Le-Ta v The State of Western Australia
[2020] WASCA 14
•5 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LE-TA -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 14
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 19 DECEMBER 2019
DELIVERED : 5 FEBRUARY 2020
FILE NO/S: CACR 23 of 2019
BETWEEN: TONY LE-TA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
File Number : IND SHE 62 of 2017
Catchwords:
Criminal law - Appeal against conviction - Whether it was open on the evidence to be satisfied of guilt beyond reasonable doubt - Where State case was that the appellant physically delivered the drugs - Whether only reasonable inference was that the appellant physically delivered the drugs
Evidence - Christie discretion - Evidence of messages between other persons admitted under the co-conspirator's rule - Whether any relevant prejudice - Whether prejudice exceeded the probative value of the evidence - Whether decision to admit evidence revealed implied error
Legislation:
Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)(c)
Result:
Appeal upheld
Judgment of conviction set aside
Judgment of acquittal substituted
Category: B
Representation:
Counsel:
| Appellant | : | P Morrissey SC |
| Respondent | : | L M Fox & M M Yeung |
Solicitors:
| Appellant | : | Melasecca Kelly & Zayler Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Fazio v Fazio [2012] WASCA 72
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
G v H [1994] HCA 48; (1994) 181 CLR 387
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
House v The King [1936] HCA 40; (1936) 55 CLR 499
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
May v The State of Western Australia [2018] WASCA 24
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Christie [1914] AC 545
R v Edelsten (1990) 21 NSWLR 542
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Smart v Power [2019] WASCA 106
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
Introduction
On 12 February 2019, the appellant was convicted after trial of one count of supplying just over 20 kg of cocaine to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act). It was common ground at trial that someone supplied a suitcase containing the cocaine to Mr Van Du Nguyen at the Esplanade Hotel in Port Hedland. As will be seen, the State case at trial was very narrowly framed. It was that the appellant himself physically gave the suitcase containing the cocaine to Mr Nguyen. The two primary issues at trial were whether the State had proved beyond reasonable doubt, to the exclusion of any alternative reasonable inference, that: (1) the appellant was the person who physically supplied the suitcase to Mr Nguyen; and (2) in doing so, the appellant knew that the suitcase contained a prohibited drug.[1]
[1] ts 374, 379, 393, 394, 395, 411 - 412.
The appellant appeals against his conviction on three grounds. Two grounds allege that the trial judge should have exercised his discretion to exclude certain evidence on the basis that its prejudicial effect outweighed its probative value. Ground 1 challenges the admission of 'WeChat' messages to which the appellant was not a party. Ground 2 challenges the admission of expert evidence given by an experienced detective that the serial number of a banknote is commonly used as a means of receipt in drug transactions. Ground 3 alleges that the verdict of guilty was unreasonable and unsupported by the evidence. In essence, the appellant repeats his argument at trial, contending that, on the evidence, it was not open to the jury to be satisfied beyond reasonable doubt as to the two issues referred to in [1] above.
For the reasons that follow, we accept the appellant's primary argument on ground 3: it was not open to the jury to be satisfied beyond reasonable doubt that the appellant physically supplied the suitcase to Mr Nguyen. Consequently, the appeal must be upheld, the judgment of conviction set aside and a judgment of acquittal substituted.
The State case
The State case was that: (1) the appellant handed a suitcase containing just over 20 kg of cocaine to Mr Nguyen; and (2) the appellant knew that the suitcase contained a prohibited drug. (It was not part of the State case that the appellant had brought the suitcase to the Esplanade Hotel.) Its case was based on circumstantial evidence, most of which was unchallenged by the defence. The circumstantial evidence comprised observations by surveillance operatives, recordings obtained from the Esplanade Hotel's closed‑circuit television (CCTV) camera system, phone messages, forensic evidence, hotel door access records and evidence from police detectives and hotel staff. The evidence may be summarised as follows.
On 23 May 2017, the appellant arrived in Port Hedland by plane from Melbourne.[2] The flight had been paid for by someone other than the appellant.[3] He travelled by taxi to the Esplanade Hotel and checked in to room 353.[4] From his arrival at the Esplanade Hotel (23 May) to his arrest (28 May), the appellant remained in the confines of the hotel.[5]
[2] ts 162.
[3] ts 342.
[4] ts 164, 249.
[5] ts 162, 164 - 166, 182 - 183, 187, 191 - 192, 195 - 197, 198 - 199, 232.
On 27 May, Mr Nguyen arrived in South Hedland by coach from Perth and checked in to the Landing Resort, which he had booked for the period between 26 and 31 May.[6] On a phone seized from Mr Nguyen after his arrest,[7] police discovered the following exchange of 'WeChat' messages, written in Vietnamese:[8]
[6] ts 255 - 257, 262 - 263; exhibits 9.1, 9.2, 10.1, 10.2.
[7] ts 208.
[8] ts 347 - 348; exhibit 6. Some but not all of the messages had timestamps.
(1)On 27 May, a third person sent a message to Mr Nguyen saying that he was waiting for his friend's reply and would let Mr Nguyen know.
(2)On 28 May at 3.39 am, the third person asked Mr Nguyen to give him his (Mr Nguyen's) serial number so that he (the third person) could pass it on to his friend.
(3)On 28 May at 3.41 am, a 'David Hung' added Mr Nguyen to his contact list.
(4)On 28 May at 3.45 am, Mr Nguyen provided the third person with the serial number E59956580F.
(5)On 28 May at 3.51 am, Mr Nguyen added David Hung to his contact list.
(6)On 28 May, David Hung asked Mr Nguyen to go to the Esplanade Hotel and book a room there. David Hung told Mr Nguyen, 'give me the room number and someone will come to see you'.
(7)On 28 May, Mr Nguyen messaged David Hung with the room number 341.
(8)On 28 May, David Hung told Mr Nguyen he or she would come in 10 minutes.
(9)On 28 May, Mr Nguyen asked for the nationality of the person who would come to see him.
(10)On 28 May, David Hung replied, 'Vietnamese possibly'.
On 28 May at 11.07 am, CCTV footage shows two people, Ms Nadezdha Bratanova and Mr Georgi Stanchev (referred to as 'the Bulgarians'), leaving the Esplanade Hotel.[9] At 1.09 pm, the appellant went to reception and asked the receptionist to extend his stay by two days, paying a cash deposit of $100 to do so.[10] At 1.17 pm, the appellant leaves the screen of the CCTV footage and heads in the direction of the lifts.[11] At 1.20 pm, the Bulgarians return to the hotel and head in the direction of the lifts. Mr Stanchev is clearly seen wheeling a black suitcase behind him.[12] The Bulgarians are not seen again on the CCTV footage.[13]
[9] ts 318, 328; exhibit 24.2.
[10] ts 250, 254, 331; exhibit 24.5.
[11] ts 343; exhibit 24.6.
[12] ts 318, 334; exhibit 24.6.
[13] ts 343.
On 28 May at 4.27 pm, Mr Nguyen, who as noted above was already staying at the Landing Resort, attended the reception desk at the Esplanade Hotel and asked for a room. He was given, and checked in to, room 341.[14] At 4.31 pm, he entered the lifts in the reception area. At that stage, he was only carrying a black shoulder bag; he did not have a suitcase with him.[15]
[14] ts 183 - 187, 250 - 251, 253; exhibits 8.1, 24.7.
[15] ts 185, 187, 194, 344.
On 28 May at 4.48 pm, a surveillance operative observed the appellant leaving room 341 (Mr Nguyen's room) with a small unidentified object in his left hand, walking in the direction of room 353 (the appellant's room).[16]
[16] ts 187 - 189.
The door access records for room 353 record that the appellant's room was opened, using the swipe card, at 4.56 pm.[17]
[17] Exhibit 17.
On 28 May at 5.01 pm, Mr Nguyen returned to the reception desk at the Esplanade Hotel.[18] The receptionist gave evidence that '[Mr Nguyen] said his friend was not at the hotel, so he's checked into the wrong hotel and decided to leave'.[19] At 5.04 pm, the CCTV footage shows that Mr Nguyen went off screen for about a minute.[20] At 5.06 pm, Mr Nguyen left the front doors of the reception area with the black shoulder bag he had brought with him to the hotel. However, he now also had a large dark‑coloured suitcase.[21] He went outside and smoked a cigarette.[22] At 5.09 pm, Mr Nguyen entered a taxi with the suitcase and returned to the Landing Resort.[23] He was arrested shortly afterwards.[24] Inside the suitcase, police found 20.079 kg of cocaine wrapped inside a towel.[25] The cocaine was packaged into 20 individual blocks, each weighing approximately 1 kg. The towel was the same type of towel as that found in the rooms of the Esplanade Hotel, one such towel having gone missing from room 341 (Mr Nguyen's room).[26]
[18] ts 336, 344; exhibit 24.8.
[19] ts 251.
[20] ts 344; exhibit 24.8.
[21] ts 167, 336 - 337; exhibit 24.8.
[22] ts 167, 170, 344.
[23] ts 167 - 168, 170, 193; exhibit 2.
[24] ts 168, 170.
[25] ts 207, 303 - 304, 306 - 307; exhibits 4, 20.
[26] ts 276; exhibit 13.
On 28 May at 5.53 pm, the appellant was arrested in his hotel room (room 353).[27] A subsequent search of the room yielded a USD$1 bill with the serial number E59956580F,[28] being the same serial number that Mr Nguyen had sent the third person in the 'WeChat' messages.
[27] ts 232, 345.
[28] ts 223 - 225.
Detective Sergeant Coen gave evidence, based upon his nine years of experience in investigating matters involving illicit drugs and their distribution in Western Australia, as to the significance of banknote serial numbers. He said that the serial number of a banknote is commonly used as a 'token' for two things: (1) as a receipt that a transaction has occurred; and (2) as a way for two people to identify that they are meant to be dealing with each other.[29] He said that one person would hold the banknote with the serial number on it, and the other person would know what that note's serial number should be.[30] He said that a token of that kind is commonly used in drug and money transactions, so that 'two people can confirm that they are meant to engage in a transaction involving the transfer of drugs and/or money'.[31]
[29] ts 219, 221.
[30] ts 219.
[31] ts 221.
On 29 May at 12.33 am, the appellant engaged in a video record of interview (VROI).[32] He described himself as Canadian with a Vietnamese background and said that he could speak Vietnamese. He said he was in Australia on a six‑month travel visa, visiting a friend in Melbourne he had met through online marketing. He said he came to Port Hedland to meet a girl he had been messaging on Tinder, and that he was planning to surprise her at a modelling competition she had entered that was to take place at the Esplanade Hotel. He said he messaged her over and over when he reached Port Hedland but got no response, so he must have been 'catfished'. He said he paid for his flights and accommodation on his credit card. In relation to the events on 28 May, he said that:
(1) he went downstairs to the hotel bar or restaurant at around 1.00 pm to have lunch;
(2)on the way back to his room after lunch, he talked to the receptionist about extending his stay and, to that end, laid down a $100 cash deposit;
(3)he then returned to his room and, 'right afterwards', rang the receptionist to cancel the extension;
(4)he never left his room between the time he returned to his room from lunch and the time when he was arrested;
(5) he never had contact with another Vietnamese male;
(6)he never went to, or into, room 341; and
(7)he was never in possession of a suitcase matching the one that contained the cocaine.
[32] Exhibit 12.
Evidence was led from the investigating officer that, on review of the CCTV footage from the Esplanade Hotel for that week, the only suitcase matching the description of the one which contained the cocaine was brought in by the Bulgarians at around 1.20 pm on 28 May. The investigating officer gave evidence that the Bulgarians were later convicted for another incident involving the importation of a commercial quantity of prohibited drugs, namely methylamphetamine.[33] As at 28 May, the Bulgarians were not persons of interest in relation to the investigation and were not under surveillance.[34]
[33] ts 298 - 301, 317 - 318.
[34] ts 317.
The appellant was never seen in possession of a suitcase matching the suitcase which contained the cocaine. His DNA was not identified on the USD$1 bill, the suitcase, the towel in which the cocaine was wrapped, or a face towel found on the bed in room 341 after Mr Nguyen checked out.[35] A forensic scientist gave evidence that the absence of DNA does not prove anything, one way or the other, about whether someone touched or did not touch an exhibit.[36]
[35] ts 310, 350 - 353, 355 - 357.
[36] ts 353 - 354.
The State case was that, having regard to all of the evidence, the only reasonable inference was that the appellant physically supplied the suitcase to Mr Nguyen, knowing that it contained a prohibited drug. The prosecutor highlighted the following facts established by the evidence:
(1)another person paid for the appellant's flight to Port Hedland;[37]
[37] ts 376, 400, 402; ts of closings 7.
(2)the appellant remained in the confines of the hotel at all times for the five days preceding Mr Nguyen's arrival;[38]
[38] ts 142, 143, 376, 400; ts of closings 11.
(3)the suitcase must have been supplied to Mr Nguyen at the hotel in the small window of time between 4.31 pm and 5.01 pm;[39]
(4)the suitcase was opened during that 30-minute window and a towel was wrapped around the cocaine inside the suitcase;[40]
(5)the towel wrapped around the cocaine matched the description of the towel missing from room 341, Mr Nguyen's room;[41]
(6)David Hung sent a 'WeChat' message on the day of the supply telling Mr Nguyen that a 'possibly Vietnamese' person would come to see him in his room in 10 minutes;[42]
(7)the appellant admitted that he had a Vietnamese background;[43]
(8)the appellant was seen leaving Mr Nguyen's room during the 30-minute window within which the suitcase must have been supplied to Mr Nguyen;[44]
(9)the appellant left Mr Nguyen's room holding a small unidentified object;[45]
(10)a USD$1 bill was found in the appellant's hotel room with a serial number matching the number Mr Nguyen had provided to the third person in the 'WeChat' message on the day of the supply;[46]
(11)the serial number of a banknote is commonly used in drug and money transactions as a receipt or token;[47] and
(12)the suitcase was seized in Mr Nguyen's possession shortly after the 30-minute window elapsed and found to contain cocaine.[48]
[39] ts 142, 146; ts of closings 11.
[40] ts 376, 400 - 401; ts of closings 3.
[41] ts 148, 376, 400 - 401; ts of closings 3.
[42] ts 380, 399, 400; ts of closings 12.
[43] ts 149, 399; ts of closings 4, 12.
[44] ts 376, 401; ts of closings 3, 4.
[45] ts 380; ts of closings 10.
[46] ts 149, 376, 380, 399 - 400; ts of closings 3.
[47] ts 149, 376, 387, 399 - 400; ts of closings 5 - 6.
[48] ts 147 - 148, 376; ts of closings 3.
In his summing up, the judge explained to the jury, by reference to the 'WeChat' messages, the State case as to how the transaction occurred:[49]
The State say that a number of people were involved in some way in the supply of cocaine to [Mr Nguyen]. David Hung was a facilitator or organiser. The third person is an intermediary. The [appellant] was a middle man who supplied the drug to [Mr Nguyen] after it was delivered to him by someone, in all likelihood the Bulgarians. And that [Mr Nguyen] then received the drug and he was the one who was to take it down to Perth and he's the one who's found in possession of it by police.
The State say that the messages between the third person and [Mr Nguyen] show [that] the third person arranged the receipt code with [Mr Nguyen], must have communicated also with [the appellant] or someone else who then passed the code to [the appellant]. And [the appellant] is then given the dollar bill with the matching serial number by [Mr Nguyen] as a receipt for the drugs.
And [the appellant] can then prove to his associates that he gave the drug to the right person because he has the dollar bill which [defence counsel] said might well be the thing that operative saw - saw in his hands when he was leaving room 341.
The messages between [David] Hung and [Mr Nguyen] show … David Hung arranged the meet telling [Mr Nguyen] to go to The Esplanade and to tell him the room number he booked, which [Mr Nguyen] duly does, room 341. [David] Hung then told [Mr Nguyen] that the person would come in 10 minutes, possibly Vietnamese.
An inference, the State says, that [David] Hung must have been in communication in some way with [the appellant] to tell him when and which room to go to. [The appellant] then went to 341 with the drugs, handed them over. [Mr Nguyen] probably checks them and puts the towel over them and around them, hands over the receipt and [the appellant] is then seen leaving the room via Operative 08.
[49] ts 399 - 400.
The defence case
The appellant did not give or call any evidence. There were two limbs to his case.
The first limb of his case was that, while the jury might be satisfied that he played some role in the supply, the State had not proved beyond reasonable doubt that he was the person who physically and personally supplied the suitcase containing the cocaine to Mr Nguyen.[50] He advanced two reasons as to why this was the case.
[50] ts 155, 380, 395, 402; ts of closings 14 - 16.
First, there was no evidence that the appellant had any contact with the suitcase. He was never seen with it by undercover operatives or the hotel's CCTV cameras, and there was no DNA or other forensic evidence connecting him to it.[51]
[51] ts 155, 402 - 403; ts of closings 14.
Secondly, the State could not exclude the reasonable possibility that the Bulgarians supplied the suitcase to Mr Nguyen. The appellant invited the jury to accept an alternative sequence of events to the State's version. On this alternative version, the appellant leaves room 341 at 4.48 pm with the USD$1 bill in his hand, having identified that Mr Nguyen is the right person to be given something. After communicating with the Bulgarians, or with organisers higher up who then communicate with the Bulgarians, he has fulfilled his job completely. One or both of the Bulgarians, who are convicted drug dealers, then deliver the cocaine to Mr Nguyen. The appellant's case was that this alternative version was consistent with the Bulgarians being trusted with bringing the suitcase into the hotel and with the common-sense idea that the parties would seek to minimise risk by checking that they were dealing with the correct person before delivering the drugs.[52]
[52] ts 380, 395, 403 - 404; ts of closings 15 - 19, 22 - 23.
The second limb of the appellant's case was that, even if the jury were satisfied beyond reasonable doubt as to supply, the State had not proved beyond reasonable doubt that the appellant knew that the suitcase contained a prohibited drug, as distinct from money.[53] He pointed to evidence that even Detective Coen did not know that the suitcase contained drugs; he had to check by sticking his key into a package.[54] He also pointed to Detective Coen's evidence that the use of a dollar bill as a receipt is consistent with the transaction being one concerning money.[55] The appellant submitted that an operation involving a large quantity of drugs would most likely be conducted on a need‑to‑know basis, and that it was reasonably possible that the appellant did not know exactly what it involved.[56]
[53] ts 381, 397, 404; ts of closings 30 - 31.
[54] ts 381, 404; ts of closings 30 - 31. For Detective Coen's evidence, see ts 221.
[55] ts 387, 397; ts of closings 31.
[56] ts 381, 397.
The appellant did not rely at trial on the story he had advanced in his VROI.[57] He accepted that some of what he said was a lie, including his statement that he paid for his flight, and his denials that he met a Vietnamese man and that he had gone to room 341.[58] However, he invited the jury to accept that other parts were true, including his denials that he was involved in the supply and that his DNA would be on the suitcase.[59]
[57] ts 153.
[58] ts 390, 405.
[59] ts 405; ts of closings 31 - 34.
As to the 'WeChat' messages, the appellant's case was that they do not refer to any drugs or money or even an exchange. His case was that the messages are vague and that the most they establish is a receipt code between the third person and the appellant; they do not prove that the appellant supplied anything, and tend to suggest that the Bulgarians were the suppliers.[60]
[60] ts 400; ts of closings 27 - 28.
The trial judge's summing up
None of the grounds of appeal challenges any aspect of the trial judge's summing up. Consequently, it is not necessary to detail the judge's clear and careful summing up.
The judge explained to the jury that there were two critical issues for their determination. First, were they satisfied beyond reasonable doubt that the appellant physically supplied the suitcase containing the cocaine to Mr Nguyen? Secondly, if so, were they satisfied beyond reasonable doubt that, when he did so, the appellant knew that the suitcase contained a prohibited drug?[61] As to the first, the judge told the jury that the State had to prove that the appellant personally physically delivered the suitcase to Mr Nguyen, not that the Bulgarians did it.[62] In that regard, the judge made clear to the jury that, if the appellant was simply the 'receiptor', in the sense that his role was to check the serial number before the Bulgarians handed over the suitcase, then the verdict must be not guilty.[63] The judge further confirmed this in answering a question from the jury, telling the jury that although supply is widely defined, the State had 'nailed its colours to the mast' - the State had to prove that the appellant physically handed over the suitcase to Mr Nguyen.[64] Prior to his Honour answering the question, the prosecutor expressly acknowledged that the State had run its case solely on that basis.[65]
[61] ts 374, 379, 393, 395.
[62] ts 394.
[63] ts 394 - 395.
[64] ts 411 - 412.
[65] ts 410.
Relevantly to ground 1, the judge told the jury that the 'WeChat' messages were part of the circumstantial evidence for the jury to consider in deciding whether the State had proved guilt beyond reasonable doubt. He further told the jury that, in doing so, they should bear in mind that the appellant had been disadvantaged because he was not involved in the messages.[66]
[66] ts 397.
Grounds 1 and 2: admission of evidence in exercise of discretion
Grounds 1 and 2 allege that the judge erred in the exercise of his discretion in allowing the State to adduce evidence, which was otherwise relevant and admissible, of:
(1)the 'WeChat' messages found on Mr Nguyen's phone (ground 1); and
(2)Detective Coen's evidence that the serial number of a banknote is commonly used as a receipt in drug transactions (ground 2).
Ground 1: scope
While the ground of appeal impugns the admission of all of the 'WeChat' messages, the appellant's submissions appear to confine the dispute on appeal to the following messages:[67]
(1)On 28 May, Mr Nguyen messaged David Hung with the room number 341.
(2)On 28 May, David Hung told Mr Nguyen he or she would come in 10 minutes.
(3)On 28 May, Mr Nguyen asked for the nationality of the person who would come to see him.
(4)On 28 May, David Hung replied, 'Vietnamese possibly'.
[67] Appellant's submissions [3] - [4].
While accepting on appeal that they were relevant and admissible under the co-conspirators rule, the appellant contends that these four messages ought to have been excluded in the exercise of the judge's discretion.[68]
Ground 1: the judge's ruling on the 'WeChat' messages
[68] Appellant's submissions [5].
At the start of the trial, the defence objected to the State leading evidence of 'WeChat' messages found on Mr Nguyen's phone.[69] The defence objected to the messages between Mr Nguyen and David Hung on the basis that the messages were not relevant, they were not admissible and they were subject to discretionary exclusion because their prejudicial effect outweighed their probative value.[70] The judge admitted some of the messages; those set out at [6] above.[71] His Honour found that the messages admitted were relevant, they were admissible under the co‑conspirators rule and their probative value exceeded any prejudicial effect.[72]
[69] ts 81 - 94, 116 - 132.
[70] ts 85.
[71] ts 133 - 141.
[72] ts 137 - 138, 139 - 140, 141. As to the co-conspirators rule, see Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1; Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87.
Before the trial judge, in support of the exclusion of the messages under the prejudice‑probative value discretion, the appellant emphasised that he was not a party to the messages and, as the parties to the messages were not giving evidence, he had no opportunity to cross‑examine them. Thus, it was difficult for the appellant to offer alternative explanations for the messages.[73] The judge observed that it would always be the case, when co‑conspirator evidence is admitted, that the parties to the conversation or other acts of the co‑conspirators could not be cross‑examined.[74] Thus, his Honour said, something more than this type of prejudice, which arises whenever this type of evidence is admitted, must be demonstrated.[75] The judge also observed that the loss of the opportunity to cross‑examine is less significant where, as here, the content of the conversation is incontrovertible, in that the messages are produced as exhibits.[76]
[73] ts 86 - 87, 137.
[74] ts 137.
[75] ts 137.
[76] ts 137 - 138.
The judge referred to the messages outlined in [30] above, the admission of which is now challenged, observing that the first two messages were very significant, because room 341 was the room into which Mr Nguyen checked and from where the appellant was seen leaving.[77] The third and the fourth messages were also relevant, because the appellant fits the description given, namely Vietnamese.[78] The judge found that these features of the messages made them highly probative, outweighing any unfair prejudice arising from the inability to cross-examine the parties to the messages.[79]
Ground 1: the appellant's submissions
[77] ts 139.
[78] ts 140.
[79] ts 141.
The appellant submits that the probative value of the messages was low. He submits that they did not support the State case that the appellant supplied the suitcase; rather, they were only 'not inconsistent with' that case.[80] Specifically, he submits that the messages did not support the propositions: (1) that the 'he or she' who would come to see Mr Nguyen would have a suitcase; and (2) that the person who was 'Vietnamese possibly' was the appellant, especially given that it is not clear David Hung was speaking from a position of knowledge.[81] The appellant further submits that the evidence was in a most unsatisfactory form, being a summary of the effect of the Vietnamese language conversation rather than a direct translation.[82]
[80] Appellant's submissions [6].
[81] Appellant's submissions [6].
[82] Appellant's submissions [6].
The appellant submits that there was a prejudice flowing from the inability for the appellant to test the evidence.[83] In written submissions, the appellant further submitted that the prejudicial effect of the messages was such that the evidence might have been regarded by the jury as increasing, by a process of aggregation, the weight of the circumstantial case. However, at the hearing, the appellant appropriately resiled from that submission.[84]
[83] Appellant's submissions [7].
[84] Appeal ts 36.
The appellant submits that the evidence was too vague and weak to support the thesis that the appellant supplied the suitcase, and carried a prejudice which may have impacted upon the jury in a contentious case.[85]
Ground 2: the token evidence
[85] Appellant's submissions [8].
Part-way through the trial, the defence objected to the State leading evidence, through Detective Coen, that the serial number of a banknote is commonly used as a receipt in drug and money transactions.[86] The defence objected to this evidence primarily on the basis that its prejudicial effect outweighed its probative value.[87] The judge admitted the evidence on the basis that, notwithstanding that it was common ground that the banknote was a receipt of some type, it had significance to the State case. That is because Detective Coen's evidence, based on his experience, was that this is a method commonly used as a receipt in relation to drug transactions. In that sense, the use of the banknote fell within the general category of drug indicia.[88]
[86] ts 201 - 203.
[87] ts 202.
[88] ts 203.
The appellant contends that the judge should have excluded Detective Coen's evidence in the exercise of his discretion.
Ground 2: the appellant's submissions
The appellant submits that the issue at trial was whether he delivered the suitcase, not whether this was a drug transaction or whether he collected the token. He submits that, in that situation, the question was whether his collection of the token means or helps establish that he - not the Bulgarians or others - delivered the suitcase.[89]
[89] Appellant's submissions [13].
The appellant submits that Detective Coen's evidence was irrelevant or of limited probative value on the key issue: whether the appellant delivered the suitcase.[90] On the defence case, whatever use the organisers might have made of the token system, the appellant was not shown to have played a suitcase‑delivering role. His collection of the USD$1 bill by no means entailed delivery by him; indeed, his collection of the banknote was 'equally and indistinguishably explicable' by a scenario where the appellant collected the banknote to ensure that Mr Nguyen was the right person for the Bulgarians to approach, which they subsequently did between 4.48 pm and 5.01 pm.[91]
[90] Appellant's submissions [15].
[91] Appellant's submissions [14].
The appellant further submits that the evidence was not relevant to show that the appellant knew or could know that such tokens are commonly used in drug transactions.[92]
[92] Appellant's submissions [15]; appeal ts 37 - 38.
The appellant submits that the evidence had a 'prejudicial sting'. Given that Detective Coen's expertise arose precisely because he was a drug‑investigating detective, the danger was that the jury might regard his general comment about receipts as supporting a conclusion that the appellant specifically, not merely drug‑organisers generally, possessed the note as a receipt because he had delivered the suitcase. The appellant submits that such reasoning would be conjecture, but the danger existed in a circumstantial case such as this.[93]
Grounds 1 and 2: legal principles
[93] Appellant's submissions [16].
A trial judge's discretion to exclude admissible evidence where the prejudicial effect of the evidence outweighs its probative value is well‑established.[94] In this context, it is important to understand what is meant by 'prejudice'. Evidence is not prejudicial simply because it tends to prove the guilt of the accused. Prejudice arises from the risk of improper use of the evidence.[95] Evidence will be prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.[96] As Nettle J has explained, by this discretion, evidence is excluded where and because its capacity to lead a jury to reason correctly to a verdict of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt.[97]
[94] R v Christie [1914] AC 545, 559, 564 - 565; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [62] ‑ [63]; Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [26]; May v The State of Western Australia [2018] WASCA 24 [56].
[95] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [22], [51]; Police v Dunstall [62]; R v Edelsten (1990) 21 NSWLR 542, 553.
[96] Festa [51].
[97] Police v Dunstall [62].
A trial judge's discretion to exclude admissible evidence is a discretionary decision which, on appeal, requires the demonstration of appellable error in accordance with the principles in House v The King.[98]
Ground 1: disposition
[98] House v The King [1936] HCA 40; (1936) 55 CLR 499. See Festa [23], [24], [66]; R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 [121].
The appellant accepts that, not having identified any express error in the judge's reasoning, he faces the high hurdle of establishing implied error in the judge's unfavourable exercise of discretion.[99] In other words, the appellant must establish that the judge's decision was unreasonable or plainly unjust, so that error can be inferred from the outcome.
[99] Appeal ts 37.
The appellant has fallen well short of meeting that high hurdle.
In order for evidence to have probative value, it is not necessary that it, in itself, is sufficient to establish guilt. Nor is it necessary that it is probative of every issue in the trial.
In our respectful view, the judge's reasoning as to both elements of the discretion - the probative value of the evidence and its prejudicial effect - is cogent. In the messages the admission of which is in issue, Mr Nguyen messaged David Hung with the room number 341. After David Hung told Mr Nguyen a person would come to visit him there, he said that he or she would come in 10 minutes. Other evidence established that the appellant was seen leaving room 341 within about 15 minutes of Mr Nguyen's arrival there. These messages were, therefore, highly probative of the appellant's involvement in the handover of the suitcase to Mr Nguyen. While ultimately the critical issue was whether the appellant was proved to have physically delivered the suitcase to Mr Nguyen, at the time at which the judge was making his decision (prior to the opening addresses), the defence had made no admissions that the appellant was involved, in any way, in the handover.
In other messages the admission of which is challenged by ground 1, Mr Nguyen asked for the nationality of the person who would come to see him, to which David Hung replied, 'Vietnamese possibly'. Given that the appellant admitted that he had a Vietnamese background, this provided a further indication of his involvement in the planned handover of the suitcase to Mr Nguyen.
In our view, there was little or no relevant prejudice. The only arguable prejudice lay in the appellant's inability to test the evidence which, as the judge noted,[100] arises in every case where evidence is admitted on the basis of the co‑conspirators rule. Any prejudice of that kind was moderated by:
(1) the fact that the evidence was in the form of text messages with incontrovertible content, so that there was no opportunity to suggest to a party to the conversation that they were mistaken or dishonest about the content of the conversation; and
(2) the judge's direction to the jury that they should bear in mind that the appellant had been disadvantaged because he was not a party to the messages.[101]
[100] ts 137.
[101] ts 397.
For these reasons, we are far from persuaded that the judge's unfavourable exercise of discretion reveals implied error. To the contrary, had we been exercising the discretion, we would have exercised it in the same manner.
We would refuse leave to appeal on ground 1.
Ground 2: disposition
Again, no express error having been identified by the appellant, the appellant must establish that the judge's exercise of discretion reveals implied error. Again, for the reasons that follow, we are far from persuaded that that is so.
The probative value of this evidence must be evaluated in the context of the evidence as a whole. That is particularly so given that the State case was circumstantial.
Other evidence established that the appellant was found with a US$1 bill with the serial number matching the serial number identified by Mr Nguyen in one of the 'WeChat' messages. In that context, Detective Coen's evidence that the serial numbers of banknotes are commonly used as receipts, and tokens for identification, had substantial probative value. On the State case, it was one of the many 'strands in the cable' that together proved guilt beyond reasonable doubt. Whether this evidence, together with the other evidence on which the State relied, was ultimately sufficient to prove beyond reasonable doubt delivery by the appellant is not the test for present purposes.
Again, there is room for doubt that the prejudice to which the appellant points is relevant prejudice, in the sense of being something other than the tendency of the evidence to prove the appellant's guilt. In any case, in our view, the judge's decision that the prejudicial effect of the evidence was outweighed by its probative value was well open. Indeed, had we been exercising the discretion, we would have reached the same conclusion.
For these reasons, we would refuse leave to appeal in respect of ground 2.
Ground 3: was the verdict unreasonable?
The appellant's submissions
The appellant submits that it was not open, on a consideration of all the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant's guilt, given the narrow compass of the State case against him.[102]
[102] Appellant's submissions [44].
The appellant accepts that the State proved that a transfer of the suitcase and its contents was planned and coordinated, by controlling criminals using agents, to take place at Port Hedland at some point after 25 May 2017.[103] The appellant accepted at trial,[104] and accepts on appeal,[105] that Mr Nguyen was the designated collector. The appellant also accepts that the State proved that he had a part to play in the handover of the suitcase,[106] that being demonstrated by his possession of the dollar bill.[107] However, he submits that there was no evidence that the receiver of the banknote would necessarily be the physical deliverer of the suitcase, either generally or in this case.[108]
[103] Appellant's submissions [25].
[104] ts of closings 21, 22.
[105] Appellant's submissions [26].
[106] Appellant's submissions [27].
[107] Appellant's submissions [31].
[108] Appellant's submissions [31].
Further, the appellant points to the lack of evidence that he had any physical contact with, or was seen in possession of, the suitcase at any relevant time.[109] By contrast, one of the Bulgarians, Mr Stanchev, is seen on CCTV footage at 1.20 pm in possession of the suitcase.[110] The only conclusion is that Mr Stanchev brought the suitcase to the hotel. Nothing was proved as to Mr Stanchev's movements and contacts over the next several hours. The Bulgarians' hotel door access records were in evidence,[111] but these provided little insight into their movements. The Bulgarians were not under surveillance, being unknown to the police at that time.[112]
[109] Appellant's submissions [32] - [33].
[110] Appellant's submissions [34].
[111] BAB 8, 9.
[112] Appellant's submissions [35].
In relation to the issue of supply, the appellant submits that there was an alternative reasonable inference - that the Bulgarians physically delivered the suitcase containing the cocaine to Mr Nguyen, likely following an all-clear from the appellant.[113] He submits that Mr Stanchev (or Ms Bratanova or both of them) might have physically delivered the suitcase, because Mr Stanchev was the last‑known possessor of the suitcase, he was in the hotel and well able to visit room 341 at the relevant time undetected.[114]
[113] Appellant's submissions [38].
[114] Appellant's submissions [45].
In relation to the issue of knowledge, the appellant submits that it was not open to the jury to reject the reasonable inference that the appellant believed the suitcase contained money, even if the jury could find that he physically delivered the suitcase to Mr Nguyen. He submits that, to prove knowledge, the State needed to provide the jury with a basis in evidence to conclude he knew the suitcase contained drugs rather than money, but that there is none. He submits that Detective Coen's evidence - that a token is commonly used in drug and money transactions - points to the contrary conclusion.[115] As will be seen, in our view, it is not necessary to deal with this aspect of the appellant's submissions because the appellant succeeds on his primary contention on the issue of supply.
The State's submissions
[115] Appellant's submissions [46].
We will outline the State's submissions in the course of resolving ground 3.
Legal principles
The principles governing a ground of appeal that the verdict, in a criminal case that turns upon circumstantial evidence, is unreasonable and cannot be supported by the evidence are well known. They were summarised in Wells v The State of Western Australia[116] and need not be repeated. The question for the appeal court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the only rational inference that the circumstances permitted was that the appellant was guilty. That directs attention to whether the jury must, as distinct from might, have entertained a reasonable doubt as to guilt.
[116] Wells v The State of Western Australia [2017] WASCA 27 [13] - [14].
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay[117] as follows:
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[117] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].
Thus, the appellant must demonstrate that the jury was bound to find that there was, on the evidence, an alternative reasonable inference consistent with innocence.
Disposition
In our view, the State case proved, to the exclusion of any reasonable possibility to the contrary, that the appellant was one of several people involved in a planned handover of the suitcase containing the cocaine to Mr Nguyen, such transfer being planned and coordinated by persons in control, who used agents to effect their purpose.
The inference that the appellant was involved in the handover of the suitcase was compelled by the proven facts and circumstances, including the following:
(1)The appellant flew to Port Hedland at someone else's expense, and then spent five days in the confines of the hotel where the handover of the suitcase took place.
(2)Mr Nguyen was given room 341 on arrival at the hotel, a room number that had not been allocated to him in advance. In response to a request from David Hung, Mr Nguyen messaged him with the room number 341.
(3)Mr Nguyen spent at most 30 minutes in room 341, between 4.31 pm and 5.01 pm.
(4)On the day of the supply, David Hung sent a 'WeChat' message to Mr Nguyen saying that a 'possibly Vietnamese' person would come to see him in his room in 10 minutes. The appellant admitted he had a Vietnamese background. As explained below, the evidence established that the appellant went to Mr Nguyen's room. It must be inferred that the appellant was informed by David Hung, or another controlling person, of Mr Nguyen's room number.
(5)The suitcase must have been supplied to Mr Nguyen at the hotel in the 30‑minute period from 4.31 pm to 5.01 pm. The appellant was seen leaving Mr Nguyen's room during that 30‑minute period. When he was seen he was holding a small unidentified object.
(6)That object was very likely the US$1 bill found in the appellant's hotel room. That US$1 bill had the serial number corresponding to the number Mr Nguyen had provided to a third person in the 'WeChat' message on the day of supply. There was evidence from Detective Coen that the use of the serial number of a banknote as a receipt or token is common in drug or money transactions.
The conclusion outlined in [68] above would, on the face of it, have sustained a State case that the appellant was guilty of the offence on the alternative bases that (1) he 'supplied' the drugs (within the extended definition of 'to supply' in s 3(1) of the MD Act) or (2) he knowingly aided another or others to supply the drugs to Mr Nguyen. However, as already noted, the State case at trial was confined to the allegation that the appellant himself physically delivered the suitcase containing the drugs. It is neither necessary nor appropriate to speculate as to why the State chose to confine its case in that manner. On appeal, the respondent properly accepted that the State was bound by the manner in which it had confined its case at trial.[118]
[118] Respondent's submissions [11]; appeal ts 41.
Thus, the critical issue on appeal is whether at trial the State proved beyond reasonable doubt that the appellant himself physically delivered the suitcase containing the cocaine to Mr Nguyen.
The State case at trial invited the jury to draw an inference to that effect. Because this inference is, in substance, an inference of guilt, the jury could draw the inference only if that inference were the only rational inference permitted by, or arising from, the proven circumstances. Put another way, the jury could return a verdict of guilty only if the circumstances were inconsistent with any reasonable hypothesis other than guilt.[119]
[119] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 634; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104; R v Baden‑Clay [46].
Drawing an inference involves making a deduction from primary facts.[120] The drawing of an inference has been described as 'an exercise of the ordinary powers of human reason in the light of human experience'.[121] In Knight v The Queen,[122] Mason CJ, Dawson and Toohey JJ cited with approval what Dixon J had said in Martin v Osborne[123] in elucidation of the requirement that the circumstances must bear no other reasonable explanation. Dixon J explained that:[124]
This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
Thus, the jury, as the tribunal of fact, must draw upon their experience and their view as to 'the common course of human affairs' in evaluating what inference(s) may be drawn from the proven facts. We will return to this point.
[120] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375; Festa [5]; Smart v Power [2019] WASCA 106 [108].
[121] G v H [1994] HCA 48; (1994) 181 CLR 387, 390; Fazio v Fazio [2012] WASCA 72 [46].
[122] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 503.
[123] Martin v Osborne (375).
[124] Martin v Osborne (375).
The critical question is whether it was open to the jury to find that the proven circumstances compelled the conclusion, to the exclusion of any other reasonable hypothesis, that the appellant physically delivered the suitcase containing the cocaine to Mr Nguyen.
For the reasons that follow, in our opinion, it was not open to so find because the circumstances permitted an alternative reasonable hypothesis, namely that one of the Bulgarians physically delivered the suitcase to Mr Nguyen. That alternative hypothesis was advanced at trial by the defence; indeed, it was a central plank of the defence case - see [20] ‑ [22] above.
The evidence established that Mr Nguyen left the hotel at 5.01 pm with the suitcase. There was no evidence that the appellant brought the suitcase to the hotel. In substance, the evidence established that the suitcase was brought to the hotel by the Bulgarians: the suitcase wheeled in by Mr Stanchev must be accepted to have been the suitcase containing the cocaine.
On the State case, the Bulgarians must have given the suitcase to the appellant, who in turn delivered it to Mr Nguyen. That is how the prosecutor put the State case in closing.[125] The question is whether the evidence, and the proven circumstances, excluded the alternative inference that one of the Bulgarians delivered the suitcase to Mr Nguyen after they had received the all‑clear from the appellant that Mr Nguyen was the person to whom delivery should be made and, perhaps, that it was safe to do so.
[125] ts of closings 4.
In identifying what inferences were available, it should be noticed that there were a number of matters that were not the subject of evidence. No witness gave evidence of seeing the appellant with the suitcase. There was no forensic evidence suggesting that the appellant came into contact with the suitcase, there being no DNA or fingerprint evidence of that kind. The appellant's movements during the day, including in the critical 30‑minute window, were not the subject of surveillance, although an operative happened to observe the appellant leaving room 341 at 4.48 pm. Room 341 itself was not the subject of surveillance. Further, there was no surveillance of the Bulgarians.
Before Mr Nguyen obtained possession of the suitcase, the last person known to have possessed it is Mr Stanchev. He was seen to bring it into the hotel. Neither he nor room 341 having been under surveillance, on the face of it, the evidence does not exclude the alternative hypothesis that he, or Ms Bratanova, took it to room 341 and gave it to Mr Nguyen.
Of course, in deciding what hypotheses reasonably arise from the evidence, all the circumstances must be considered.
The respondent relies on the following propositions, in combination, as excluding this alternative hypothesis as not reasonably or rationally arising from the proven circumstances:
(1)There was an evident lack of trust between Mr Nguyen and the person who supplied the drugs to him.[126]
(2)The appellant's possession of the US$1 bill is consistent only with physical supply by him to Mr Nguyen of the drugs because it would not have been rational for Mr Nguyen to hand over the US$1 bill, which functions as a receipt, to anyone without having received from that person the drugs in exchange for it.[127]
(3)The alternative hypothesis provides no rational explanation for the appellant's involvement, he having flown to Port Hedland from Melbourne and spent five days in the hotel.[128]
(4)The content of the 'WeChat' messages tends against the alternative hypothesis, given their reference to a single person of Vietnamese nationality and the absence of any mention of further steps to be taken or of further persons going to room 341.[129]
(5)The narrow time frame involved makes it at least improbable that the steps necessary for delivery by one of the Bulgarians could have occurred within the 13 minutes between 4.48 am, when the appellant was observed leaving room 341, and 5.01 pm, when Mr Nguyen returned to the reception area.[130]
[126] Respondent's submissions [13] ‑ [14]; appeal ts 46 - 47.
[127] Respondent's submissions [13] ‑ [15]; appeal ts 48 - 49.
[128] Respondent's submissions [16]; appeal ts 55.
[129] Appeal ts 45 - 46.
[130] Appeal ts 50 - 51, 52.
In our opinion, none of these propositions, individually or in combination, excludes, as a reasonable hypothesis, that one of the Bulgarians physically delivered the suitcase to Mr Nguyen. We will consider each of the propositions in turn before considering their combined force.
We accept the respondent's first proposition. The proven circumstances compelled the inference that the suitcase was unpacked in room 341 and then repacked with the 20 blocks of cocaine. Evidently, this was done for the purpose of inspecting the contents of the suitcase, which, as the respondent submits, reveals a lack of trust between Mr Nguyen and the person supplying him with the suitcase. In itself, that does not take the respondent's case very far, as the respondent accepts.[131] The significance of the first proposition lies in its connection with the second proposition. The respondent submits that the lack of trust between Mr Nguyen and the deliverer of the suitcase tends to suggest, having regard to Detective Coen's evidence, that the US$1 bill must have been used as a receipt rather than a means of identification.[132]
[131] Appeal ts 47 - 48.
[132] Appeal ts 48 - 49.
Even when this submission is taken into account, for two reasons, we do not accept the respondent's second proposition. First, it relies upon the jury's assessment of how Mr Nguyen, as a person involved in a substantial drug deal, would rationally act or not act. Of course, Mr Nguyen did not give evidence, so there was no direct evidence as to what Mr Nguyen would or would not have done. As Mr Nguyen was evidently acting on instructions in many respects, the respondent's second proposition also invites attention to what instructions might rationally have been given by those directing Mr Nguyen as to the circumstances in which he should provide the US$1 bill to someone. Drug dealing is a sphere of activity in which the jury cannot be expected to have experience, or to be well‑placed to know what constitutes 'the common course of human affairs'. That places limits on their ability to use their experience, or their view as to the common course of human affairs, as a gauge for confining the inference(s) that may reasonably be drawn from the proven facts.
Secondly, to our minds, Detective Coen's evidence does not sustain the respondent's second proposition. His evidence was as follows:[133]
So when I use the term, '[t]oken', I use it to describe the serial number of a bank note. And it's commonly used, in my experience, for two things. It's used initially as a receipt, that a transaction's occurred. And secondly, it's used as a way for two people to identify that they're meant to be dealing with each other. So one - one person will hold the - the note and know the serial number, or - sorry, hold the actual note with the serial number on it, and the other person will know what the serial number should be of that note the person's holding.
…
A token number is a serial number of a bank note, which is commonly used in drug and money transactions as a receipt. And so that two people can confirm that they are meant to engage in a transaction involving the transfer of drugs and/or money.
[133] ts 219, 221.
As can be seen, his evidence was not that the serial number of a banknote is always used as both a receipt and a means of identification. Rather, in our view, his evidence is to the effect that a banknote's serial number might be used as either a receipt or a means of identification or both in any given transaction in which it plays a part. Insofar as it is used as a means of identification, Detective Coen's evidence was to the following effect:
(1) a token is commonly used so that 'two people can confirm that they are meant to engage in a transaction involving the transfer of drugs and/or money';[134] and
(2)one person would hold the banknote with the serial number on it, and the other person would know what that note's serial number should be.[135]
[134] ts 221.
[135] ts 219.
It is a small step from this evidence to infer that the following exchange occurred: (1) the appellant told Mr Nguyen the serial number of the dollar bill, thereby confirming to Mr Nguyen that he was dealing with the right person; then (2) the appellant requested the banknote from Mr Nguyen and told him to wait there - a person would attend his room shortly to deliver the drugs. To our minds, this inference remains open even taking into account the respondent's first proposition about the lack of trust between Mr Nguyen and the suitcase-deliverer.
In our view, it was not open to the jury, applying its common sense in the unfamiliar sphere of drug dealing, to exclude, on the basis of Detective Coen's evidence, the hypothesis that Mr Nguyen gave the US$1 bill to the appellant without having received the drugs from him.
We do not accept the respondent's third proposition. Bearing in mind the jury's limited familiarity with the common course of human affairs in the domain of drug dealing, it could not be said that the alternative hypothesis provides no rational explanation for the appellant's involvement. On the alternative hypothesis, the appellant's involvement might be seen as attending upon the intended deliveree of the drugs, without having physical possession of the drugs, to ensure that they were the person to whom delivery was to be made and to ensure that no other untoward circumstances, such as guns or recording devices, were apparent. In this manner, the appellant's role could be seen as, in effect, a sweeper. In such a role, the appellant would do a sweep of the proposed delivery location and the proposed deliveree, without having physical possession of, and thereby putting at risk, the large quantity of drugs the subject of the proposed delivery. Having done the sweep, he would then indicate to those with the drugs that it was safe to proceed with delivery.
Moreover, in answer to the respondent's third proposition, on the State case, there might be thought to be room for a similar question as to the need for the appellant's involvement: why could one of the Bulgarians not deliver directly to Mr Nguyen? In this context, it must be borne steadily in mind that the question is not which hypothesis is more probable in light of the proven circumstances, it is whether those circumstances admit of any reasonable hypothesis apart from guilt.
We accept the respondent's fourth proposition, to an extent. We accept that the reference in the 'WeChat' messages to a single person of Vietnamese nationality, and the absence of any mention of other persons or other steps to be taken, tends to favour the inference invited by the respondent. But, as we have said, the question is not which inference is more likely. The evidence as to the communications of the various players in the events of the day in question was incomplete. At the least, it was not established that other communications, not the subject of evidence, did not occur. What is said in the 'WeChat' messages is not inconsistent with multiple steps occurring: first, the appellant (the person of possibly Vietnamese nationality) attended room 341; thereafter, Mr Nguyen remained in the room and received the suitcase with the drugs from another person, separately instructed.
We do not accept the respondent's fifth proposition. The appellant was seen leaving room 341 at 4.48 pm. There is no evidence as to his movements between 4.48 pm and 4.56 pm, when his hotel room door was opened.[136] The operative who saw the appellant leave room 341 had come up the stairs on the eastern side of the building.[137] That was the direction in which the appellant was walking as he left room 341.[138] In the eight minutes between 4.48 pm and 4.56 pm, the appellant may have simply walked to the stairs and then gone down one floor to the room the Bulgarians had been allocated.[139] Alternatively, the appellant may have contacted the Bulgarians by other means, there being no evidence as to messages or calls the appellant might have made from his phone(s). One of the Bulgarians could have gone in the lift and arrived at room 341 within a few minutes and performed the delivery, allowing Mr Nguyen time to unpack and repack the suitcase and then go to reception. While that timeline might not allow for any slippage, it would be open to the jury to consider that people handling drugs would not wish to waste any time in the process of delivering the drugs, and in acting once the drugs had been received.
[136] Exhibit 17.
[137] ts 187.
[138] ts 187; BAB 11.
[139] BAB 11 - 12.
Mindful of the critical importance of not evaluating the evidence in a piecemeal fashion,[140] we have considered the evidence as a whole and the combined force of the matters to which the respondent points. Having done so, to our minds, the proven circumstances do not exclude, as a reasonable hypothesis, that one of the Bulgarians delivered the suitcase, with the appellant playing the role described above.
[140] R v Baden‑Clay [47]; R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48].
The State submits that an alternative inference that the appellant was present in the room when supply occurred, but he did not physically supply the suitcase, is not an inference consistent with innocence. That is because, on that scenario, the appellant would still be guilty under s 7(a) of the Criminal Code (WA).[141] For two reasons, that submission does not assist the respondent. First, for the reasons already given, the circumstances did not exclude, as a reasonable inference, the hypothesis that one of the Bulgarians handed over the suitcase after the appellant left the room. Secondly, and in any event, at trial the appellant advanced the alternative inference of supply by the Bulgarians as a central plank of the defence case. The judge directed the jury that if they were not satisfied that the appellant physically delivered the drugs, they must acquit. Thus, the alternative inference is a 'hypothesis other than guilt'.[142] In these respects, the present case stands in marked contrast to Wells v The State of Western Australia,[143] on which the respondent relied.
[141] Respondent's submissions [17]; appeal ts 41 - 45.
[142] Peacock (634), Barca (104), Baden‑Clay [46].
[143] Wells v The State of Western Australia [2017] WASCA 27 [34] ‑ [35].
For these reasons, in our view, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant physically delivered the suitcase containing the drugs.
In so concluding, we have borne carefully in mind that the setting aside of a jury's verdict is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal in seeing and hearing the witnesses.[144] In a case of the present kind, where there was very little dispute as to any of the primary facts, the jury's advantage, while still demanding a degree of appellate restraint, is less substantial than in a case raising credibility issues and involving conflicts in the evidence of different witnesses.
[144] R v Baden-Clay [65].
Ground 3 has been established. The appeal must be upheld because the State failed to prove beyond reasonable doubt its case at trial. In such a case, it is not appropriate to order a retrial to permit the State to run a different case which was expressly disavowed at trial.[145] Consequently, there should be a judgment of acquittal.
[145] Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 321, 322, 331; King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 429 - 430, 433; R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [52], [63].
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on grounds 1 and 2 is refused.
(2)Leave to appeal on ground 3 is granted.
(3)The appeal is upheld.
(4)The judgment of conviction is set aside.
(5)In substitution, there is a judgment of acquittal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech5 FEBRUARY 2020
12
27
1