Keung, Bow, Liu v The Queen - [2008] NSWCCA 193

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Keung, Bow, Liu v The Queen [2008] NSWCCA 193

FILE NUMBER(S):
2007/2781

HEARING DATE(S):
27 May 2008

JUDGMENT DATE:
21 August 2008

PARTIES:
Wing Kwai Keung - Appellant
Wai Kwan Bow - Appellant
Miller Liu - Appellant
Crown - Respondent

JUDGMENT OF:
Giles JA Johnson J Hall J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 05/11/0312

LOWER COURT JUDICIAL OFFICER:
Shadbolt DCJ

LOWER COURT DATE OF DECISION:
2 February 2007 (Sentence)

COUNSEL:
P Boulten SC - Appellant Keung
A Francis - Appellant Liu
S Odgers - Appellant Bow
C O'Donnell - Respondent Crown

SOLICITORS:
Hardin Law - Appellant Keung
Greg Goold - Appellant Bow
Catherine Hunter - Appellant Liu
Commonwealth Director of Public Prosecutions - Respondent Crown

CATCHWORDS:
Drug importation - charge of conspiracy to import - prohibited import "namely ... [MDMA] ... not less than the commercial quantity" - whether prosecution had to prove agreement or intention to import not less than the commercial quantity - or the particular quantity imported - quantity not a necessary ingredient in offence of importation - on construction of s 11.5 Criminal Code, not made ingredient of conspiracy offence - consideration of leave under r 4 Criminal Appeal Rules - jury not erroneously directed to "put aside" certain evidence - conviction appeals dismissed.

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Ansari v The Queen [2007] NSWCCA 204; (2007) 73 A Crim R 112;
Baladjam v R [2008] NSWCCA 85;
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248;
Germakian v R [2007] NSWCCA 373;
Kingswell v The Queen (1985) 159 CLR 264;
The Queen v Meaton (1986) 160 CLR 395;
R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242;
R v Tripodina (1988) 35 A Crim R 183.

TEXTS CITED:

DECISION:
Appeals against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/2781
DC 05/11/0312
GILES JA
JOHNSON J
HALL J
Thursday 21 August 2008

Wing Kwai KEUNG v THE QUEEN
Wai Kwan BOW v THE QUEEN
Miller LIU v THE QUEEN

Judgment

GILES JA: A ship left Rotterdam on 9 May 2004 and arrived in Sydney on 2 June 2004. A shipping container, according to the shipping documents carrying cases of foodstuffs consigned to three businesses in Sydney, was unloaded. On 18 June 2004 Customs and Police officers opened the container, which contained a large number of boxes packed on separate pallets. Thirty seven of the boxes on one of the pallets were found to contain sixty compressed blocks of MDMA powder, individually wrapped in plastic and concealed between layers of wonton pastry. The blocks weighed 342 kilograms and the pure MDMA in them weighed 234.92 kilograms. The powder was sufficient to make over one million ecstasy pills.
The appellants Keung, Bow and Liu were jointly charged that -
“Between 1 February 2004 and 20 June 2004 at Sydney, in the State of New South Wales and elsewhere, Wing Kwai Keung, Wai Kwan Bow and Miller Liu conspired with each other and with divers other persons in Sydney and elsewhere to import into Australia prohibited imports to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of 3,4-Methylenedioxymethamphetamine [“MDMA”] being not less than the commercial quantity applicable to 3,4-Methylenedioxymethamphetamine, contrary to subsection 11.5(1) of the Criminal Code 1995 and section 233B(1)(b) Customs Act 1901.”
Each of the appellants pleaded not guilty to the charge. After a trial before Shadbolt DCJ and a jury extending over many weeks in March, April and May 2006, the jury returned a verdict of guilty in respect of Keung on 30 May 2006 and verdicts of guilty in respect of Bow and Liu on 31 May 2006.
On 2 February 2007 the appellants were sentenced to terms of imprisonment -
(a)in the case of Keung, to imprisonment for life with a non-parole period of 18 years commencing 20 June 2004;
(b)in the case of Bow, to 24 years imprisonment with a non-parole period of 16 years commencing 20 June 2004; and
(c)in the case of Liu, to 21 years imprisonment with a non-parole period of 14 years commencing 20 June 2004.
Each of the appellants appealed against conviction. Keung applied for leave to appeal against sentence. These reasons are concerned with the appeals against conviction.
There was commonality in the grounds of appeal against conviction. Each of the appellants appealed on the grounds, which I will call grounds A and B -
A.“The trial judge erred by failing to direct the jury that the prosecution had to prove that the appellant agreed to import into Australia not less than the commercial quantity of MDMA.”
B.“His Honour erred by failing to direct the jury that the prosecution had to prove that the appellant intended to import a particular quantity of MDMA”.
Keung and Bow appealed on the ground, which I will call ground C -
C.“His Honour erred by directing the jury that they must ‘put to one side’ any transcripts of recorded conversations to which they could ascribe no meaning.’
Background
A description of the Crown and defence cases sufficient for present purposes is as follows.
On the Crown case, in February 2004 Keung spoke from England with one Peter Chen about sale to him of MDMA in tablet form. He thereafter discussed with Chen arrangements for dummy consignees and safe premises to which the shipment could be taken upon arrival in Australia. By May 2004 Keung had returned to Australia. He spoke to Bow about Bow coming to Australia and assisted Bow to get a visa on a false basis, Bow’s role being to pick up the MDMA and take it to the safe premises. Bow arrived in Australia on 4 June 2004, and Keung telephoned and met him and discussed the shipment over the following weeks. Liu came to Australia on 9 June 2004, bringing components of a pill press represented to Customs officers as parts of a meat mincing machine, and discussed with Bow picking up and processing the MDMA. Bow became suspicious that he was being followed, which led to Keung arranging for him to leave Australia promptly; Liu took him to the airport. Keung also attempted to leave Australia. The appellants were arrested before that occurred, and before the boxes in the container were picked up.
The Crown case relied in part on recorded telephone intercepts of conversations from February 2004, particularly between Keung, Bow and Liu shortly before and in June 2004. The conversations were mostly in Cantonese, and on the Crown case the participants used code words and phrases such as referring to MDMA as “candy” or “lollies”, to the safe premises as “the delivery room” and the shipment of MDMA as “the pregnant woman”, to the pill press as “scrap brass” or “the bundle of scrap” and to pill pressing as “hammering”.
The appellants all gave evidence. Keung said that he came to Australia in connection with a false credit cards scheme, and that Bow told him that he (Bow) had been asked by someone else to pick up a shipment of credit card materials for that enterprise. He said that his discussions about lollies and candy were to do with a shipment of Cialis tablets he was trying to sell to Chen, and that other discussions were to do with smuggling antique pictures and birds nests for soup. Bow said that he was asked by a person he declined to name to come to Australia to do false credit cards work, and that Keung told him about a shipment of credit card blanks to be picked up. Liu said that he came to Australia to help Bow do false credit cards work, and was carrying the parts of the pill press en route to America as a favour for a friend not knowing that they were parts of a pill press. It is difficult accurately to summarise the appellants’ explanations, but as a general proposition they attributed their activities and conversations to pursuits other than importation of the MDMA and said that they had nothing to do with it.
Ground A
Ground A turned on the construction of ss 233B and 235 of the Customs Act 1901 (C’th) and s 11.5 of the Criminal Code 1995 (C’th).
Section 233B of the Customs Act relevantly provided -
“233B Special provisions with respect to narcotic goods
(1)          Any person who:
…
(b)          imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies; …
shall be guilty of an offence.
…
(2)The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.
(3)A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235.
(4)          …
“Narcotic goods” was defined in s 4 to mean goods that consist of a narcotic substance, and “narcotic substance” was defined to mean a substance or thing named or described in Column 1 of Schedule VI of the Customs Act or any other substance or thing for the time being declared by the regulations to be a narcotic substance. MDMA was a narcotic substance named in the Schedule.
Section 235 relevantly provided -
“235 Penalties for offences in relation to narcotic goods
(1)...
(2)          Subject to subsections (3) and (7), where:
(a)a person commits an offence against subsection 231(1), section 233AC or subsection 233B(1); and
(b)the offence is an offence that is punishable as provided by this section:
the penalty applicable to the offence is:
(c)          where the Court is satisfied:
(i)that the narcotic goods in relation to which the offence was committed:
(A)are a narcotic substance in respect of which there is a commercial quantity applicable; and
(B)consist of a quantity of that substance that is not less than that commercial quantity; …
(ii)that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance and also that, on a previous occasion a court has:
(A)convicted the person of another offence being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the trafficable quantity that was applicable to that substance when the offence was committed, or
(B)found, without recording a conviction, that the person had committed another such offence;
a fine not exceeding 7,500 penalty units or imprisonment for life, or both or for such period as the Court thinks appropriate.
(d)where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to the substance but is not satisfied as provided in paragraph (c):
(i)if the narcotic substance is a narcotic substance other than cannabis – a fine not exceeding 500 penalty units or imprisonment for a period not exceeding 25 years, or both; or
(ii)if the narcotic substance is cannabis – a fine not exceeding 250 penalty units or imprisonment for a period not exceeding 10 years, or both; or
(e) in any other case – fine not exceeding 20 penalty units or imprisonment for a period not exceeding 2 years or both.
(3)          Where:
(a)the Court is satisfied that the narcotic goods in relation to which an offence referred to in subsection (2) was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that subsection in relation to those narcotic goods; and
(b)the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or commercial dealing in, those narcotic goods;
notwithstanding paragraph 9d) of that subsection, the penalty punishable for the offence is the penalty specified in paragraph (e) of that subsection.
…
(8)For the purposes of subsections (2) and (3), the narcotic substance of which narcotic goods in relation to which an offence has been committed consist is the narcotic substance that is specified in the relevant information, complaint, declaration, claim or indictment as the narcotic substance of which those goods consist.”
The commercial quantity of MDMA was 500 grams. The MDMA in the shipping container was many times the commercial quantity.
Section 11.5 of the Criminal Code relevantly provided -
“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 has 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.
(3) … ”
The Crown accepted, as I understand it, that the trial judge did not direct the jury that the prosecution had to prove that the appellants agreed to import into Australia not less than the commercial quantity of MDMA. I will refer to material parts of the trial judge’s summing-up in connection with ground B. For present purposes, while his Honour’s directions included that MDMA was narcotic goods and the commercial quantity was 500 grams, he did not make a quantity of MDMA not less than the commercial quantity part of the agreement to commit an offence which the Crown had to prove.
The Crown submitted that the appellants should not be permitted to rely on the ground of appeal because no objection had been taken at trial and r 4 of the Criminal Appeal Rules applied; but that the trial judge had not been in error in failing to direct the jury in the manner suggested, and that in any event there had not been a substantial miscarriage of justice and the proviso to s 6 of the Criminal Appeal Act 1912 applied.
No objection had been taken that the summing-up was erroneous in the respect now complained of. The appellants’ legal representatives submitted at trial, without clearly articulating error in the summing-up or a desired redirection, that it had to be proved that the appellants agreed to import drugs rather than something else, and the trial judge responded that he had said that to the jury. That is where it was left. It was not submitted to the trial judge that he should give a direction concerning a quantity of MDMA not less than the commercial quantity.
In Germakian v R [2007] NSWCCA 373 this Court said of rule 4 -
“10 The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside - R v Abusafiah (1991) 24 NSWLR 531 at 536.
11 In R v Tripodina (1988) 35 A Crim R 183 at 191 this court held:
‘it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously.’
12 A failure by counsel to perform this duty may be explicable because:
(a)he overlooked the point or was unaware of the law on the subject;
(b)he deliberately said nothing hoping to gain a tactical advantage at a later stage; or
(c)he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done - Tripodina (at 193 and 191).
13 Generally speaking, leave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings - Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported, at 6-7) - followed in R v DH [2000] NSWCCA 360:
‘unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level’.”
See also R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242 at [32]-[35].
In my opinion, the likely reason why no objection was taken at trial is that the legal representatives did not appreciate the point now taken on appeal. The argument in support of the ground came down to a rather intricate construction of s 11.5(1) of the Criminal Code, one which evolved as counsels’ written submissions were prepared. If it be correct that the jury should have been directed in the manner suggested, then notwithstanding that on the jury’s verdicts the appellants were engaged in a substantial importation from which it may be that the jury could have been satisfied beyond reasonable doubt that they knew that more than 500 grams (pure) of MDMA was involved, their knowledge would have been an important element in the offence with which they were charged which they were entitled to have the jury consider. In my opinion, leave pursuant to rule 4 should be granted.
The submissions on behalf of Bow were adopted by the other appellants. According to the submissions, the statutory formulation of the offence of conspiracy in s 11.5(1) of the Criminal Code had the effect that it was necessary that the appellants had agreed to import not less than the commercial quantity of narcotic goods, and the jury should have been directed accordingly.
For the various substantive offences of importation of narcotic goods, each paragraph in s 233B(1) created one offence and s 235(2) and (3) provided a range of penalties according to the circumstances of aggravation to which those paragraphs referred, the narcotic goods being not less than the applicable commercial quantity being one such circumstance: Kingswell v The Queen (1985) 159 CLR 264; The Queen v Meaton (1986) 160 CLR 359. In TheQueen v Meaton Gibbs CJ and Wilson and Dawson JJ said at 363 -
“In Kingswell v. The Queen the majority of this Court rejected an argument that the Parliament intended that s. 235(2), read together with each paragraph of s. 233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in s. 233B(1) and partly in s. 235(2). It was decided that each paragraph of s. 233B(1) creates a separate offence and that the additional matters stated in s. 235(2) are relevant to the maximum sentence that may be imposed but are not ingredients of the offence. It was also held that ‘the Court’ which is, according to s. 235(2), to be satisfied of the matters mentioned in that sub-section, must be the judge or magistrate and not the jury.”
Their Honours distinguished at 367 between a circumstance of aggravation which converts an offence from a lesser to a greater one and a circumstance of aggravation which renders an accused liable to a penalty greater than could have been imposed if the circumstances did not exist. With a circumstance of aggravation of the latter kind, there was no constitutional impediment to committing it to the determination of the judge rather than the jury.
In Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 Gleeson CJ and Gummow and Hayne JJ in a joint judgment considered that leave should not be granted to re-open Kingswell v The Queen in this respect, as did McHugh and Callinan JJ in separate judgments; McHugh J considered that Kingswell v The Queen had been correctly decided.

In Cheng v The Queen it was held in particular that the quantity of the narcotic goods was not a necessary ingredient in the offence of being knowingly concerned in the importation of narcotic goods (para (d) in s 233B(1)). Gleeson CJ and Gummow and Hayne JJ said at [25] -
“A person may be knowingly concerned in the importation of heroin without knowing the quantity of heroin involved in the importation. In practice, many people who participate in the illegal importation of heroin would not know the quantity imported, and some would not even know the approximate quantity. Such information may be concealed from them, or it may simply be unnecessary for them to have it. The legislation does not provide that such knowledge is a necessary ingredient of the offence created by s 233B(1), or a necessary condition of being liable for sentence under s 235(2)(c) or (d). The language of the statute is to the contrary. On sentencing, the facts raised for the court's consideration of its satisfaction under s 235(2)(c), (d) and (e) are objective facts. It is knowledge about the importation of a prohibited import that exposes a person to conviction under s 233B(1). Knowledge of the quantity involved is not required. On the question of penalty, it is the objective fact as to the quantity of narcotic goods in relation to which the offence was committed which, by virtue of s 235, determines the maximum penalty.”
Although it was not an ingredient of the offence, it was held by the majority in Kingswell v The Queen that where the Crown relied upon circumstances of aggravation described in s 235(2) that should as a matter of practice be charged in the indictment. This was affirmed by the majority in The Queen v Meaton, their Honours saying at 363-4 -
“It was submitted before us that this practice suggested in Kingswell v. The Queen is productive of difficulties, but we do not agree. The inclusion in the indictment of matters of fact, which, although not elements of the offence, render the accused liable to a greater maximum punishment, serves the double purpose of informing the accused of a very important feature of the case made against him and of enabling the jury (in the event of a trial by jury) to decide questions of fact which may very materially affect the maximum punishment to which the accused is exposed. Where a jury determines the guilt of the accused the satisfaction of the court for the purposes of s. 235(2) should be consistent with the finding of the jury. The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold's Criminal Evidence & Practice, 42nd ed. (1985), pars. 4-459—4-461.”
In Cheng v The Queen Gleeson CJ and Gummow and Hayne JJ said at [47] -
“The practice as to the form of an indictment prescribed in Meaton was followed in this case. In accordance with Meaton, and with South Australian practice, the indictment alleged that a commercial quantity of heroin was involved in the importation. The South Australian practice was explained by the Full Court of the Supreme Court of South Australia in R v Hietanen. If, in the present case, there had been a dispute as to the amount of heroin imported then, even though the applicants had entered pleas of guilty, there may have been an issue for determination by a jury. There was no such dispute. (That distinguishes the situation in this case from that in Apprendi where there had been a dispute as to the facts necessary to attract the "enhancement" provision.) No issue was joined on any matter requiring resolution by a jury. In Meaton, the majority explained the various consequences that might flow from the practice to which reference has been made. By reason of the events that occurred, the present case does not provide an occasion for pursuing any problems, theoretical or practical, that might arise in that respect.”
Callinan J said at [284], referring as I understand it to the practice where the jury determined the circumstances of aggravation, that no issue had been raised as to any relevant circumstances of aggravation for resolution by a jury and it was not necessary for the practice referred to and explained in The Queen v Meaton to be followed.
Kingswell v The Queen was a conspiracy case, under the then s 233B(1)(cb), although it is not clear that it was submitted that the aggravating circumstance had to be part of the agreement. On the reasoning in these cases, however, in the same manner as knowledge of the quantity of the narcotic goods concerned was unnecessary for being knowingly concerned in an importation of narcotic goods, agreement on the quantity of narcotic goods concerned was unnecessary for conspiring to import narcotic goods. Knowledge about importation of narcotic goods was sufficient, and agreement to import narcotic goods was sufficient. Subject to s 11.5(1) of the Criminal Code, the inclusion in the indictment in the present case that the MDMA was not less than the applicable commercial quantity, in accordance with the rule of practice, did not make that an element of the offence which the appellants were alleged to have conspired to commit, nor did it make it necessary for the Crown to prove that the conspiracy was to import not less than the commercial quantity of MDMA. Further, and again subject to s 11.5(1) of the Criminal Code, since there was no dispute at the trial as to the quantity of MDMA imported – the appellants did not contest the importation but said it was nothing to do with them – there was no occasion for the jury to determine what the quantity was or the appellants’ knowledge of the quantity of MDMA. That could be material upon sentencing, and would be a matter for the trial judge.
In the appellants’ submissions, s 11.5(1) brought a different position. It made the person who conspired to commit another offence guilty of the offence of conspiracy to commit that offence and “punishable as if the offence to which the conspiracy relates has been committed”. According to the submissions, where the penalty for the offence varied depending upon the circumstances of aggravation this meant that the offence to which the conspiracy related had to be identified by regard also to the circumstances of aggravation, and it followed that the agreement necessary for the conspiracy to commit that offence extended to the relevant circumstances of aggravation – in the present case, that not less than a commercial quantity of MDMA was to be imported.
In my opinion, that was not the effect of the words of s 11.5(1). The “offence to which the conspiracy relates” was, in accordance with Kingswell v The Queen, the offence of importing narcotic goods. When it came to the penalty for the offence of conspiracy to commit that offence, the aggravating circumstances material to the penalty for the substantive offence set the level of punishment for that offence, which was then the punishment for the conspiracy offence. Section 11.5(1) operated consistently with the established position in relation to offences under s 233B of the Customs Act. It was unnecessary to postulate as the offence to which the conspiracy relates the substantive offence plus aggravating circumstances. It was wrong to do so, because there was no such offence.
The elements of the offence of conspiracy under the Criminal Code were analysed by Howie J, with whom Simpson and Hislop JJ agreed, in Ansari v The Queen [2007] NSWCCA 204; (2007) 73 A Crim R 112, and were further considered by Spigelman CJ, with whom James and Howie JJ agreed, in Baladjam v R [2008] NSWCCA 85. The offence was intended to implement the common law save in identified respects: Baladjam v R at [35], referring to Ansari v The Queen at [64]-[66]. Those respects include the threshold of twelve months imprisonment or a fine of 200 penalty units, and that commission of at least one overt act in furtherance of the conspiracy must be proved. Section 11.5(1) is a general provision, not directed to offences under s 233B(1) in particular, but is readily applicable to those offences. The physical element of the statutory offence is found in the words “conspires with another person to commit an offence …”, being the formation of an agreement to commit an offence of the kind described, and the default fault element is the intention to enter into such an agreement: Ansari v The Queen at [63].
Nothing in this calls for enhancement of the offence to which the conspiracy related by inclusion of what have been definitively held to be circumstances of aggravation and not ingredients of the offence. Section 11.5(2) does not require their inclusion in order to prove the conspiracy offence. The offence which the conspirator must have intended would be committed pursuant to the agreement was in the present case the offence of importation of narcotic goods, for which knowledge of the quantity imported was not necessary.
In my opinion, this ground of appeal fails. There is no occasion to consider application of the proviso.
Ground B
The Crown’s position was again that the appellants should not be permitted to rely on the ground of appeal because no objection had been taken at trial and r 4 of the Criminal Appeal Rules applied; but that the trial judge had not been in error in failing to direct the jury in the manner suggested and that in any event there had not been a substantial miscarriage of justice and the proviso to s 6 of the Criminal Appeal Act applied.
I will return to r 4 after consideration of the ground of appeal. As expounded in submissions, it was not well captured in the ground as framed.
The submissions on behalf of Keung were adopted by the other appellants, with a brief addition by counsel for Bow.
Counsel for Keung submitted that the Crown had presented a case “in the particular”, one of conspiracy to import the particular shipment of MDMA; that it was a large quantity of MDMA, well above the commercial quantity; that an essential factual ingredient of the conspiracy as so presented was agreement and intention to import that large quantity of MDMA; and that it was incumbent on the trial judge to direct the jury that they must be satisfied beyond reasonable doubt that the appellants agreed and intended to import the particular large quantity. It was insufficient, it was said, that his Honour had stated the ingredients in this case in terms of agreement and intention to commit an offence being the importation of drugs contrary to s 233B of the Customs Act. It was suggested that this could have left it open to the jury to convict the appellants if they thought there had been an agreement to import a different quantity of MDMA (or even some other drug such as the Cialis), unrelated to the shipment the subject of the Crown case.
Counsel for Bow summarised his colleague’s submissions in the terms that the Crown had particularised a particular importation in respect of which there was a conspiracy, and that the trial judge’s directions were inadequate to bring home to the jury the need to be satisfied beyond reasonable doubt “of the case put by the prosecution as distinct from any kind of theoretical case based on the elements of 11.5 and 223B”.
Counsel referred to parts of the trial judge’s directions concerning the offence of conspiracy. They included -
“Might I turn first of all to conspiracy? Conspiracy is said to occur when a person enters into an agreement to commit an offence. It is the agreement which lies at the core of the offence, not committing the offence itself. People may harbour the same intention to commit the same crime. They may even know of one another’s intention. But it is not until they agree with each other to do it, that it becomes a conspiracy. There must, therefore, be two or more people involved for a conspiracy to have been committed.
The offence is committed at the very moment when there is an agreement to commit the offence nominated in the indictment. As the agreement to commit an offence lies at the heart of conspiracy, it follows that it does not matter if the crime is committed or not. In many conspiracies, it is not. In this one it was alleged by the Crown it was, in fact, committed but it does not have to be committed because it is the agreement, the meeting of minds which lies at the very heart of conspiracy, not the actual doing of the offence.”
In dealing with the elements of conspiracy, his Honour said -
“For a person to be guilty of this offence, he must firstly, enter into an agreement with one or more persons. Secondly, that person must have intended that an offence would be committed as a result of the agreement and the person charged, or at least one other person, must have committed an overt act pursuant to the agreement. So there must be firstly an agreement between one person at least, if not more. That person must have intended an offence would be committed as a result of the agreement and the person charged, or at least one other person, must have committed an overt act pursuant to the agreement.
…
All Commonwealth offences require a physical element and a fault element. The physical element in a conspiracy is the agreement and the fault element lies in the intention. A person, therefore, cannot be found guilty of conspiracy unless you the jury find him guilty of the agreement as I have explained it to you and that intended so to act.”
Moving more specifically to the conspiracy as charged, the trial judge said -
“The crime which it is alleged the accused conspired to commit, is that of the importation into Australia of narcotic goods contrary to s 233B of the Customs Act. The offence is importation of prohibited imports, namely narcotic goods.”
His Honour explained importation, and directed the jury that MDMA was narcotic goods and the commercial quantity was 500 grams.
The trial judge continued -
“Every offence can be broken into elements or ingredients and in this case the elements are four in number. These are the matters which the Crown must prove to your satisfaction beyond reasonable doubt if you are to return a verdict of guilty. They do not have to prove what everything means in the transcripts. The [sic] do not have to prove what every observation meant when recounted by observation squad officers. These are the matters that they have to prove.
1. That each accused entered into an agreement with one other person to commit an offence.
2. At least the accused or one other person must have committed an overt act pursuant to the agreement.
3. Each must have intended that the offence would be committed pursuant to the agreement. That is, that they meant to commit the offence to which they agreed with each other.
4. That the offence specified in the import is the importation of drugs contrary to s 233B of the Customs Act.”
They are the four matters that the Crown must prove to your satisfaction beyond reasonable doubt.”
The submissions on behalf of the appellants went no further into the summing-up. However, the summing-up must be read as a whole, and in the light of the evidence put before the jury and the conduct of the trial.
The Crown’s opening included that it would submit that there was an agreement, to which the appellants were parties, to import into Australia MDMA in the thirty-seven boxes. There was evidence of the shipping of the container and the quantity of MDMA found. As I have said, the importation of the MDMA was not put in issue. The jury can have been in no doubt that the conspiracy of which they had to be satisfied beyond reasonable doubt was a conspiracy to import the MDMA in the shipping container.
Nor did the trial judge leave the jury without assistance beyond his description of conspiracy and its elements. Shortly after the statement of the four matters to be proved beyond reasonable doubt the trial judge said, “I am now going to show you the law and the facts fitted together by outlining the respective cases”. He did so, in a manner of which no complaint was made on appeal. He made many references to importation of ecstasy and the ecstasy, and reminded the jury of many parts of the telephone intercepts which on the Crown case referred to the boxes in the shipping container and to picking up the pallet and boxes and taking them to the safe premises. The trial judge’s outline would have been understood as relating the facts revealed in the evidence to his description of conspiracy and its elements.
Specifically, at the beginning of a summary of the Crown case the trial judge said -
“The Crown puts its case in this way, they say Keung conspired with Chen from 11 February onwards to import ecstasy into this country. In this conspiracy he was joined by Bow on 4 June and Liu on 11 June 2004; in that first conversation price, quantity, payment and Chen’s contribution and the dispatch of one kilogram by way of a sample were all discussed. The goods, MDMA are dispatched on 9 May disguised as dim sim pastry and thirty seven marked boxes on one pallet amongst a total of perhaps a thousand boxes of similar goods in a forty foot refrigerated container.
On 11 May 2004 Keung is in Sydney on a forged passport and travelling within the Commonwealth under the name of Jiang or now the assumed name because he abandoned it in England of Keung. He is joined by Bow on 4 June 2004 and after Bow obtained a visa as the result of a fraudulent letter to the Australia Consul in Hong Kong.
On 11 June 2004 Liu arrives with pill press components and is met by Bow and stays at his hotel in Formule 1. Bow keeps in constant contact with Keung by phone and meeting and travels to Melbourne and the Gold Coast. Keung knows of the container, the contents of which he claims to know nothing, the following, its origin, its quantity, its packaging, its nature of disguise, its number of boxes, the value, the condition under which it is maintained and the shippers name and address.”
This was clearly related to the particular shipment of MDMA. I do not think there was any reasonable possibility of the jury contemplating conviction for importing ecstasy in general or some other narcotic drug, or of the jury convicting the appellant on some theoretical case.
Nor can the appellants’ legal representatives at the trial have perceived what was described in the submissions of counsel for Keung as a “fundamental ground” of “complaint that the trial judge’s directions just provided no guidance at all to the jury about the nature and scope of the conspiracy that was charged and which needed to be proved in the trial”. In my opinion rule 4 should apply, and in any event the ground of appeal is without substance.
Ground C
The passage in the summing-up to which the ground of appeal referred was -
“In a case such as this where intercepted conversations make up a significant part of the crown case it would be necessary to look at the transcript of those intercepts to see firstly what the actual words given their normal meanings say. There may be much to which you can ascribe no meaning which must just be put to one side. The accused have given an account of what they said and what the words mean. In testing this you should look to consistency, that is, if a word such as pills means Sealus [sic] it should have that meaning throughout. If, when given that meaning the interchange is unintelligible or contrary to common sense then it can be rejected but I ask you not to guess and not to speculate what every word in those transcripts means.” (emphasis added)
This passage came early in the summing-up. Its immediate context was as part of the directions concerning the jury’s fact-finding role, commencing with the usual direction that the facts were for the jury and the jury alone and if the jury thought that the judge had a view they should disregard it unless it accorded with their own independently formed view. It was immediately after the guidance upon how they should attend to and evaluate the witnesses and their evidence. It was followed by telling the jury that they could make reasonable inferences but should not guess and that reasonable inferences must be obvious “otherwise you are getting into the area of speculation”. The trial judge went on to give directions as to the Crown’s burden of proof and the standard of proof, to which no objection was taken.

The trial judge later referred again to giving meaning to the telephone intercepts, saying in the passage earlier set out in which he described the four elements in the offence -
“Every offence can be broken into elements or ingredients and in this case the elements are four in number. These are the matters which the Crown must prove to your satisfaction beyond reasonable doubt if you are to return a verdict of guilty. They do not have to prove what everything means in the transcripts. They do no [sic: not] have to prove what every observation meant when recounted by observation squad officers. These are the matters that they have to prove … “ (emphasis added)
The trial judge spent some time on the telephone intercepts. He began his attention to them -
“I now turn to the intercepts and because it is important to both the case of the Crown and the case of the defence, I am afraid I will have to go through these as quickly as I possibly can. What I intend to do with them is this. I need to point out to you what I see they say just by looking at the words, northing more than that.”
His Honour then referred to a considerable number of the intercepts in the manner he had foreshadowed. When the trial judge came to the defence cases, he reminded the jury of the appellants’ evidence explaining their meaning. No complaint was made that he did not sufficiently put the cases of Keung and Bow in this respect.
In this instance, objection was taken to the summing-up. At the conclusion of the summing-up the solicitor for Keung submitted that the direction to put to one side transcripts to which the jury could ascribe no meaning was erroneous “because it’s a matter for a jury to decide whether there’s a meaning, and more importantly if they’re not sure what the meaning is and it raises a doubt, they can take that into account.” The trial judge responded, “No I’m not going to re-charge them on that either”. Counsel for Liu adopted the submission, but accepted that the trial judge had ruled on it. Counsel for Bow did not thereafter adopt the submission, but the Crown did not suggest that r 4 applied in Bow’s appeal.
The submissions on behalf of Keung were adopted with some addition by counsel for Bow. Taken together, the submissions were that the trial judge effectively directed the jury that if they could not work out the meaning of a conversation they should ignore it, and that they should test the appellant’s accounts of what they meant in a consistent manner and, if there was inconsistency, reject them. It was submitted that this put an inappropriate onus on the appellants to establish the meaning of the conversations, and that putting conversations aside risked exclusion from the jury’s consideration of conversations which might have been inconsistent with the Crown case or might have supported the defence cases. Further, it was said, uncertainty as to one conversation could translate into uncertainty about another, so that the uncertain conversation should not be put aside but left for the significance of its uncertainty. And finally it was submitted that the closely following direction about drawing inferences compounded the problem, because it amounted to telling the jury that they had to be satisfied of the meaning of a conversation to a high standard.
These submissions may have gone beyond the ground of appeal, but no objection was taken. In my opinion, the submissions proceeded on an incorrect understanding of the summing-up.
As the trial judge observed, the telephone intercepts were important to both the Crown case and the defence cases. The first two sentences in the passage in question were concerned with the Crown case. They were unexceptional: look for the ordinary meaning first, and then if you cannot give any meaning put it aside – that is, it is of no assistance in the Crown case. The next two and a half sentences in the passage were concerned with the appellants’ evidence. They also were unexceptional: if the meaning cannot be given consistently, or if the meaning given makes no sense or is not common sense, it can be rejected. The last half sentence, referable generally to finding meaning, was a quite appropriate admonition not to speculate.
If the jury could not give any meaning to the words it could not do other than put the conversation aside in the Crown case. The trial judge returned to this when he later said that the Crown did not “have to prove what everything means in the transcripts.” If the jury found inconsistency of meaning or no sense in the meaning suggested by the appellant, they could reject it, which was not putting it aside, and left it for the jury whether to reject it and what other significance, if any, it might have against the Crown case.
The particular passage must be understood as part of the summing-up as a whole. The trial judge went in summarising the Crown case to what appeared from “just looking at the words”, but in summarising the defence cases spoke of the meanings of which the appellants gave evidence. This was in accordance with what I have said of the passage in question, first concerned with the Crown case and then concerned with the appellants’ evidence. To repeat, directions were given as to the Crown’s burden of proof and the standard of proof. I do not think that what the trial judge said would have conveyed to the jury that the appellants bore an onus of establishing meanings of the telephone intercepts, or excluded from the jury as fact-finders that inability to give meaning could be taken into account as casting doubt on the Crown’s proof of its case.
In my opinion, this ground of appeal fails.
The result
In my opinion, the appeals against conviction should be dismissed.
JOHNSON J: I agree with Giles JA.
HALL J: I agree with Giles JA.
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LAST UPDATED:
21 August 2008