ascertained from the Crown if the asserted lie was going to a consciousness of guilt or to credibility. Huynh referred to authorities which state that the topic of lies must be approached with care. Amongst the authorities cited was Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (“Edwards”); Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 (“Zoneff”) and R v Healy [2008] NSWCCA 229.

353. Huynh argued that the need for an Edwards or Zoneff direction was of fundamental importance to Huynh receiving a fair trial. Huynh accepted that r 4 applied but submitted that leave should be granted.

354. The Crown submitted that the Crown Prosecutor did not make any express submission that the identified lies should be treated as consciousness of guilt. Rather, it was a general submission that clearly went to Huynh’s credibility. The Crown argued that there was no danger that the jury would use the evidence inappropriately as an admission of guilt nor was there a risk of misunderstanding about how the suggested lies could be used. The Crown contended that no miscarriage of justice occurred.

Consideration

355. The focus of Huynh’s complaint is the following passage in the Crown Prosecutor’s address to the jury (Tcpt, 28 May 2015, p 2690):

“In 2011 to 2012 he said to you he had nothing to do with pseudoephedrine. I’d submit to you that that was a deliberate lie. The 9 March visit by the Lebanese men in the early hours of the morning was again a deliberate lie to cover what was plainly evidence in the Crown case which associated him directly with the pseudoephedrine imported…”

356. What was said by the Crown Prosecutor was made in the course of raising issues as to the credibility of Huynh’s evidence. At no time did the Crown rely on what was said to be a deliberate lie as indicating a consciousness of guilt. No direction in relation to lies was sought by Mr Djemal. This provides a strong indication that there was no risk of misunderstanding on the part of the jury about the significance of the possible lie: FP v R [2012] NSWCCA 182 at [148]; Ahmed v R [2012] NSWCCA 260 at [45].

357. The judge was not required to ascertain from the Crown Prosecutor the use to be made of the asserted lie as it was plain that it was relevant to Huynh’s credibility. Furthermore, his Honour was not obliged to give a direction to the jury concerning the asserted lie. As was said in Dhanhoa v R (2003) 217 CLR 1; [2003] HCA 40 by Gleeson CJ and Hayne J at [34]:

“[34] It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction (27). Zoneff was said to be an unusual case (28), and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.”

358. No miscarriage of justice has been demonstrated.

359. Accordingly, I would refuse leave to argue this ground.

Orders

360. The orders that I propose are:

1. Christopher Phillip Cranney’s appeal against conviction is dismissed.

2. Huy Bao Van Huynh’s appeal against conviction is dismissed.

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Decision last updated: 29 September 2017