Lai v The State of Western Australia

[2012] WASCA 181

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 181

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   1 JUNE 2012

DELIVERED          :   19 SEPTEMBER 2012

FILE NO/S:   CACR 26 of 2012

CACR 77 of 2012

BETWEEN:   THI DIEU LINH LAI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 654 of 2011

Catchwords:

Criminal law - Application for leave to appeal against conviction and sentence - Possession of prohibited drug with intent to sell or supply - Conspiracy with another to possess a prohibited drug with intent to sell or supply - Offering to sell or supply a prohibited drug - Whether trial judge erred in allowing voice recognition evidence - Whether first limb of totality principle infringed - Whether sentence was manifestly excessive - Misuse of Drugs Act 1981 (WA)

Legislation:

Misuse of Drugs Act 1981 (WA)
Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Patti Chong Lawyer

Respondent:     Director of Public Prosecutions (WA)

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

Basilio v The State of Western Australia [2010] WASCA 202

Civello v The State of Western Australia [No 2] [2008] WASCA 163

Dao v The State of Western Australia [2007] WASCA 237

Galbraith v The State of Western Australia [2011] WASCA 70

Mikulic v The State of Western Australia [2011] WASCA 127

Neville v The Queen [2004] WASCA 62; (2004) 145 A Crim R 108

Nguyen v The State of Western Australia [2009] WASCA 81

Penny v The State of Western Australia [2011] WASCA 71

R v Carusi (1997) 92 A Crim R 52

Roffey v The State of Western Australia [2007] WASCA 246

Sinagra‑Brisca v The Queen [2004] WASCA 68

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

Tran v The State of Western Australia [2010] WASCA 38

1. McLURE P:  I agree with Mazza JA.

2. BUSS JA:  I agree with Mazza JA.

3. MAZZA JA:  Before the court are applications for leave to appeal against conviction and sentence.  The appellant was tried before Keen DCJ and a jury in the District Court on an indictment alleging 13 offences under the Misuse of Drugs Act 1981 (WA).

4. On 10 December 2011, the appellant was convicted of two counts of possession of a prohibited drug with intent to sell or supply it to another (counts 1 and 2), one count of conspiring with another to possess a prohibited drug with intent to sell or supply it to another (count 3) and four counts of offering to sell or supply a prohibited drug to another (counts 10 to 13).  She was acquitted of six counts of offering to sell or supply a prohibited drug to another (counts 4 ‑ 9).

5. On 30 January 2012, the appellant was sentenced to a total effective term of 13 years' imprisonment with eligibility for parole, to take effect from 9 October 2011, structured in this way:

Count 1	9 years' imprisonment
Count 2	4 years' imprisonment
Count 3	4 years' imprisonment
Count 10	3 years' imprisonment
Count 11	4 years' imprisonment
Count 12	4 years and 6 months' imprisonment
Count 13	4 years' imprisonment

1. His Honour ordered that the sentences on counts 1 and 3 be served cumulatively.  The remaining sentences were ordered to be served concurrently. 

The State's case at trial

1. The State's case was that the appellant was engaged in the business of selling methylamphetamine and heroin to others in the suburbs of Perth.

2. With respect to counts 1 and 2, it was alleged that the appellant procured a man named Van Thinh Pham to travel to Sydney to purchase methylamphetamine and heroin for her to sell in Perth.  On 23 September 2010, Mr Pham was arrested at Perth Airport, having just disembarked from a flight from Sydney.  He was found to be carrying 498.7 g of methylamphetamine with a purity between 47% and 52% (count 1) and 167 g of heroin with a purity between 64% and 66% (count 2).

3. In respect of count 3, it was alleged that the appellant and a drug dealer in Sydney known as Tuan agreed that Tuan would provide the appellant with a substantial quantity of a prohibited drug, either heroin and/or methylamphetamine, with the intention that she would sell or supply it.

4. Counts 10 to 13 concern various lawfully intercepted telephone and text communications which occurred on four separate days in September 2012.  In respect of each alleged offence, the State's case was that the appellant offered to sell quantities of prohibited drugs to various people.  Count 10 concerned a quantity of what was alleged to be one ounce of either methylamphetamine or heroin.  Count 11 concerned a quantity of 7 g of methylamphetamine.  Count 12 concerned a quantity of one ounce of heroin.  Count 13 concerned a quantity of 1 g of heroin and 7 g of methylamphetamine. 

5. The State's case in respect of counts 1 to 3 relied, in large measure, upon the contents of lawfully intercepted telephone conversations in Vietnamese said to involve the appellant.  These telephone communications were conducted by the person said to be the appellant, using mobile telephones which were not registered in her name and which were not found by the police.  It was crucial to the State's case that it established that the appellant was one of the parties to these conversations. 

6. With respect to counts 10 to 13, they too were conducted using mobile telephones which could not be tied to the appellant.  Insofar as they related to voice conversations, these occurred in English.  The appellant's guilt in respect of each of these alleged offences depended entirely upon the jury being satisfied beyond reasonable doubt that the appellant was the person who offered to sell or supply the prohibited drug. 

7. In relation to all of the intercepted telephone conversations relevant to counts 1, 2 and 3, the person said to be the appellant was referred to in some of the intercepted conversations by one of her given names, Linh.  The State adduced evidence from a Mr Colin Nguyen, a highly experienced Vietnamese interpreter and translator, who listened to many intercepted calls, to the point where he became familiar with the voices he heard, could recognise them and was able to attribute names to them.  He was able to recognise when Linh was speaking and translated what was being said from Vietnamese to English. 

Evidence of Detective First Class Constable Mark Hopkins

1. Detective First Class Constable Mark Hopkins was one of the investigating officers in the case. 

2. In the period between July to the end of September 2010, prior to the appellant's arrest, he listened to literally thousands of lawfully intercepted telephone conversations in English, allegedly involving the appellant, sometimes for up to eight hours per day.  He was also present when the appellant was arrested at the Perth International Airport on 29 September 2010.  On that night and later he spoke to the appellant on a number of occasions, face to face:  ts 41.

3. It did not occur to the prosecution that it would need to identify the appellant's voice in intercepted telephone conversations which were in English until very close to trial.  On 14 November 2011, one week before the scheduled commencement of the trial, the respondent served upon the appellant's solicitors an additional deposition made by Detective Hopkins.  In that deposition, he purported to recognise the voices of the appellant, her daughter Dieu Thui Doan,  and a third woman, Bich‑Hao Jenny Tu.  In particular, he purported to identify the appellant as the person who offered to sell or supply the drugs relevant to counts 10 to 13.  He stated that he was able to do this, based upon a comparison of the voices that he had heard in the thousands of intercepted telephone conversations with the face to face conversations that he had with the appellant and the other women on 29 September 2010 and later. 

4. The appellant objected to Detective Hopkins' proposed evidence.  The appellant's counsel protested about the late disclosure of the evidence, but did not seek an adjournment of the trial for this reason.  As it turned out, the appellant was able to secure the services of an expert, Dr Morrison, the director of the forensic voice comparison laboratory at the University of New South Wales, who ultimately gave evidence at trial, with the purpose of casting doubt on the accuracy of the evidence. 

5. The appellant's trial counsel submitted that his Honour should exclude the evidence in the exercise of his discretion.  Specifically, it was said that its prejudicial effect exceeded its probative value. 

6. On 21 November 2011, on the first scheduled day of the trial, before the jury was empanelled, the learned trial judge conducted a voir dire as to the admissibility of Detective Hopkins' evidence.  Detective Hopkins was the only witness called.  His evidence was to this effect.

7. While listening to the thousands of intercepted conversations, he said he became very familiar with three female voices.  The first of these was sometimes referred to in the conversations as 'Mum' and 'Linda':  ts 39.  He described this voice as sounding 'a lot older and it had a very strong Vietnamese accent and there was also - the English was, sort of, a bit more broken':  ts 42.  Detective Hopkins described the second voice as sounding younger.  He said that she spoke English quite well, although still with a Vietnamese accent.  The third voice he described as 'quite a young voice and she hardly had much of a Vietnamese accent at all':  ts 42.  In cross‑examination, Detective Hopkins said that he was able to recognise the voice of 'Mum' or 'Linda' because 'some of the words sounds like - sound like the squawking of a chicken':  ts 69. 

8. After the appellant's arrest, Detective Hopkins testified that she was in custody 'for several hours':  ts 44.  Although the appellant declined a formal interview, Detective Hopkins said that he spoke to her on and off throughout the time she was in custody, for a total of approximately an hour:  ts 44.  He said that he spoke to her again at Bandyup Women's Prison on 11 November 2010 (ts 47) and then again after she had been released on bail on 19 December 2010, at her house.  On this occasion, both the appellant and her daughter were present.  Detective Hopkins said that they conversed with him for approximately one hour:  ts 48. 

9. Three days later, Detective Hopkins once again spoke to the appellant at her residence.  On this occasion, the appellant, her daughter and Ms Tu were present.  He said that he was there for 'a couple of hours' and that he spoke to the appellant more than with anyone else:  ts 49. 

10. On 28 December 2010, he spoke to the appellant and her daughter for approximately half an hour:  ts 49. 

11. The last occasion on which he spoke to the appellant and her daughter was on 8 June 2011:  ts 50. 

12. In all, Detective Hopkins estimated that he spoke to the appellant face to face for three to four hours:  ts 51. 

13. Detective Hopkins testified that as soon as he spoke to the appellant on 29 September 2010, he recognised her voice as belonging to the person identified in the intercepted telephone conversations as 'Mum' or 'Linda'.  He said that he also recognised the other voices at that time. 

14. In the voir dire, some of the intercepted telephone conversations were played.  These conversations related to, relevantly to this appeal, counts 10, 11, 12 and 13.  Although some of the conversations were very short, Detective Hopkins identified the appellant as one of the speakers in each of the conversations:  ts 54 ‑ 58. 

15. In cross‑examination, Detective Hopkins accepted that, prior to 8 November 2011, he did not know that he would be asked to give voice identification evidence and that, prior to making his deposition, he had not heard the tapes of the intercepted telephone conversations for a year and had not spoken to the appellant for approximately five months:  ts 76 ‑ 77. 

16. The appellant's trial counsel submitted that Detective Hopkins' evidence was unreliable and therefore had very little probative value.  He argued that the prejudicial value of the evidence was high because the jury might overvalue it, having regard to the fact that it came from a police officer:  ts 131. 

17. On 22 November 2011, the learned trial judge overruled the appellant's objection and admitted the proposed evidence from Detective Hopkins.  In effect, his Honour found that the evidence was probative and that its weight was a matter for the jury.  He did not accept that any prejudice arose in the form articulated by defence counsel.  He said that he would give 'a suitable direction and a strong direction' concerning the dangers of voice identification:  ts 134. 

Ground of appeal - appeal against conviction

1. There is one ground of appeal.  No complaint is made as to the admissibility of the evidence of Colin Nguyen.  The appellant does not claim that the trial judge made any errors in his directions to the jury.  Nor does the appellant allege that if the evidence of Detective Hopkins was admissible, the verdicts upon which it is based were unreasonable.

2. The proposed ground of appeal as particularised is as follows:

   The trial judge erred in fact and/or law in allowing the State's proposed evidence of voice recognition ('the evidence'), as disclosed late in the proceedings, to be admitted over objection at trial;

   Particulars

   1.1The veracity of the evidence was tenuous to the extent that it should have been excluded;

   1.2The prejudicial effect of the evidence outweighed its probative value;

   1.3The risk of mistake in identifying the voice as that of the appellant was so great that the evidence should have been excluded;

   1.4There was not enough material of sufficient quality to enable the witness, Officer Mark James Hopkins, to make the comparison such that the evidence should have been excluded.

3. In this court, the appellant's counsel identified his Honour's error as failing to exercise his discretion to exclude Detective Hopkins' evidence on the basis that its prejudicial effect exceeded its probative value:  appeal ts 3.  In essence, the appellant's argument was that the weight that could be given to Detective Hopkins' evidence was, in truth, very limited, but there was a danger that the jury would give it more weight than it merited because it was given by a police officer.  The submission that the weight of the evidence was very limited was based on Detective Hopkins' lack of experience in recognising or identifying voices and that, prior to being alerted to the need to give evidence, he had not spoken to the appellant or heard her voice for some length of time.

4. The existence of the discretion to exclude evidence on the basis that its prejudicial effect exceeds its probative value is undoubted.  How the discretion is to be exercised must be answered having regard to the circumstances of each case.  What is clear is that it is not for a trial judge to determine whether the jury should or should not accept the evidence of a witness.  A trial judge can only exclude the evidence if, taken at its highest, its probative value is outweighed by its prejudicial effect:  R v Carusi (1997) 92 A Crim R 52, 65 ‑ 66 (Hunt CJ at CL, with whom Newman & Ireland JJ agreed).

5. The evidence of Detective Hopkins was plainly relevant, because it went to the crucial issue in counts 10 to 13 of whether it was the appellant who was making the offers to sell or supply the drug in question. 

6. His evidence was in the nature of voice recognition, that is, based on his conversations with the appellant on and after 29 September 2010, he recognised the voice in the relevant telephone conversations as the appellant's.  Evidence of this nature is admissible.  Its admissibility does not depend upon the witness having some particular expertise in the area, nor on whether the speaker's voice is somehow distinctive:  Neville v The Queen [2004] WASCA 62; (2004) 145 A Crim R 108.

7. In the present case, the evidence when taken at its highest could not be said to have possessed, as asserted by the appellant, limited probative value. 

8. Detective Hopkins had ample opportunity in the three months before the appellant's arrest to become familiar with the voice of 'Mum' or 'Linda'.  He was able to identify the general qualities of the voice (older, heavily accented and in broken English), as well as a particular quality (the squawking sounds).  Detective Hopkins said he recognised the voice when he first met the appellant face to face on 29 September 2010.  In all, he spoke to her, face to face, for three or four hours.  On this basis, Detective Hopkins had considerable exposure to the appellant and sufficient opportunity to be able to accurately recognise her voice and compare it to the voice he had heard in telephone intercepts the subject of counts 10 to 13.  It is true that some, but not all, of the conversations relevant to counts 10 to 13 were very short.  Nevertheless, Detective Hopkins said he was still able to recognise the appellant's voice.  Questions as to his credibility and the accuracy and the sufficiency of the evidence were matters for the jury.

9. As to any potential prejudice, I respectfully agree with the learned trial judge that no prejudice arose, having regard to the fact that the evidence in question came from a police officer.  Even if the possibility of such prejudice existed, it was no basis upon which to exclude the evidence. 

10. The learned trial judge did not err in declining to exercise a discretion to exclude the evidence of Detective Hopkins. The evidence was highly probative of the appellant's guilt. There was no relevant prejudice in the giving of the evidence. There is no reasonable prospect of the ground of appeal succeeding. As a result, the appeal against conviction must be taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).

Proposed appeal against sentence

1. The appellant's appeal against sentence was filed approximately six weeks out of time.  Although the explanation for the delay is not particularly persuasive, given that the delay has not been inordinate, I would grant an extension of time.

2. The appellant's first proposed ground of appeal alleges that the total effective sentence of 13 years' imprisonment infringed the first limb of the totality principle.  The second proposed ground alleges that the sentence of 9 years' imprisonment on count 1 was manifestly excessive.

3. The appellant does not allege that the learned trial judge made any express error in sentencing the appellant.  The proposed grounds of appeal allege implied error. 

4. His Honour found that the appellant was a high level dealer in drugs of different kinds for commercial purposes.  He placed her 'in the mid to upper level of the chain of distribution much higher than Mr Pham, the courier': ts 855.  His Honour noted that the appellant had access to substantial sums of money in order to purchase drugs and that she was, in his view, close to the source of the drugs.  He accepted a submission made on behalf of the State that the appellant 'wanted as much drugs and of the highest available quality' as she could obtain:  ts 855.

5. With respect to the sentence his Honour imposed on count 1, his Honour noted that Mr Pham had been sentenced to 7 years' imprisonment after pleading guilty at the earliest opportunity.  He also noted that this sentence had been upheld on appeal:  Pham v The State of Western Australia [2011] WASCA 244. His Honour regarded the appellant as being more culpable than Mr Pham and noted that the appellant did not have the benefit of a plea of guilty: ts 858 ‑ 859.

6. In relation to the appellant's antecedents, she was at the time of sentencing, 55 years old.  She had a relatively minor criminal history with no prior convictions for drug offences.  His Honour accepted that the appellant had a serious gambling addiction, but on the evidence before him he was unable to say whether she was involved in the drug trade to alleviate gambling debts or whether her gambling was successful to the extent of funding the acquisition of the drugs she sold:  ts 856.

1. It is convenient to deal with ground 2 first.  In the light of this court's decision in Pham v The State of Western Australia, this ground has no reasonable prospect of succeeding.  Taking into account the appellant's greater culpability and the absence of the mitigatory effect of a plea of guilty, the imposition of a sentence of 9 years' imprisonment was justified and represented a sound exercise of his Honour's sentencing discretion.

2. With respect to ground 1, the first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety and having regard to all the circumstances of the case, including those referable to the offender personally:  Roffey v The State of Western Australia [2007] WASCA 246 [24], McLure JA, with whom Steytler P and Miller JA agreed.

3. The appellant's written submissions in respect of this ground referred to and summarised at some length the following cases:  The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; Galbraith v The State of Western Australia [2011] WASCA 70; Pham v The State of Western Australia; Basilio v The State of Western Australia [2010] WASCA 202; Civello v The State of Western Australia [No 2] [2008] WASCA 163; Penny v The State of Western Australia [2011] WASCA 71; Sinagra‑Brisca v The Queen [2004] WASCA 68; Mikulic v The State of Western Australia [2011] WASCA 127; Nguyen v The State of Western Australia [2009] WASCA 81; Tran v The State of Western Australia [2010] WASCA 38 and Dao v The State of Western Australia [2007] WASCA 237. The purpose of this exercise was to support an assertion that the total effective sentence of 13 years breached the first limb of the totality principle. There is no need to micro‑analyse each of these cases. Many are immediately distinguishable from the present case because they relate to sentences imposed after pleas of guilty. Further, they are all distinguishable on their facts. Having reviewed the cases cited by the appellant and having regard to the differences between each of them and the case at hand, it has not been demonstrated that the total effective sentence imposed upon this appellant was not broadly comparable.

4. The appellant is a mature woman who willingly engaged in high level drug dealing.  She dealt in both methylamphetamine and heroin.  She had access to large sums of money and she had developed contacts in the Eastern States, who were able, or at least willing, to supply her with large quantities of these drugs.  The appellant showed no remorse for her offending and she did not have the mitigatory benefit of a plea of guilty.  There was little or no mitigation to be found either in the circumstances of the offending or in the appellant's antecedents. 

5. In addition to the offences that the appellant committed in conjunction with Mr Pham, the appellant committed other serious offences including the conspiracy and making offers to sell substantial quantities of up to one ounce of illicit drugs.  Further punishment was justified.

6. Although a sentence of 13 years is long, I do not think that it is reasonably arguable that it offended the first limb of the totality principle.  Having regard to all of the circumstances of the case, including those matters personally referable to the appellant, the total effective sentence was a proper reflection of the appellant's overall criminality.  Ground 1 has no reasonable prospect of succeeding.

7. In my opinion, neither of the proposed grounds of appeal against sentence have reasonable prospects of success.  Accordingly, the appeal is taken to have been dismissed.

Orders

1. In relation to the appeal against sentence, I would grant an extension of time.  In respect of each appeal, I would make the following orders:

   (1)Leave to appeal is refused.

   (2)The appeal is dismissed.