Law v The Queen
[2020] WASCA 196
•24 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAW -v- THE QUEEN [2020] WASCA 196
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 20 JULY 2020 & 12 OCTOBER 2020
DELIVERED : 24 NOVEMBER 2020
FILE NO/S: CACR 236 of 2018
BETWEEN: KAI CHEONG LAW
Appellant
AND
THE QUEEN
Respondent
FILE NO/S: CACR 237 of 2018
BETWEEN: KAI CHEONG LAW
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
For File No: CACR 237 of 2018
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
Citation: R -v- LAW & ORS [2018] WASCSR 123
File Number : INS 62 of 2017
For File No: CACR 236 of 2018
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 62 of 2017
Catchwords:
Criminal law - Drug offences - Importation of a border controlled drug - Appeal against conviction - Whether trial judge erred in leaving to the jury statements made by the accused as lies evidencing guilt - Whether direction as to when lies may be used to evidence guilt was inadequate - Whether jury should have been directed that lies evidencing a consciousness of guilt had to be established beyond reasonable doubt
Criminal law - Drug offences - Appeal against sentence - Whether judge erred in fact in finding that the appellant exercised authority over his co-offenders - Whether sentence manifestly excessive
Legislation:
Criminal Code (Cth), s 11.2A, s 307.1
Result:
Leave to appeal granted in each appeal
Appeals dismissed
Category: B
Representation:
CACR 236 of 2018
Counsel:
| Appellant | : | B W Standish |
| Respondent | : | D Renton & J Johnston |
Solicitors:
| Appellant | : | Paul Catalano |
| Respondent | : | Director of Public Prosecutions (Cth) |
CACR 237 of 2018
Counsel:
| Appellant | : | B W Standish |
| Respondent | : | D Renton & J Johnston |
Solicitors:
| Appellant | : | Paul Catalano |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Corbett v The State of Western Australia [2016] WASCA 97
D'Agostino v The Queen [2019] NSWCCA 259
Davidson v The Queen [2009] NSWCCA 150; (2009) 75 NSWLR 150
Edwards v The Queen (1993) 178 CLR 193
Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310
Hedgeland v The State of Western Australia [2013] WASCA 97
La Fontaine v The Queen (1976) 136 CLR 62
Leung v The State of Western Australia [2020] WASCA 81
Martinez v The Queen [2007] WASCA 143; (2007) 172 A Crim R 389
Newhill v The State of Western Australia [No 2] [2015] WASCA 121
R v Dookheea [2017] HCA 36; (2017) 262 CLR 402
R v Singh [2019] SASCFC 51
Shepherd v The Queen (1990) 170 CLR 573
Smith v The Queen [2007] WASCA 163; (2007) 35 WAR 201
Tang v The Queen [2020] WASCA 194
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
JUDGMENT OF THE COURT:
Summary
On 14 December 2017, the appellant was convicted of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine. On 26 June 2018, the appellant was sentenced to 26 years' imprisonment, with a 16 year non-parole period.
The offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel. The drugs were collected by members of a criminal syndicate at the landing site, and driven to the Perth metropolitan area. 182 kg of methamphetamine from the fishing vessel was subsequently seized by police from two locations at Cannington and Embleton.
The appellant was one of eight persons found on the fishing vessel when it was boarded by Australian Federal Police and Border Force officers on the evening of 1 May 2016, after the drugs had been landed early that morning.
Thirteen accused persons, including the appellant, were charged with and tried for the importation offence. The appellant, one other person on the fishing vessel (Jie Luo) and five persons who were alleged to have operated from land were convicted of the importation offence. Six of the persons on the fishing vessel when it was boarded were acquitted.
The appellant appeals against his conviction on the ground that there was an error of law when a direction of the type discussed in Edwards v The Queen[1] was given to the jury in respect of answers given by the appellant during police interviews which were mere denials (ground 2).
[1] Edwards v The Queen (1993) 178 CLR 193.
Two other grounds (grounds 1 and 3) which raised different issues, were abandoned prior to the hearing of the appeal.[2]
[2] White appeal book p 13, 17.
Ground 4 contended that there was a miscarriage of justice and the verdict of guilty should be set aside because, having regard to the evidence, it was unreasonable and could not be supported. However, during the course of oral argument, counsel for the appellant accepted that ground 4 could not succeed if the statements which were the subject of ground 2 were capable of being lies evidencing the appellant's guilt of the charged offence. Ground 4 was then abandoned at the hearing of the appeal.[3]
[3] Appeal ts 20/7/20, 19 - 20, 23 - 24.
After the initial hearing of the appeal, the appellant applied for leave to add ground 5. That ground contends that the trial judge did not properly direct the jury as to the standard of proof applicable to the proof of the alleged lies and their character as consciousness of guilt lies.
The appellant also appeals against his sentence on two grounds. Ground 1 contends that the trial judge erred in fact in finding that the appellant was in a position of authority over other persons involved in the offence. Ground 2 contends that the sentence was manifestly excessive given the appellant's personal circumstances and the particular hardship arising from his poor health.
The applications for leave to appeal on grounds 2 and 4 in the conviction appeal and on grounds 1 and 2 in the sentence appeal were referred to the hearing of the appeals.
The appellant also requires an extension of time within which to commence both his conviction and sentence appeals. The applications for an extension of time were also referred to the hearing of the appeals.
For the following reasons, the statements which were the subject of the Edwards-type direction were capable of being regarded as lies evidencing guilt. There was no error in the trial judge's directions to the jury about those lies. Therefore, grounds 2 and 5 are not established, and the appeal against conviction must be dismissed. The finding that the appellant was in a position of authority over others on the fishing vessel was supported by the evidence, and the sentence imposed by the trial judge was not manifestly excessive. Therefore, the appeal against sentence must also be dismissed.
Parties' cases at trial
To place into context the statements the Crown relied on as constituting lies evidencing the appellant's guilt of the charged offence, we will summarise the parties' cases at trial, and the manner in which the prosecution case was left to the jury by the trial judge.
Prosecution case as opened
Delivery of the drugs to Australia
The prosecution case was that a tender launched from a fishing vessel landed at least 182 kg of methamphetamine at a location about 30 km south of Port Denison in Western Australia at about 5.30 am on 1 May 2016.[4]
[4] Trial ts 265.
The fishing vessel was observed by Australian Border Force officers on 27 April 2016, about 380 NM off the coast of Western Australia moving in a southerly direction towards Geraldton. A tender was observed at the back of the fishing vessel. A significant number of empty polystyrene boxes were stacked on the deck of the fishing vessel as a disguise, to make it appear to be fishing. There was no fishing equipment on board and the vessel was not set up for a fishing expedition.[5]
[5] Trial ts 264.
Between 5 pm and 7 pm on 30 April 2016, crew members on the fishing vessel loaded not less than 182 kg of methamphetamine in black bags from the vessel onto the tender. The crew launched the tender using a crane (or davit) on the fishing vessel,[6] from a location about 100 NM offshore.[7]
[6] Trial ts 264.
[7] Trial ts 269.
The tender was then piloted by crew members to a remote location on the coast about 30 km south of Port Denison. Waiting at that location were four persons - the appellant's co-accused Yuen Kuan Chong, Fook Choi Ching and Chee Seng Tang, as well as Kian Kee Tan. Mr Tan, who was also referred to as 'Fat Boy', departed Australia before being arrested and was not charged with the offending.[8]
[8] Trial ts 263 - 265.
Fifteen black bags of methamphetamine were deposited on the beach from the tender. Five bags of cooking salt, which had been purchased in Perth, were collected by the tender and were later found on the tender and fishing vessel.[9]
[9] Trial ts 265.
Fourteen of the bags were loaded into the vehicles brought by the shore crew at some time between 5.30 am and 6.15 am on 1 May 2016.[10] The vehicles proceeded to the Wilbinga rest stop, located about 70 km north of the Perth central business district. There the men met the appellant's co-accused Kinboon Yong and Teck Kong Wong. Yong drove a vehicle containing the 14 bags of methamphetamine back to Perth, while Wong drove back in the Hilux.[11]
[10] Trial ts 265 - 266.
[11] Trial ts 271 - 272.
At some point, the men realised that they were missing one of the 15 black bags. A vehicle returned to the landing site and retrieved the bag, which had not been discovered.[12]
[12] Trial ts 266.
At about 12.40 pm on 1 May 2016, Border Force officers observed the tender tracking towards the fishing vessel. The tender rendezvoused with the fishing vessel and was retrieved using the davit, which was not an easy task.[13]
[13] Trial ts 269 - 271.
At about 5.55 pm on 1 May 2016, the fishing vessel was intercepted and boarded by Border Force and Western Australian police force officers. There were eight crew on board, including the appellant and Mr Luo. The vessel was detained and taken back to Geraldton.[14]
[14] Trial ts 272.
Between 2 May and 6 May 2016, the Australian Federal Police executed a search warrant on the vessel and conducted a thorough examination of the vessel. The external appearance of the fishing vessel was of a run-down fishing boat, but the vessel contained quite sophisticated navigation and surveillance equipment which was not entirely consistent with its external appearance. The tender was stowed on board and was assessed to be of fairly high quality and high value, capable of travelling at relatively high speeds. The fishing vessel was carrying about 60 tonnes of fuel. There were various concealed areas on the vessel, including in the fuel tanks themselves.[15]
[15] Trial ts 273.
During the search of the fishing vessel and tender, police located:[16]
(1)Five bags of salt that had been purchased on 26 April 2016 in Perth, of a brand sold exclusively by independent supermarkets in Australia.
(2)Five satellite telephones, GPS devices and electronic data storage cards for navigational equipment relevant to Australia and its waters with stickers bearing the letters AU.
(3)A sealing machine with 13 rolls of clear tape and a packet of large plastic.
(4)Small quantities of methamphetamine were retrieved from within a number of black-coloured nylon bags, of the same type as the bags that were subsequently retrieved from the home of Mr Yong.
(5)An orange-coloured length of rope, of a similar type as that found at Mr Yong's home and parts of which were found at the landing site.
(6)A piece of paper on which was written the GPS coordinates of the landing site, located in the cabin area of the fishing vessel.
[16] Trial ts 273 - 274.
In the absence of any border controlled drugs being located on the fishing vessel, other than the traces in the bags that were found on board, the eight crew members were 'unarrested' and placed in immigration detention.[17]
Location of drugs and interviews with the appellant
[17] Trial ts 274.
The appellant was interviewed by police on 3 May 2016 at Geraldton Police Station. The prosecutor summarised the account given by the appellant at that interview.[18] What was said in that interview is summarised at [39] - [46] below.
[18] Trial ts 309.
Search warrants were executed at various addresses on 20 - 23 May 2016. On 21 May 2016, about 131 kg of methamphetamine (105 kg pure weight) was located at an address in East Cannington that had been leased by Yong. On 23 May 2016, about 51 kg (40 kg pure weight) was located at an address in Embleton occupied by Yokay Chan Chin (who pleaded guilty to an offence and was not tried with the appellant and his co-accused).[19] The prosecution case was that this methamphetamine was landed at the landing site by the tender from the fishing vessel.
[19] Trial ts 281 - 282.
The appellant was again interviewed at Northam Police Station on 24 May 2016. The prosecutor summarised the appellant's account at this interview.[20] What was said in that second interview is summarised at [47] - [56] below.
[20] Trial ts 309 - 310.
The prosecution did not accept that the answers given in the interview were truthful.[21]
The prosecution case against the appellant
[21] Trial ts 309.
The prosecution case against the appellant and other crew of the fishing vessel was that, by 1 May 2016, they were fully aware that this was a venture to deliver a large quantity, in the order of 182 kg, of a border controlled drug to Australia.[22]
[22] Trial ts 336.
The prosecutor alleged that by the time they got 100 NM from the Western Australian coast and the tender was being launched, each of the crew members (including the appellant) must have known:[23]
(1)There was no fishing gear on the fishing vessel and no intention to fish.
(2)The tender was loaded with 15 bags containing a substance weighing in the order of 182 kilograms.
(3)The tender was launched using the crane or davit at the rear of the vessel, and that some of their number piloted that tender at substantial personal risk on open seas over several hours.
(4)The tender returned and was retrieved with some difficulty using that same crane or davit at the rear of the vessel.
(5) The 15 bags containing the substance were no longer on the tender when it came back. They knew that there were five bags of salt which came from land.
The appellant's case as opened
[23] Trial ts 340 - 341.
In his opening, the appellant's counsel adopted what had been said by Ms L Boston, counsel for one of the ultimately acquitted crewmen on the fishing vessel.[24] Ms Boston, in a succinct but effective opening address, had emphasised that it was not enough for the Crown to prove that her client was on the fishing vessel. Ms Boston invited the jury to write her client's name on a piece of paper and to note on that piece of paper everything that they learned about him specifically during the course of the trial. She anticipated that, at the end of the trial, all the jury would know about her client was that he was one of the people on the fishing vessel when it was boarded by police.[25]
[24] Trial ts 349.
[25] Trial ts 346 - 347.
The appellant's counsel said that the appellant was the oldest person on the fishing vessel, had had a stroke and was on medications. He invited the jury to infer that the appellant might not be physically capable of doing a lot of the things alleged by the prosecution to have occurred on the boat, if those things occurred at all.[26]
[26] Trial ts 349 - 350.
The appellant's counsel invited the jury to believe the appellant's account to police, to the effect that he spent the entire time below deck, was totally unaware of anything that was going on above deck and knew nothing about illicit drugs.[27]
Case left to the jury by the trial judge
[27] Trial ts 350.
The appellant was charged with an offence against s 307.1 of the Criminal Code. The Crown appears ultimately to have relied on s 11A to establish the appellant's criminal responsibility for the importation offence.
The elements of the offence alleged against the appellant were left to the jury by the trial judge as follows:
[I]n order to find the [appellant] guilty of the offence of importing a commercial quantity of a border controlled drug, you must be satisfied beyond reasonable doubt that -
1. The accused entered into an agreement with at least one other party before boarding the vessel;
2. The agreement was to import a border controlled drug into Australia;
3. One or more of the parties to the agreement did an act or acts that together amounted to importing a border controlled drug into Australia; and
4. The quantity of the border controlled drug imported into Australia was a commercial quantity.
The trial judge's direction elaborated on the above elements. It is unnecessary to summarise that elaboration for the purposes of determining this appeal. None of the parties complains about this direction as to the elements of the offence.
Alleged lies evidencing guilt
The following is a summary of the appellant's interview by police on 3 and 24 May 2016. The passages relied on by the Crown at trial as lies evidencing guilt are identified and quoted in full below.
Interview on 3 May 2016
The appellant said that he was 57 years old and was born in Hong Kong. He identified his phone as a red Nokia phone that was with him. He said that he had worked as a taxi driver for 25 years, and that was the only job he ever had.[28]
[28] EROI ts Q25 - Q35.
When asked whose boat he was on, the appellant indicated that he did not know. He said 'Somebody just said to go on board, so I go on board'. He said that he had been on the boat for 'half a month' and did not do anything on the boat but eat and sleep. He did not know where the boat was going, and he had not asked why his friend wanted him to go on board. When asked if he remembered being awake and when, the appellant replied that he did not remember.[29]
[29] EROI ts Q53 - Q76.
The Crown relied on the appellant's responses to questions 77 and 79 below as lies evidencing consciousness of guilt:
Q77. Does he remember the boat on the back of the big boat? So does he remember the small boat that's on the back of the big boat going for a drive?
A No, don't remember.
A LAW: (No translated reply)
Q78. What did he say?
A THE INTERPRETER (Answering on behalf of interviewee): Don't remember.
Q79. What does he remember?
A I don't know anything. I don't remember anything. I don't know what you're talking about.
The appellant said that the other people on the boat were fishermen he did not know. He did not know what they were doing and did not know where the boat was going. He did not know whether they were fishing or had caught fish. He slept in a bed below deck at the front of the boat. The appellant repeated that people asked him to go on the boat, so he did. He did not have to do anything on the boat, and just slept and ate.[30]
[30] EROI ts Q80 - Q106.
The appellant said that his friend who told him to go on the boat, Kim Hung Tang, did not give him a date when he would come back.[31] In a later interview, the friend is referred to as Kam Hong Tang. To avoid confusion with the appellant's co-accused Mr Tang we will refer to the appellant's friend as Kim Tang in these reasons. When asked what instructions Kim Tang gave him, the appellant responded:[32]
No. Nothing. You just go board and then you sleep and that's no - no, nothing.
[31] EROI ts Q110 - Q113.
[32] EROI ts Q114.
The Crown relied on the appellant's responses to questions 117, 118 and 119 below as lies evidencing consciousness of guilt:
Q115.Who were the three fishermen that went in the small boat?
ADon't know.
Q116.He doesn't know?
AOh no, he didn't go on the small boat because ... (indistinct) ...
Q117.What time did the small boat go in the water?
AI don't know. I don't know what you're talking about.
Q118.The small boat that's on the back, the three boys went in it. What time was that?
AI don't know what time. I don't know what you are talking about. was sleeping all the time.
Q119.Twenty-four hours a day?
A Yes.
When asked how he went to the toilet, the appellant responded that he just got up and went, and the toilet was near where he was staying.[33]
[33] EROI ts Q120.
The interviewing officer them summed up the appellant's account as follows:[34]
Your friend, TANG Kim Hung, told you to go on a boat. You didn't know where that boat was going. You don't know when the boat was coming back. There were other people on the boat, fishermen, but you'd never met them before. And you slept for twenty-four hours a day the entire time you were on the boat, except to get up and go to the toilet. And you were on that boat for two weeks before Australian law enforcement intercepted you. (interruptions omitted)
The appellant said this was correct and that he had nothing to add.
Interview on 24 May 2016
[34] EROI ts Q124 - Q131.
In this interview the appellant initially said that he received a call from Kim Tang on his mobile phone on 10 April, but then said that he met Kim Tang face to face in the appellant's nursing home. Kim Tang asked the appellant to go aboard the ship and he boarded in Aberdeen. The appellant did not ask Kim Tang why he wanted the appellant to go on board the boat. The appellant was going to be paid HK $100,000 when he got back. The appellant did not know what he was getting paid HK $100,000 for.[35]
[35] EROI ts Q90 - Q104.
The Crown identified the appellant's answer to the following question as a lie evidencing guilt:
Q105.But would - would - did - would Mr LAW have to do something for this money?
AI didn't have to do anything. Just go aboard the boat.
The interviewing officer then summarised what the appellant had told him so far, in the following terms. Answers relied on by the Crown as evidencing guilt of the charged offence are italicised in the quotation below:
Q107. … So Mr TANG [sic] was asked by a friend he knows as Kam Hung TANG to go aboard a boat. He wasn't told why he was going aboard that boat. He doesn't know the address where Mr TANG lives. And he met Mr TANG who asked him to go aboard this boat in a nursing home in Hong Kong. Is that correct?
AYes, that's correct.
Q108.Okay. And then Mr LAW got on the boat in Aberdeen. Is that correct?
AYes, yes.
Q109.And he was going to get a hundred thousand Hong Kong dollars just for sleeping on the boat.
AYes.
Q110.Okay. And he had no job on the boat.
ANo, nothing. Nothing to do.
Q111Okay. And does he know anybody else - did he know anybody else on that boat?
AI don't know any of them.
The appellant was shown a photograph of the fishing vessel and agreed that was the boat he was on. He was shown a photograph of the tender and said he had not seen it before.[36]
[36] EROI ts Q112 - Q132.
The appellant was then asked the following questions, which the Crown relied on as lies evidencing guilt:
Q141. So Mr TANG [sic] I want you go back to - in your mind, I want you to go back into your mind on the night before you were arrested. Okay, the date would have been [30 April 2016]. Now, I want you to tell me what you remember about that night.
AI didn't remember anything. I just eat, sleep and - and go to toilet. I don't know any other things.
Q142.Okay. Can you tell me anything about that small boat on the evening of [30 April 2016]?
AReally, I didn't - I didn't realise there was a small - small boat.
Q143.Is that because the small boat wasn't there?
AI don't know. I'm only down in the bottom of the ship. I don't know anything.
The appellant said there were eight people on the boat including himself. He was not sure whether the others got on board in Hong Kong or China. He was the only person on the boat in Hong Kong. He didn't see anything loaded onto the boat in Hong Kong, and food supplies and water were already there. There were three or four people who did the cooking on the boat and they would cook for him. He did not know who the skipper of the boat was. He did not know whether there were any days when some of the crew members were missing, as he only slept at the bottom of the ship. He did not go fishing, sightseeing or diving or snorkelling on the boat.[37]
[37] EROI ts Q144 - Q160.
The appellant's answer to the following question was relied on by the Crown as a lie evidencing guilt:
Q161Did the boat stop at any time?
ATHE INTERPRETER (Answering on behalf of interviewee): No, don't stop.
The appellant said that he did not know whether anybody put anything onto the boat, or took anything off the boat, after he got on.[38]
[38] EROI ts Q164 - Q165.
The appellant was then asked and answered the following series of questions. The italicised answers in the passage quoted below were relied on by the Crown as lies evidencing guilt:
Q169. Okay. You were on board that ship on the [30 April 2016]?
A Yes, I'm at the bottom.
Q170. Okay, so you're on board that boat from about [10 April 2016 to 1 May 2016] when you were detained.
A Yes.
Q171. Okay. And during that journey of let's say twenty odd days, twenty one days, he didn't see any black bags. Is that correct?
A No, no.
Q172. Okay.
A I didn't see anything.
Q173. And did Mr LAW see the small boat being placed into the water off the back of the main boat on the thirtieth of April?
A No, I didn't see.
Q174. Okay. Did Mr LAW see the boat return to the big boat on the first of May?
A I didn't see any boats.
The appellant then responded to questions indicating that he got on the boat in Hong Kong and had no idea what he was going to do on the boat. During that trip all he did was sleep, eat and go to the toilet. He did not know where he was going and did not have any conversations with anyone on board about where the boat was going. He was going to be paid HK $100,000 for doing nothing on a boat. He never saw a small boat get put into the water off the back of the big boat, and didn't assist or see anyone put any black bags in the small boat. He did not see the small boat return to the big boat, but agreed that he was arrested at about 6 pm on 1 May 2016.[39]
[39] EROI ts Q198 - Q210.
The trial judge's directions about lies
As both remaining grounds of appeal against conviction concern lies alleged by the prosecution to evidence the appellant's guilt, it is convenient to deal with the trial judge's directions on that subject before turning to the grounds.
The trial judge gave a lengthy direction about lies, which it is necessary to consider as a whole. The trial judge began by giving a general direction about lies and the circumstances in which lies could be used as evidence of guilt.[40] The judge then directed the jury as to the elements of the offences with which the various accused were charged.[41] The judge then turned to deal with the evidence on which the Crown relied to establish those elements.[42] His Honour identified the second aspect of that evidence as 'the evidence of what accused said which the Crown relies upon as lies going to consciousness of guilt'.[43]
[40] Trial ts 3291 - 3294.
[41] Trial ts 3294 - 3325.
[42] Trial ts 3325.
[43] Trial ts 3326.
After directing the jury in relation to other matters, the trial judge turned to the Crown's allegations that nine of the accused, including the appellant, told lies from which the jury could infer a consciousness of guilt.[44] After making some general observations,[45] the trial judge identified a list which had been provided to the jury and indicated that the purpose of the list was to indicate, according to the Crown's closing address, the answers on which the Crown relied as evidence of consciousness of guilt. The judge directed the jury that they should not go beyond the answers identified in that list in terms of lies which may evidence guilt.[46]
[44] Trial ts 3363.
[45] Trial ts 3363.
[46] Trial ts 3364.
The trial judge then dealt with the lies alleged by the Crown in relation to each accused, in the order in which they appeared on the indictment, beginning with Yong Chen, one of the ultimately acquitted accused. The alleged lie by that accused was that the tender was always on the fishing vessel and he did not notice anyone leave the main vessel.[47] In the course of directing as to that matter, the trial judge reiterated various aspects of his Honour's general direction, which he said he was not going to repeat in relation to all of the accused.[48]
[47] Trial ts 3364 - 3365.
[48] Trial ts 3367.
The trial judge then gave directions about the lies alleged to have been told by the appellant.[49] His Honour then continued to direct the jury in relation to alleged lies evidencing guilt by other accused.[50]
General Edwards direction
[49] Trial ts 3368 - 3379.
[50] Trial ts 3379 - 3412.
As noted above, the trial judge gave a general Edwards direction in orthodox terms. In our view, the trial judge's direction properly and clearly dealt with all of the elements of an Edwards direction identified by this court in Newhill v The State of Western Australia [No 2].[51] We deal with each element in turn.
(a) the lie must be precisely identified;
[51] Newhill v The State of Western Australia [No 2] [2015] WASCA 121 [70].
As discussed above, the answers said to be lies evidencing guilt were precisely identified in the list provided to the jury and in the trial judge's directions. The jury were directed that they could not go beyond that list in considering whether the appellant's and any other accused's answers were lies evidencing guilt.
(b) the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
The trial judge began his general direction about lies as a deliberate telling of untruths.[52] Later, the trial judge directed the jury:[53]
Secondly, the untruth must be told deliberately by the accused. That is what makes it a lie. I mean, when we talk about lying, we talk about people telling untruths deliberately. Not mistakenly, that's not a lie, that may just be a mistake.
Lawyers sometimes talk of deliberate lies but effectively you're saying the same thing twice because you're saying that the person has deliberately told an untruth that has been told deliberately.
In any event, you must be satisfied that the accused has deliberately attempted to mislead and to conceal the truth. In this context, there is a difference between the mere rejection of a person's account of events and a finding that a person has lied.
(c) the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
[52] Trial ts 3291.
[53] Trial ts 3293.
The trial judge directed the jury that:[54]
Now, in deciding whether a lie was told from a consciousness of guilt, you should bear in mind that there may be many reasons for an accused to tell lies apart from a consciousness of guilt.
For example, it may be the result of panic or fear or a wish to escape an unjust accusation or because the accused wishes to conceal guilt of some other less criminal offence or some moral wrongdoing falling short of criminal behaviour.
It may be to protect some other person or to avoid a consequence unrelated to the alleged offence. When I come to deal with the alleged lies, I will refer to some of the explanations that were suggested by defence counsel during their closing addresses.
(d) the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
[54] Trial ts 3293 - 3294.
After the direction quoted at [65] above, the trial judge directed the jury that:[55]
It follows from the possibility of other reasons for the telling of lies by an accused that you may not take any such lie you find proved into account for the purposes of deciding an issue relevant to the accused's guilt of the offence charged unless, having regard to all of the evidence in the case, you are satisfied that there is no explanation for the accused's lie in relation to that issue other than a consciousness of guilt in respect of the alleged offence. So that has to be the explanation for the lie before you could rely on it as evidence of consciousness of guilt.
(e) the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it;
[55] Trial ts 3294.
In his general direction, the trial judge instructed the jury:[56]
Thirdly, the lie must relate to a material issue. If it concerns some peripheral issue, it cannot form a basis for reasoning that the accused is guilty of the offence. The lie need not be about something that would constitute an element of the offence, and I'll come to talk about the elements shortly. However, it must be about a matter which would connect the accused to the offence.
When I come to deal with the alleged lies in respect of each accused who took part in an interview that is being tendered, I will provide you with examples.
Fourthly, you must be satisfied that the lie was told because of a realisation of guilt and a fear of the truth. Another way in which the courts have described this requirement is that you must be satisfied the lie was told because the accused knew the truth would implicate him in the commission of the offence.
[56] Trial ts 3293.
This direction was reiterated by the trial judge when he introduced the topic of the particular lies said to have been told by various accused:[57]
You should not look at any answer given by an accused in isolation, just as you do not consider any item of circumstantial evidence in isolation or on a piecemeal basis.
You have regard to other answers that the accused may have given, the whole of the interview, if you like, and you have regard to other facts or circumstances that you find proved in assessing the answer that is given by the accused both in terms of whether it is a lie, and secondly, whether it is a lie that gives rise to a consciousness - or the conclusion that it was told from a consciousness of guilt; in other words, that the reason it was told was because the accused realised that the truth would implicate him in the commission of the offence. (emphasis added)
(f) the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
[57] Trial ts 3363.
This task was performed in the handout and the judge's directions summarised at [72] - [74] below.
Directions about acquitted co-accused.
The application of the above principles were reiterated in the trial judge's directions about the lies allegedly told by the first acquitted co‑accused, Yong Chen. After referring to the Crown's submission as to why anyone on board the fishing vessel would be aware of the launch of the tender, the trial judge instructed:[58]
[58] Trial ts 3367 - 3368.
So it submits to you that in the case of Mr Yong Chen - and others who have given this answer but at the moment we're dealing with Yong Chen, and you do need to consider each one separately - that in the case of Yong Chen, you can be satisfied that he was aware that the tender had gone missing simply by inference, by conclusions drawn from the objective facts.
And if you are so satisfied, then he has told an untruth about this. And it has to have been a deliberate untruth because he couldn't be mistaken about whether or not the tender was missing. So that's essentially what the Crown says.
Now, if you accept all of that and you're satisfied that it was a lie, then the next question is, did it concern a material issue? Well, you may think that it was relevant and mattered that the tender left the vessel because it was the means by which the drugs were delivered to the shore.
Now, you have to be satisfied that the lie was told by Mr Chen, this is Yong Chen, because he realised that to tell the truth would be to admit a fact that would point to his guilt of the offence that the police were alleging against him; that is, that he was involved in the importation of a commercial quantity of a border controlled drug into Australia.
Now, I'm not going to repeat this in relation to all of the accused, ladies and gentlemen. But you've watched the interviews and you know - and you've got the transcript, and you know that for each of the accused that was told to them upfront. So that they were told, 'This is why we're questioning you. We believe that there - well, it's in relation to an importation of a border controlled drug into Australia'.
So the starting point the Crown would say to you for each of the accused, but in this case we're dealing with Mr Yong Chen, is that he was aware that that was what he was being questioned about. But you need to be satisfied before you could rely on this as evidence of consciousness of guilt and evidence which tends to establish his guilt of the offence that he knew that it would point to his guilt because he knew that the tender was used to deliver the drugs to the Australian coast.
And you have to be satisfied that there is no other reason for the lie. For instance, it was not told out of panic or fear, or to protect someone else. And those are propositions that were put to you as to why an accused may lie, and I think specifically in respect of Mr Yong Chen, if you find that it is a lie.
Now, if you are satisfied of all of those things, then it is a piece of evidence that is relevant to your consideration of why he was on the boat and what his intention was when he boarded the boat, because ultimately the way in which the case has been put to you and the way in which I have outlined the elements of the offence for you in the handouts that I gave you yesterday requires that you be satisfied what his intention was when he boarded the boat, that it was an intention to be part of this agreement that involved the importation of drugs into Australia.
And that is what ultimately you need to be satisfied - before you can rely on the answer as evidence of guilt - of consciousness of guilt, you have to be satisfied that that is the only conclusion that you can draw from that answer. (emphasis added)
Directions in relation to the appellant
Whether the appellant saw the tender leave the fishing vessel
Shortly after giving the above directions, the trial judge turned to the specific directions as to lies evidencing guilt allegedly told by the appellant. After summarising the gist of the appellant's account in the interviews,[59] and identifying the alleged lies relating to whether the tender left the fishing vessel, the trial judge said:[60]
Now, everything that I've said to you in relation to the similar answer given by Mr Yong Chen applies in relation to [the appellant], so I'm not going to go back over those matters, the things that you would need to be satisfied about in order to be satisfied that it was a lie.
The Crown essentially relies on the same considerations, that anyone who was on that vessel necessarily knew that the tender had left the fishing vessel, and from that it asks you to infer that the only reason that the accused, in this case [the appellant], would lie about that, if you are satisfied it was a lie, is because he knew that to tell the truth would implicate him in the commission of the offence. There was no other explanation for the tender to have left the vessel but for it to be importing border controlled drugs into Australia.
So you need to be satisfied that there was no other explanation than that for the lie before you could rely on it as evidence of consciousness of guilt of the offence that was being alleged against him and with which he is now charged.
The appellant was sleeping all the time
[59] Trial ts 3368 - 3369.
[60] Trial ts 3370. At some points, the transcript records the judge referring to Mr Luo rather than Mr Law, however the context makes it abundantly clear that the references were to the appellant. The appellant's counsel accepted that these references were to Mr Law, and may have been an error in transcription: appeal ts 12/10/20, 19 - 20.
The trial judge identified the question in which the appellant said he was sleeping all the time. He directed:[61]
So it's a matter for you as to whether you think that he was trying to convey the impression that really he could not have been aware of anything that was going on because he was either sleeping, if not all the time then a lot of the time, and otherwise eating and going to the toilet.
So what the Crown alleges in this regard, ladies and gentlemen, and it's a matter for you, is that [the appellant's] claim that he was on that boat only to eat, sleep and go to the toilet and that he was being paid $100,000, which is what he said in the second interview, is so implausible that you can reject it out of hand and you can take it to be a lie, and if it is a lie, then why would he have told that lie, and the Crown asks you to infer that it is indicative of a consciousness of guilt.
In other words, that he knew that the reason he was on that boat was as part of an agreement to import border controlled drugs into Australia and to tell the truth about his role would implicate him in the commission of the offence and therefore he lied and came up with this lie that the Crown says to you is so implausible that you could reject it out of hand.
Reason the appellant was on the fishing vessel
[61] Trial ts 3371.
The trial judge then referred, 'in a similar vein', to the questions directed to why the appellant was on the fishing vessel, and to the appellant's answers to the effect that he did not have to do anything and was being paid HK $100,000 to sleep on the boat.[62]
Whether the fishing vessel stopped
[62] Trial ts 3371.
The trial judge identified the appellant's answer that the boat did not stop at any time, and said:[63]
Now, it seems to me; a matter for you, that the answer in relation to whether the boat stopped at any time is really connected to the answers he's given about not seeing the tender leave the boat, not even being aware of the tender on the back of the boat, because the stopping, of course, of the boat, the Crown submits to you, was necessary for the tender to be launched and to deliver the drugs to the coast. So again, you take into account the same considerations in determining whether if it is a lie then it is a lie that came from a consciousness of guilt in relation to the offence that was being alleged against him.
Whether the appellant saw the black bags
[63] Trial ts 3371 - 3372.
The trial judge identified the answer indicating the appellant did not see any black bags, and said:[64]
Now, in relation to the black bags, the Crown - I don't know that this was developed particularly as far as the basis upon which the Crown says that that is a lie, but I think it is to do with the fact that the hold where the bags were kept appears to have been open and visible. And the black bags that were seen when the vessel was apprehended may have been visible, but I don't know that that necessarily tells you anything about the black bags in which the drugs were transported to the coast, if you are satisfied that they were transported in those black duffel bags that were found at Mr Yong's premises.
It has been put to you, for instance, on behalf of a number of the accused, that you could not exclude the possibility that the black bags containing the plastic bags containing the crystalline substance were already in the tender at the time that the vessel left - well, left Hong Kong, but at least left the area near Malaysia where it seems the bulk of those who were on board got on, but in any event, the point is this. You would need to be satisfied - before you could rely on that as a lie as consciousness of guilt you would need to be satisfied that there is other evidence.
You can't simply reason, 'Well, he's lied about seeing the black bags, because he must have seen the black bags.' Well, you've got to ask yourself, 'Well, on what basis do I draw that conclusion? What evidence is there that he necessarily had to see the black bags?' and you would need to be satisfied, it seems to me, from other evidence, objective evidence, that he necessarily would be aware of the black bags before you could find that that was a lie.
And then if you did find that it was a lie, you would need to consider the questions that I have been indicating for each of these that you need to ask yourselves, and that is whether it is a lie that was told only because the accused realised that to admit knowledge of the black bags would be effectively to admit knowledge of what the enterprise was about and, importantly, that he had entered into an agreement when he came on board, and indeed before he came on board, to import drugs into Australia.
[64] Trial ts 3372 - 3373.
Ground 2 in the conviction appeal: lies evidencing guilt
Appellant's submissions
The appellant submits that the trial judge erred in ruling, over objection from the appellant's trial counsel, that the above answers given by the appellant during his police interviews would be subject to an Edwards direction.
The appellant submits that his answers to the relevant questions were simple denials, denials of knowledge and denials of having to do anything on the fishing vessel. The appellant accepts that denials may be characterised as lies evidencing a consciousness of guilt.[65] However, the appellant contends that his answers 'were simple denials that conveyed no information and not answers which contained false information and which were or could be proven false by other evidence and by way of a logical chain of inference be characterised as lies made out of a consciousness of guilt'. The appellant submits that simple denials of the kind he made cannot amount to Edwards lies and the trial judge was wrong to direct the jury that they could conclude his answers were given out of a consciousness of guilt.[66]
[65] Appellant's Submissions, par 23 citing Edwards 208 - 209; Smith v The Queen [2007] WASCA 163; (2007) 35 WAR 201 [189], [196] - [198] (per Miller JA dissenting) and Martinez v The Queen [2007] WASCA 143; (2007) 172 A Crim R 389 [278] - [285].
[66] Appellant's Submissions, pars 21 - 25.
In oral submissions, the appellant also contended, in effect, that to the extent that his denials contained implicit positive assertions, the evidence was not capable of establishing that the statements were lies or alternatively that they were lies told out of a consciousness of guilt.[67]
General principles
[67] Appeal ts 20/7/20, 12 - 17.
The following summary of the relevant general principles is largely taken from this court's recent decision in Evans v The State of Western Australia.[68]
[68] Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [63] - [71].
It is trite that a lie by an accused, particularly a lie told in the course of giving evidence, can be taken into account by a jury in assessing the credibility of the accused's evidence. The fact that an accused has lied on oath may lead a jury to reject the accused's evidence related to the lie and treat other evidence given by the accused with caution. A lie told out of court, for example in a recorded interview with police, may also affect the jury's assessment of the credibility of other statements made by the accused either in or out of court.
While a lie which merely affects the credit of the accused may lead a jury to reject an accused's statement, it will not positively support the prosecution case. Once the accused's evidence is rejected, it remains necessary for the jury to consider whether the prosecution has established the accused's guilt by evidence which the jury does accept.
A second category of lie is where evidence which suggests a consciousness of guilt is admissible as an implied admission against interest. This kind of lie was considered by the High Court in Edwards. In that case, Deane, Dawson and Gaudron JJ observed that:[69]
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. (emphasis added)
[69] Edwards (208).
The plurality said that the principle applied to lies allegedly told in or out of court,[70] and continued:[71]
It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. (emphasis added)
[70] Edwards (208 - 209).
[71] Edwards (209).
The plurality indicated that was why the lie must be told deliberately, as an inadvertent untruth cannot be indicative of guilt. Their Honours went on to explain the requirement that the lie relate to a material issue in the following terms:[72]
And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'. (emphasis added, citation omitted)
[72] Edwards (209).
The plurality went on to explain the difficulties with a bare direction that 'consciousness of guilt is required', observing:[73]
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or … because of 'a realization of guilt and a fear of the truth'. (emphasis added) (citations omitted)
[73] Edwards (210 ‑ 211).
The use of a lie in this manner involves the drawing of an inference, from post-offence conduct, that the accused committed the charged offence. The inference that the accused committed the charged offence is drawn from the telling of a lie which would not be told unless the accused was guilty of the charged offence. The telling of the lie is therefore circumstantial evidence of the accused's guilt of the charged offence. The telling of the lie may be used, together with such other evidence which the jury accepts, to satisfy the jury, beyond reasonable doubt, that the accused committed the charged offence.[74]
[74] Edwards (210).
Unless the lie is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends, it is not necessary for the jury to be satisfied beyond reasonable doubt that the lie itself establishes guilt.[75] That reflects the ordinary way in which circumstantial evidence is to be used in a criminal trial.[76]
[75] Edwards (210); see also this court's discussion of the standard of proof in respect of alleged lies in Martinez [288] - [295].
[76] Shepherd v The Queen (1990) 170 CLR 573, 579.
Recently, in Leung v The State of Western Australia,[77] Buss P observed:
A post-offence lie told by an accused which suggests a consciousness of guilt will be admissible as an implied admission against interest if, relevantly, the lie is probative of a fact in issue, including a fact in issue which the State seeks to prove, wholly or partly, by inference on the basis of the lie and other circumstantial evidence. A post-offence lie told by an accused which suggests a consciousness of guilt will reveal knowledge of some aspect of the offence charged if the relevant knowledge, either alone or in combination with other evidence, is probative of a fact in issue. (citations omitted)
[77] Leung v The State of Western Australia [2020] WASCA 81 [50].
Similarly, in Leung Mazza and Beech JJA observed:[78]
A lie need not reveal knowledge of the whole of an offence - it is sufficient if it reveals knowledge of some aspect of it, including some circumstance or event connected with it. The principles governing the use of an accused's lies were recently outlined by this court in Evans v The State of Western Australia. As is explained in some detail in that decision, a lie may be used to support an inference as to a material fact, rather than as to knowledge of the whole of an offence. (citations omitted)
[78] Leung [74].
Before a lie can be evidence of guilt, the lie must be demonstrated other than by proof of guilt of the charged offence.[79] A statement by an accused cannot be a lie evidencing guilt if the jury must assume that an accused has committed the charged offence for the purpose of deciding whether the statement is a lie.[80] This court discussed cases recognising the impermissibility of 'bootstraps' reasoning in Corbett v The State of Western Australia.[81]
[79] Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [68] - [70].
[80] R v Sirillas [2006] VSCA 234 [19].
[81] Corbett v The State of Western Australia [2016] WASCA 97 [54] - [59].
In Zoneff v The Queen,[82] the plurality observed:
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged. (citations omitted)
The plurality identified the role for a trial judge as being to determine whether lies are or are not capable of being regarded as lies indicative of a consciousness of guilt.[83] This court has recognised that a trial judge should not direct the jury that they may use evidence of an alleged lie as evidence of guilt if the evidence relied on by the prosecution is not capable of satisfying those preconditions.[84]
Disposition
[82] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [16] - [17].
[83] Zoneff [20].
[84] Hedgeland v The State of Western Australia [2013] WASCA 97 [217]; Corbett [35].
In the present case the prosecution did contend that statements made by the appellant to police constituted lies evidencing guilt. The trial judge required the prosecution to precisely identify the lies it relied on for that purpose and the basis for doing so. Whether the statements were lies evidencing guilt was a question of fact for the jury to determine. An Edwards-type direction will have been required unless the statements on which the Crown relied were not capable of satisfying the preconditions for concluding that a statement is a lie evidencing guilt. However, if the statements were not capable of satisfying those preconditions then the trial judge will have erred in instructing the jury that the statements could be used for that purpose.
We do not accept the appellant's submission that the statements on which the Crown relied were bare denials which were not capable of being regarded as lies evidencing guilt. The positive effect of the statements relied on by the Crown was that:
(1)The appellant was not aware of the tender, or the tender being launched with crew on board and returning or the fishing vessel stopping at any time.
(2)The appellant was paid HK $100,000 to go on the fishing vessel but did not have anything to do and only slept, ate and went to the toilet.
(3)The appellant had not seen the black bags which contained the methamphetamine.
Each of those positive statements could be seen to be lies without making any assumption about the appellant's guilt of the charged offence. The Crown invited the jury to conclude that (1) was a lie on the basis that the size of the tender and the steps involved in its launch and retrieval while the fishing vessel was stopped were such that they could not have been missed by anyone on the vessel. The Crown contended that (2) was inherently implausible and could be rejected as an obvious lie on the terms of the account. The Crown invited the jury to infer that a person on the fishing vessel for two weeks must have been aware of the 15 black bags stored on the fishing vessel, which would show (3) to be a lie.
If the statements referred to at [93] were proven to be lies, it was well open to the jury to infer that the appellant told the lies because the truth would implicate him in the commission of the offence of importing a border controlled drug. That is, the jury could conclude that the lies in (1) and (3) were told because the truth would reveal the appellant's knowledge that the black bags contained a border controlled drug and that the purpose of the trip was to smuggle the contents of the black bags into Australia. The jury could conclude that the lie in (2) was told because the truth would reveal the appellant's role on the vessel and his participation in the importation of the drug.
In our view, each of the statements which were the subject of the trial judge's direction were lies capable of evidencing guilt. In our view, ground 2 is not reasonably arguable, and we would refuse leave to appeal in relation to that ground.
Ground 5 in the conviction appeal: direction as to proof of lies evidencing guilt
Following the initial hearing of the appeal, the appellant sought leave to add the following ground 5 to the conviction appeal:
5.There was a miscarriage of justice, or alternatively, the learned Trial judge did not properly direct the jury as to the standard of proof applicable to the proof of the alleged lies in the Appellant's electronic record of interviews with Police and their character as consciousness of guilt lies.
Appellant's submissions
Submissions filed in support of that ground identify two strands to the appellant's argument in support of this ground.
First, the appellant contends that the trial judge's direction in relation to the appellant's alleged lie about the tender remaining with the fishing vessel failed to deal adequately with the following ordinarily essential aspects of an Edwards direction, identified in Newhill,[85] and discussed earlier in these reasons:
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a)the lie must be precisely identified;
(b)the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
(c)the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
(d)the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
(e)the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
[85] Newhill [70].
Secondly, the appellant submits that the trial judge failed to direct the jury that the lies and their character as admissions against interest had to be proved beyond a reasonable doubt. The appellant submits that, apart from his presence on the boat, there was no evidence other than the alleged Edwards lies linking the appellant to the offence. In these circumstances, the appellant seeks to characterise the alleged Edwards lies as an indispensable link in the chain of reasoning upon which the finding of guilt depended.
Disposition of the first issue: clarity of the direction
The appellant submits that the direction quoted at [71] above was confusing. However, beyond saying that the direction did not deal with each element of an Edwards direction in relation to the particular alleged lies by the appellant, counsel for the appellant was unable to identify the manner in which the direction lacked clarity.[86]
[86] Appeal ts 12/10/20, 17 - 18.
In our view, when the direction is considered against the general directions referred to above, and what was said about Yong Chen, there was no scope for confusion. The trial judge's direction is to be considered as a whole, in the manner in which it might have been understood by the jury listening to it.[87] The jury had heard the trial judge give a detailed general direction about lies and explain how the general principles were to be applied in considering whether an alleged lie by Yong Chen as to whether the tender left the fishing vessel evidenced guilt. There was no need for the trial judge to repeat the same analysis when directing the jury about a lie to the same substantive effect allegedly told by the appellant. Taken as a whole, the trial judge's direction properly informed the jury of the matters referred to in Newhill and as to how those principles were to be applied to the appellant's alleged lies, including the appellant's alleged lie about whether the tender remained with the fishing vessel. There is no merit to this aspect of ground 5.
Disposition of the second issue: standard of proof
[87] La Fontaine v The Queen (1976) 136 CLR 62, 73. See also, to similar effect, Gibbs J at 81, Mason J at 87. The High Court endorsed this approach in R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37].
The critical question in relation to this issue is whether the lies were an indispensable link in the chain of reasoning towards an inference of the appellant's guilt. The appellant submits that, absent evidence of the alleged lies evidencing guilt, it was not open, on the evidence relied on by the Crown, for the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt.[88] The appellant accepts that, if the evidence established that the appellant knew drugs were on the boat, it is a short step to infer that he entered into an agreement of the kind alleged before boarding the fishing vessel. However, he submits that there is no evidence, other than the alleged lies evidencing guilt, capable of demonstrating the appellant was aware that there were border controlled drugs on the fishing vessel.[89]
Other evidence at trial
[88] Appeal ts 12/10/10, 7 - 8.
[89] Appeal ts 12/10/20, 10.
The appellant accepted that the evidence at trial admissible against him was capable of establishing the following facts set out in the respondent's written submissions:[90]
[90] Appeal ts 20/7/20, 21, by reference to Respondent's Submissions, par 17.
a. The Appellant is a Hong Kong citizen and aged 57 as at May 2016. The Appellant also had health issues that required regular medication as at that date.
b. The Appellant was on the large fishing vessel ('the mothership') when it was intercepted around 120 nautical miles off the coast of Australia on 1 May 2016.
c. The mothership was not equipped with any fishing equipment.
d. In the early hours of 1 May 2016, at least 182.4 kg of methamphetamine in 15 black bags was delivered from the mothership by the tender to a remote coastal location South of Port Denison.
e. The methamphetamine had a street value in the vicinity of between around AUD $32m to $182m.
f. At the time of interception, the aft (rear) deck of the mothership contained a high-powered tender vessel (the 'tender'), which occupied a substantial area of the aft deck. Some hours prior to the interception of the mothership, the tender was observed to be travelling on the ocean westward toward the mothership. An interaction between the tender and the mothership was then observed, whereby the tender was retrieved onto the aft deck of the mothership by a crane davit.
g. The process of retrieving the tender occurred in a rough sea state and took around 12 - 15 minutes. Two people were observed to be in the tender at the time of retrieval, and four people on the aft deck of the mothership. The mothership was not moving when the tender was retrieved at around 1 pm on 1 May 2016.
h. The dimensions of the mothership, the dimensions and location of the tender and the crane davit used to winch the tender onto the mothership, were such that the tender and davit were visible on the aft deck of the mothership. The aft deck, tender and davit were visible from the crew quarters.
i. Five black duffle bags were located in the forward hold, adjacent to the crew quarters. Two of those bags contained traces of methamphetamine. The bags were very similar, if not identical, to the 15 black bags retrieved from the residence of a co-accused on 20 May 2016.
j. The Appellant was one of eight men on board the mothership. He was also the oldest.
k. Evidence of GPS coordinates found on the mothership indicate that it had travelled to the point at which it was intercepted from a location in the South China Sea.
l. The Appellant was in possession of a Hong Kong taxi driver license card in his name and with his image at the time of the mothership's interception[.]
m. When all of the men on board the mothership were apprehended and seated on the deck of the mothership awaiting transfer to a Border Force vessel, a number of the men said things to the Appellant. The Appellant was observed to provide short, sharp answers in response.
In addition, the appellant's recorded interviews contained admissions that he was paid HK $100,000 for being on the fishing vessel. This admission remained evidence available for use against the appellant even if the jury rejected the Crown's contention that the appellant's statements about what he was paid to do were lies evidencing guilt. While the Crown's submissions did not specifically advert to the use which could be made of that admission in that circumstance,[91] nothing was said that would preclude the jury from using the evidence in that way.
Inferences capable of being drawn from the other evidence
[91] The Respondent's Memorandum of Transcript References, provided to the court pursuant to directions made at the hearing on 12 October 2020, identify some references in which it was said that the Crown relied on the appellant's admission that he expected to be paid HK $100,000 as having probative value independently of the alleged lies. However, we accept the appellant's supplementary submission dated 23 October 2020, also filed pursuant to the directions made on 12 October 2020, that the passages identified by the Crown either do not address the distinction or only summarise what was said in the recorded interviews.
Given the way that the case was left to the jury, the critical question was whether the jury were satisfied, beyond reasonable doubt, that, before boarding the fishing vessel, the appellant entered into an agreement with at least one other party to import a border controlled drug into Australia. These are the first two elements identified by the trial judge in the passage set out at [36] above. There being no direct evidence of the appellant entering into such an agreement, the question for the jury was whether the only reasonable inference to be drawn from the evidence admissible against the appellant, considered as a whole, was that he had done so.
Evidence other than the appellant's alleged lies evidencing guilt was, in our view, well capable of establishing, as the only reasonable inference, that the appellant was on the boat to supervise the importation operation. The appellant was a 57-year-old Hong Kong taxi driver in very poor health, with no maritime experience or other working experience that might be relevant to the operation of the fishing vessel. He was on a fishing vessel carrying a very large and valuable cargo of methamphetamine, which it may be inferred was stored near the crew quarters where black bags containing traces of methamphetamine were found. He was to be paid a substantial sum for being on the fishing vessel. It was plain to anyone that the fishing vessel was not, and was not capable of, fishing. The other crew members on the vessel appeared to look to the appellant for instruction once the vessel was boarded by the Australian law enforcement authorities. The jury could reasonably conclude that the only reasonable inference to be drawn from all of these facts was that the appellant had been engaged to supervise the importation operation, and knew that border controlled drugs were being imported. There was no evidence suggesting that he was performing, or indeed could perform, any other role. Once the jury had drawn that inference, they could readily infer that the appellant reached an agreement with one or more of the participants in the importation operation to import a border controlled drug into Australia, and that he must have done so before boarding the fishing vessel.
Evidence of the appellant's alleged lies evidencing guilt was strong evidence which provided further support for the drawing of the above inferences and the exclusion of other inferences as reasonable possibilities. However, in our view it cannot be said that the conclusion that the appellant told lies out of consciousness of guilt was an indispensable step to drawing an inference that the appellant had been engaged to supervise the importation operation, knew that border controlled drugs were being imported, and so had reached the agreement alleged by the prosecution.
Need to consider each alleged lie individually
There is a further difficulty facing the appellant's argument. This was not a case where there was a single lie alleged to evidence the appellant's guilt of the charged offence. The trial judge's directions to the jury identified a number of such lies (summarised at [71] - [75] above). As the trial judge directed, the jury had to separately consider whether each lie was told out of a consciousness of guilt. Each of these alleged lies was itself an individual strand in the cable on which the prosecution relied to support an inference of guilt. The strength of the prosecution case may not have been materially different if the jury had been satisfied that all but one of these alleged lies were implied admissions of the appellant's guilt of the charged offence. As such, it cannot be said that any individual alleged lie was an indispensable link in a chain of reasoning towards an inference of the appellant's guilt. There was no basis on which the trial judge was required to direct the jury that any of these individual alleged lies had to be proven beyond reasonable doubt before the jury could convict the appellant.
No error in failing to give a direction
Having regard to the above matters, it would have been confusing and inappropriate, as well as unnecessary, in the present case for the jury to have been told that they needed to be satisfied, beyond reasonable doubt, that the appellant had told a lie evidencing guilt before they could use the lie to support the Crown's case.
In an often-cited passage of the High Court's decision in Shepherd v The Queen,[92] Dawson J observed:
[I]t may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412 - 414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
[92] Shepherd (579).
After discussing the judgments in Chamberlain v The Queen, Dawson J made the following further observations:[93]
Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.
[93] Shepherd (585).
In Davidson v The Queen,[94] Spigelman CJ (James J agreeing) referred to Dawson J's observations, and emphasised that in a case where there are numerous separate facts, of varying degrees of probative value, it could well be confusing to give a direction that particular facts must be found beyond reasonable doubt before an inference of guilt may be drawn.[95] His Honour also criticised an earlier decision of the New South Wales Court of Criminal Appeal which suggested that a direction might be required where a jury might reasonably regard certain facts as indispensable intermediate facts. Spigelman CJ observed:[96]
There is an element of redundancy in this analysis. If it be the case that a jury believes that particular facts are 'indispensable links in their chain of reasoning towards an inference of guilt' then it is unlikely that a jury could come to a conclusion that the offence was established beyond reasonable doubt unless that fact were so established. Indeed, that is so unlikely as to need no specific direction. The very hypothesis, that is, that the jury itself regarded a particular fact as an 'indispensable link' would prevent the jury convicting in view of the clear direction always given about the obligation of the Crown to prove guilt beyond reasonable doubt. There may be circumstances in which a jury needs to be informed of a matter that should be obvious, however, in my opinion the proposition in Merritt at [70] that it is 'usually essential' to give the direction therein referred to is not consistent with subsequent authority
[94] Davidson v The Queen [2009] NSWCCA 150; (2009) 75 NSWLR 150 [7].
[95] Davidson [8].
[96] Davidson [10].
In Davidson, Simpson J (Spigelman CJ and James J agreeing) identified the following test:[97]
Whether a fact on which the Crown relies as part of a circumstantial case is or is not 'indispensable' may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not 'indispensable'. Where the answer is in the negative, the fact is 'indispensable' and the jury should be directed accordingly.
Support for this analysis is found in subsequent judgments of the New South Wales Court of Criminal Appeal and the Full Court of the Supreme Court of South Australia.[98]
[97] Davidson [74].
[98] See the discussion in R v Singh [2019] SASCFC 51 [95] - [101] and D'Agostino v The Queen [2019] NSWCCA 259 [1], [4], [64].
In the present case, the answer to the questions posed in Davidson (which we would regard as a useful tool for analysis rather than as stating a universal test) indicate that the appellant's alleged lies were not an indispensable fact.
Further, in the present case the jury were given standard directions to the effect that that they had to be satisfied beyond reasonable doubt of the accused's guilt and that they could only infer guilt if that inference was the only reasonable inference open on the evidence. In the circumstances of this case, where many facts were relied upon to support the inference of guilt, the direction proposed by the appellant would have risked confusing the jury and encouraging a piecemeal approach to the assessment of the prosecution case. That is, such a direction would have diverted the jury from the task of considering what inferences were to be drawn, and were reasonably open, on the evidence considered as a whole.
We are fortified in our view that a more specific direction was not required or appropriate in the circumstances of this case by the approach taken by those present at the trial. Before directing the jury, the trial judge raised with counsel the question of whether there were any intermediate facts which the jury should be directed had to be established beyond reasonable doubt.[99] None of the trial counsel ever sought such a direction in relation to the various alleged lies evidencing guilt on which the Crown relied. Experienced criminal counsel, all of whom well understood the atmosphere of the trial and detail of the evidence, did not think that the direction now sought by the appellant was called for. Even the appellant's appeal counsel did not seek to advance the argument until the issue was raised by questions from this court at the hearing of the appeal.[100] The course of the trial reinforces our view, on a reading of the transcript, that the direction now sought by the appellant was neither required nor appropriate.
[99] Trial ts 2902 - 2905.
[100] Appeal ts 20/7/20, 17 - 19, 24.
While we would grant leave to appeal on ground 5 based on the second issue raised by that ground, in our view, the ground is not established.
Appeal against sentence
The appeal against sentence is on two grounds.
Ground 1: error of fact
Ground 1 contends that:
There was an error of fact by the sentencing Justice in that the evidence arising at the Trial did not support the finding that the Appellant was in a position of authority over other persons involved in the offence.
The trial judge's finding of that fact was made in the following terms:[101]
In your case, Mr Law, I am satisfied you were engaged to be the supervisor or overseer on the boat. You served no other function on the vessel. In your interviews, you claimed to have slept 24 hours a day, waking only to go to the toilet. By its verdict, the jury rejected that account. It was implausible and did you no credit to suggest you would go on a hazardous trip at sea for about two weeks for no reason, and yet, you would be paid. In your second interview with the police, you said you were to receive HK$100,000 for the trip. I have been told that equates to about AU$16,800.
I am satisfied that you were in a position of trust and had authority over the crew on the vessel. There was some indication of that in the evidence of Operator 19, who said that, when he boarded the vessel, after you and the other persons on the boat had been placed under arrest and gathered together, members of the crew looked to you and said something. In each case, you responded with short sharp answers. Given the nature of the situation and the description given by the officer, I am satisfied that the crew members were turning to you for advice. The clear conclusion from that is that you were a person who was in a position to give advice. Your counsel did not submit otherwise, but he suggested that may simply be a result of you being the oldest person on the vessel. It may be you were simply being asked what was going on. In my opinion, such explanations need to be considered in the context that you lied about your role in your interviews, and the jury was entitled to conclude you did so from a consciousness of guilt. I am satisfied that is why you lied. The truth was that you were the person entrusted with authority over the crew. That is why they turned to you.
It has been said on your behalf that you were not acquainted with any of the persons on the vessel or the land-based participants. For the first time in the sentencing proceedings you have said through your counsel that you were asked to report back to the person who asked you to go on the trip. You were to report if there were any difficulties on the voyage, and in that sense you might be regarded as an overseer, but you did not have control, it was submitted on your behalf. I do not accept that account. As I have said, I am satisfied you were in a position of authority. It would make no sense for you to be required to report to the organiser without also having the authority to give orders to the crew should the need arise.
[101] Sentencing remarks [77] - [79].
In our view, the evidence at trial and the statements made by defence counsel at the sentencing hearing were well capable of supporting the trial judge's finding as to the appellant's supervisory role on the fishing vessel.
The appellant indicated in his recorded interviews that he was a 57‑year-old man in poor health and with no maritime experience (his only job being a taxi driver in Hong Kong). The appellant was on a vessel undertaking a voyage that had no purpose other than delivering methamphetamine to Australia. The question arises as to why he was there?
The appellant's account that he was paid HK $100,000 (equivalent to AUD $16,800) to do nothing but sleep can be readily rejected as an inherently implausible lie. The only role which the appellant might have fulfilled in the criminal enterprise was supervisory. He was not there for maritime or navigational skills which he said he did not have and, given that he was recruited from a nursing home, there was no basis for supposing that the appellant was on the fishing vessel to provide manual labour.
Quite apart from the lies, evidence of the facts referred to at [107] above supported the trial judge's findings. That evidence included the observations of police tactical operators who boarded the fishing vessel and sailed it to Geraldton. Tactical Operator 19 gave evidence that three of the crew were apprehended on or near the bridge of the vessel, three were in or around the engine room and two were in the living quarters. It is uncontroversial that the appellant was referred to as 'male 8' and was found in the living quarters.[102]
[102] Trial ts 407 - 410. See also the evidence of Tactical Operator 39 at trial ts 1880 - 1881 and Tactical Operator 20 at trial ts 1886, exhibit 1.
During the journey to Geraldton, Tactical Operator 19 arranged for the eight apprehended crew to sit in the floor in an open area between the living quarters and the engine room, under police observation.[103] Tactical Operator 19 gave the following evidence in chief as to his observations:[104]
So they were sitting basically in a circle. And as I said, they weren't restrained at all. Conversation generally was minimal; in fact, almost zero. There was no chatter or loud overt conversation between any of the persons that I observed. The one repeated conversation that I did see was an individual person within the group would look around to see if one of us was looking, and then I would observe a very brief, discreet conversation from that person to male number 8. Then I would see male number 8 [through] short, sharp conversation back, and that would be the end of that particular conversation. And then later on I would observe another person within that group look around, discreetly say something to male number 8, and then male number 8 talk back. So no one else spoke to another. It always appeared to be towards male number 8.
Do - do you speak any Chinese - Cantonese or Mandarin?---No, none.
Did any other of your officers speak Cantonese or Mandarin?---No, none.
[103] Trial ts 411.
[104] Trial ts 412.
The appellant's counsel did not challenge this evidence in cross‑examination.[105]
[105] Trial ts 415 - 416.
The appellant's lies told in the recorded interview, and the matters referred to at [107] above (including Tactical Operative 19's unchallenged evidence quoted at [126] above), support the trial judge's conclusion that the only reasonable inference was that the appellant was on the fishing vessel to supervise the importation of the methamphetamine into Australia. The proper inference, which is the only inference reasonably supported by the evidence, was that the appellant must have been exercising some supervisory role in relation to the methamphetamine and the crew of the fishing vessel.
Manifest excess
Ground 2 contends that the sentence imposed on the appellant is manifestly excessive.
In oral submissions, the appellant's counsel indicated that ground 2 attacked only the non-parole period of 16 years, having regard to the appellant's personal circumstances including hardship arising from his poor health and age.[106]
[106] Appeal ts 20/7/20, 32 - 33.
The question of manifest excess (including a description of Mr Law's involvement in the offence and personal circumstances) is summarised in this court's reasons in Tang v The Queen.[107] Customary sentencing standards for serious Commonwealth drugs offences involving amounts well in excess of the threshold of a commercial quantity are also considered in that case.
[107] Tang v The Queen [2020] WASCA 194.
The appellant's role in the present importation was ongoing and significant. The appellant boarded a fishing vessel knowing that it was going to import a commercial quantity of a border controlled drug into Australia. His involvement, requiring his presence on the vessel for over 3 weeks, was not fleeting or impulsive. He had a supervisory role in relation to the importation operation and the crew. He was acting for financial gain. He was knowingly concerned in a complex, well-organised and sophisticated criminal smuggling operation.
The appellant's submissions as to manifest excess focus almost entirely on his health conditions. In relation to that issue, the trial judge's findings were that:[108]
You are not in good health and must take regular medication. You do not expect to survive the inevitably lengthy prison term that will be imposed. That is a sad fact, but it cannot mitigate the sentence to any significant extent. You chose to be involved in this offending at the risk that, if you were caught, you could be facing a significant period of incarceration and that you would suffer because of your ill health. Nevertheless, I take into account that imprisonment will be harder for you.
[108] Sentencing Remarks [138].
The trial judge's finding was that the appellant did not expect to survive his term of imprisonment. Counsel for the Crown submitted,[109] and we accept, that this was a finding as to the appellant's subjective understanding rather than the objective likelihood of the appellant surviving his incarceration. The trial judge recognised that this subjective belief of the appellant would make imprisonment more onerous for him than most other prisoners.
[109] Appeal ts 20/7/20, 37 - 38.
The evidence as to the appellant's medical condition and its prognosis was very limited, as the appellant's counsel in the appeal accepted.[110] The appellant had indicated in his recorded interviews with police that he had had a stroke, had to give up his work as a taxi driver as a consequence and was residing in a nursing home when engaged to go onto the fishing vessel. A schedule of agreed facts tendered at trial recorded that the appellant had in his possession medication to control blood pressure, cholesterol and ulcers, as well as aspirin and a laxative.[111] In his plea in mitigation, the appellant's trial counsel did not refer to any additional or more specific information about the appellant's condition or prognosis.[112] There was no evidence that the appellant suffered from any medical condition that could not be adequately treated in prison.
[110] Appeal ts 34 - 35.
[111] Exhibit 179 (Blue/Green AB 205).
[112] Trial ts 3662 - 3663.
Given the limited information before the trial judge, and in light of the principle that personal considerations are generally subsidiary but not irrelevant sentencing considerations for serious drugs offences, it was open to the trial judge to conclude that matters related to the appellant's health justified only a 1 year reduction in the minimum term of the sentence which would otherwise have been imposed (from 17 down to 16 years). Generally for the reasons explained in Tang v The Queen, we are not satisfied that the sentence imposed on the appellant was otherwise manifestly excessive.
Having regard to all relevant facts and circumstances (including the trial judge's findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) as were relevant and known to the court and all relevant principles relating to the fixing of a non-parole period), we are satisfied that the sentence imposed on the appellant was not unreasonable or plainly unjust.
Orders
The delay in commencing the appeals has been explained. We would grant an extension of time in which to appeal in each appeal.
For the above reasons, we would make the following orders in the appeals.
CACR 236 of 2018 (Appeal against conviction)
(1)The application for an extension of time in which to appeal is granted.
(2)The application for leave to add ground 5 to the grounds of appeal is granted.
(3)Leave to appeal is granted on ground 5.
(4)Leave to appeal is refused on grounds 2 and 4.
(5) The appeal is dismissed.
CACR 237 of 2018 (Appeal against sentence)
(1)The application for an extension of time in which to appeal is granted.
(2)Leave to appeal is granted on grounds 1 and 2.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell24 NOVEMBER 2020
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