Le v The State of Western Australia
[2023] WASCA 8
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 8
CORAM: BUSS P
MAZZA JA
SMITH J
HEARD: 17 JANUARY 2022
DELIVERED : 13 JANUARY 2023
FILE NO/S: CACR 2 of 2021
BETWEEN: PHUOC VAN LE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE AU DCJ
File Number : IND 1841 of 2019
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted of two counts of possessing methylamphetamine with intent to sell or supply, one count of possessing heroin with intent to sell or supply and one count of possessing money the proceeds of an offence - Whether verdicts unreasonable or unsupported by evidence
Legislation:
Criminal Code (WA), s 7(a), s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr H Q Vu |
| Respondent | : | Mr J C Whalley SC |
Solicitors:
| Appellant | : | Forbes Kirby Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dansie v The Queen [2022] HCA 25
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Fenn v The State of Western Australia [2020] WASCA 134
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12;(2020) 268 CLR 123
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
This is an appeal against conviction.
The appellant was charged on indictment (as amended at trial) in the District Court with four offences, all of which were alleged to have occurred on 15 November 2018 at East Perth. Counts 1 and 2 alleged that the appellant possessed a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Count 3 alleged that the appellant possessed a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another. Count 4 alleged that the appellant possessed $361,000 in cash, the proceeds of an offence, namely the sale or supply of a prohibited drug to another person.[1]
[1] Counts 1 ‑ 3 are contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Count 4 is contrary to s 563A(1)(b) of the Criminal Code (WA).
The appellant was tried by jury with a co‑offender, Mr Van Hoang Tran. The appellant and Mr Tran were jointly charged with count 1. Mr Tran was not charged with counts 2, 3 and 4.
On 9 December 2020, the appellant was found guilty of all four charges. Mr Tran was found guilty of count 1. On 18 December 2020, the appellant was sentenced to a total effective sentence of 16 years 6 months' imprisonment with eligibility for parole.
The appellant relies on a single ground of appeal that alleges that all the verdicts of guilty were unreasonable and unsupported by the evidence. The question of leave to appeal on this ground was referred to the hearing of the appeal.[2]
[2] Order Buss P, 3 June 2021.
At the hearing of the appeal on 17 January 2022, the appellant applied to adjourn the proceedings for a period of six months in order to appoint senior counsel to act on his behalf. The application was supported by the affidavit of the appellant's lawyer, Huan Quoc Vu, sworn 17 January 2022. This application was unanimously refused by the court with reasons to be published, along with the reasons in respect of the appeal itself, at a later date. Our reasons for refusing the application to adjourn will be set out at the end of these reasons. At the conclusion of the hearing, the parties were given leave to file supplementary written submissions in the appeal. The appellant filed supplementary submissions on 31 January 2022. The respondent notified the court that it did not wish to file any further submissions.
The State case
The decisive issue at the appellant's trial was, in respect of each charge, whether the appellant possessed the drugs the subject of counts 1, 2 and 3, and the cash the subject of count 4. As will be seen, the State did not allege that the appellant was in physical possession of the drugs and cash. Rather, the State's case was that the appellant possessed the drugs and cash by virtue of him knowing of the existence of the drugs and money and having the capacity to exercise and intending to exercise, with another or others, control or dominion over the drugs and cash. The State's case on this issue was circumstantial. In summary, the State's case was as follows.
In September 2018, West Australian police officers commenced an investigation known as Operation Queen into the activities of the appellant and Ms Dep Mong Ta, both of whom were residents of the State of Victoria. In essence, it was suspected that the appellant and Ms Ta were engaged in an enterprise which involved the transportation of prohibited drugs from interstate into Western Australia. In September 2018, police obtained telecommunication intercept warrants in respect of the appellant and Ms Ta.[3]
[3] ts 461.
During October and November 2018, police kept under surveillance premises at Unit 41, 60 Forrest Avenue, East Perth (the unit). Closed‑circuit television footage taken by devices installed by police and still images taken from the security system at the complex at 60 Forrest Avenue, East Perth, recorded the appellant and Mr Nelson Salcedo entering the premises on a number of occasions. Mr Salcedo was, at all material times, the partner of the appellant's daughter. The State's case at trial was that the unit was being used as a 'safe house' for the storage of prohibited drugs and cash derived from the sale of prohibited drugs. The State alleged that the appellant was the coordinator of the enterprise. Essentially, Ms Ta's role was to transport prohibited drugs into Western Australia, collect the proceeds of sale and return with them to Victoria. Mr Salcedo's role was to act as a storeman for the prohibited drugs and the cash kept at the unit.
On each day between 28 October 2018 and 1 November 2018, the appellant entered or was in the vicinity of the unit. On 31 October 2018, the appellant, Ms Ta and Mr Salcedo were video recorded in a taxi together.
On 2 and 3 November 2018, police intercepted communications between the appellant and Ms Ta, which, according to the State, included conversations in code regarding the supply of prohibited drugs. For example, the prohibited drugs were referred to as 'food', while the word 'paper' signified cash.
On 5 November 2018, text messages were exchanged between the appellant and Mr Salcedo. According to the State, the effect of these messages was to inform Mr Salcedo that prohibited drugs were imminently arriving from Melbourne.
Intercepted communications exchanged between the appellant and Ms Ta between 5 and 11 November 2018 revealed, on the State's case, that the appellant and Ms Ta were making arrangements to transport prohibited drugs to Perth and for Ms Ta to collect money already derived from the sale of drugs.
On 12 November 2018, the appellant sent a text message to Ms Ta, instructing her she must travel to Perth that evening. The State's case was that the appellant directed Ms Ta to transport the methylamphetamine from Melbourne to Perth. Upon her arrival, Ms Ta was to hand the drugs to Mr Salcedo at the unit in his capacity as storeman and he would provide her with cash derived from the sale of (other) prohibited drugs.
On 13 November 2018, Ms Ta telephoned the appellant, purportedly informing him that she was on her way (to Perth) and that she had passed through Adelaide. In fact, Ms Ta had not left Melbourne. On 13 November 2018, Ms Ta hired a grey Toyota Kluger vehicle, registration 302 XMX, at Tullamarine Airport in Melbourne. After she hired the Kluger, 12 vacuum‑sealed bags of methylamphetamine weighing a total of 2.875 kg were knowingly concealed inside the centre console of the vehicle in the space beneath the gear lever. This quantity of methylamphetamine was the subject of count 1. The vehicle was then driven by Mr Tran from Melbourne to Perth.
Later on 13 November 2018, the appellant sent a text message to Ms Ta instructing her to 'switch the phone off and remove the SIM'.
On 13 and 14 November 2018, the appellant and Mr Salcedo exchanged text messages which, on the State's case, informed Mr Salcedo that the drugs were on their way to Perth. Mr Salcedo, according to the State, said that he would have money available to give Ms Ta. On 14 November 2018, when Ms Ta did not arrive as expected, the appellant sent a text message to Mr Salcedo which said, 'Tell her ring me'.
On the afternoon of 15 November 2018, undercover police officers observed Mr Tran driving the Kluger on Great Eastern Highway on his way to Perth.
At 6.46 pm on 15 November 2018, the Kluger arrived at a hotel located on Great Eastern Highway in Rivervale. At 7.37 pm, police observed Mr Tran drive to Mount Street, Perth, near the Rendezvous Hotel, arriving there at 7.58 pm. Meanwhile, Ms Ta had, earlier that day, flown from Melbourne to Perth, arriving at Perth Airport at about 7.00 pm. She was observed by police to get into a taxi at Perth Airport which drove directly to the Rendezvous Hotel, arriving there at about 7.41 pm. At about 7.58 pm, Mr Tran and Ms Ta met near the Rendezvous Hotel. Mr Tran was observed to give the car keys of the Kluger to Ms Ta. Ms Ta was then seen to drive the Kluger alone to the complex at 60 Forrest Avenue, East Perth, where the unit was located. There, Mr Salcedo was waiting. Police observed Mr Salcedo open the electronically‑controlled gate to the carpark at the complex. Ms Ta drove into the complex, parked the Kluger, got out of the driver's seat and walked to the passenger side. At the same time, Mr Salcedo approached the driver's seat. At this point, police officers arrested Ms Ta and Mr Salcedo. A search of the Kluger located the 2.875 kg of methylamphetamine which had been hidden in the centre console.[4]
[4] Exhibit 8.
A search of Mr Salcedo revealed that he was carrying an electronic fob for the gate to the parking area of the complex at 60 Forrest Avenue, East Perth, and keys to the unit. Mr Salcedo was also carrying a black satchel which contained about $32,000 in cash.
Police officers then searched the unit. Police located a number of items including $361,000 in Australian bank notes concealed in the lining of three eskies, and beneath the rangehood filter in the kitchenette. The cash was in bundles of $50 and $100 notes which were either Cryovaced or wrapped with Gladwrap. This sum of cash was the subject of count 4 on the indictment.[5] Police also found 247.68 g of methylamphetamine in a set of drawers in the lounge area. This methylamphetamine was the subject of count 2 on the indictment. In the same set of drawers, police found 527.3 g of heroin in a clipseal bag. This was the subject of count 3 on the indictment.[6] In addition to these items, police located a number of items consistent with drug dealing, being a FoodSaver machine, unused Cryovac rolls, plastic disposable gloves, rolls of plastic, a tick list and a money counting machine.
[5] ts 148 and exhibit 13.
[6] The quantities of methylamphetamine and heroin found in the unit were agreed at trial, see ts 146 ‑ 147.
At about the time detectives arrested Ms Ta and Mr Salcedo, other detectives arrested Mr Tran inside the Rendezvous Hotel.
On 17 November 2018, the appellant flew from Melbourne to Perth and was arrested at Perth Airport. Upon his arrest, police located a number of items on him, including three mobile telephones and two sets of keys. Later that day, the appellant was interviewed by police in a video‑recorded record of interview. An edited version of this interview was tendered in evidence and played to the jury.[7]
[7] Exhibit 40.
The State alleged that the appellant deliberately told the police a number of lies in the interview, including one lie which it said was an 'Edwards lie'.[8] The State alleged that the appellant's statement in the interview that he had not attended or entered the unit was such a lie.[9] The State's case was that, on 1 November 2018, police officers had covertly observed the appellant attend at the complex at Forrest Avenue, East Perth, and enter the unit carrying a box with a picture of a FoodSaver on it. The State alleged that the appellant lied to police because the truth would implicate him in the commission of the alleged offences.
[8] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
[9] It was not contended at trial or on appeal that the lie, if established, was not an Edwards lie - appeal ts 10.
Other covert police surveillance revealed that on 31 October 2018, the appellant was in a taxi with Ms Ta and Mr Salcedo that was being driven to the unit. During the journey, the appellant sat in the front seat of the taxi. When the taxi reached the unit, Mr Salcedo got out, went to the unit and, a short time later, returned to the taxi in possession of a bag which he handed to Ms Ta. The State alleged that the bag contained a quantity of cash.
In relation to each count on the indictment, the State did not allege that the appellant was in physical possession of the prohibited drugs or the cash. In relation to count 1, the State's case against the appellant was that he directed Ms Ta to facilitate the transport of the 2.875 kg of methylamphetamine from Melbourne to Perth to be supplied to Mr Salcedo and stored at the unit. The appellant had a key to the unit. The State alleged that while the appellant was never in physical custody of the methylamphetamine, he coordinated its delivery. The appellant knew of the existence of the drug and had the capacity to exercise and intended to exercise control or dominion over it. The State did not allege that the appellant was in sole possession of the drug. Rather, the State's case was that the appellant was in joint possession of the methylamphetamine with other people including Mr Tran.
In relation to count 2, the State case was, in essence, the same as in count 1, although it was not alleged that the appellant was in joint possession of the prohibited drugs the subject of those charges with Mr Tran. With respect to the methylamphetamine the subject of count 2, the State's case was that the appellant jointly possessed the methylamphetamine the subject of the charge with others, including Mr Salcedo, on the basis that Mr Salcedo stored the drug at the unit with the knowledge and at the direction of the appellant. The appellant had a key to the unit. He knew of the existence of the drug and had the capacity to exercise and intended to exercise control or dominion over it.
In relation to count 3, the State alleged that the appellant jointly possessed the heroin with others, including Mr Salcedo. The State alleged that Mr Salcedo stored the heroin at the unit with the appellant's knowledge and at his direction. The appellant had a key to the unit. He knew of the existence of the drug and had the capacity to exercise and intended to exercise control or dominion over it.
In relation to count 4, the State alleged that the appellant was in joint possession with others, including Mr Salcedo, of the $361,000 cash found in the unit. The State alleged that Mr Salcedo stored the cash at the unit with the appellant's knowledge and at his direction. The appellant had a key to the unit. He knew of the existence of the cash and intended to exercise control or dominion over it. The State alleged that the cash was, to the appellant's knowledge, the proceeds of selling or supplying prohibited drugs.
The State's case against the appellant included the observations of a number of police officers who conducted covert surveillance of the appellant, Mr Tran, Ms Ta and Mr Salcedo, intercepted electronic communications between the appellant and the co‑accused, images including video‑surveillance of the appellant and the co‑accused, a video‑recording of what occurred in the taxi on 31 October 2018, the video‑recorded record of interview on 17 November 2018 and the testimony of Mr Salcedo. Ms Ta and Mr Tran did not give evidence for the State (or the defence). Later in these reasons, we will summarise as much of this evidence as is necessary to deal with the ground of appeal, including the intercepted electronic communications involving the appellant, the testimony of Mr Salcedo and the appellant's video record of interview.
The defence case
The appellant did not give or adduce evidence at trial.
The defence case, as opened to the jury, was that the appellant was not the 'Mr Big' of the enterprise. As defence counsel for the appellant put it, there was no 'Mr Big'; rather, there was a 'Mrs Big', being Ms Ta.
The defence case was that Mr Tran and Mr Salcedo dealt with Ms Ta, not the appellant.
The defence alleged that Mr Salcedo received 'a very big benefit'[10] (in the form of a reduced sentence) for testifying against the appellant and that Mr Salcedo did so to sacrifice the appellant and to save himself. The defence case was that, if the appellant was in charge of an enterprise of the kind alleged by the State, it made no sense for him to travel to Western Australia on 17 November 2018 and, once arrested, to voluntarily participate in a video record of interview.
[10] ts 77.
Further, there was no evidence to connect the appellant with the prohibited drugs and cash found by police either in the Kluger or the unit on 15 November 2018.
While it was not denied that the appellant knew Ms Ta and Mr Salcedo and that their actions may be perceived as suspicious, this did not amount to the appellant's guilt.
As to the intercepted communications, the defence alleged that there were 'difficulties' with respect to their translation from Vietnamese to English. It was argued that the State's contention that the word 'food' was code for 'drugs' should not be accepted because it is based on a presumption of guilt rather than a presumption of innocence.
An argument relied upon by the appellant at trial (and repeated on appeal) was that if the appellant was the organiser of the enterprise, why did Ms Ta lie to him about transporting the methylamphetamine to Perth herself? This conduct, the appellant contended, is completely inconsistent with the appellant being the 'Mr Big' of the operation.
Evidence led by the State
In large measure, the State's case comprised essentially unchallenged evidence adduced from police officers including covert operatives who conducted physical surveillance of Mr Tran, Ms Ta and Mr Salcedo on 15 November 2018. It is not necessary to summarise this evidence, the effect of which is set out at [18] ‑ [22] above.
Senior Constable Daniels
The State called Senior Constable Jack Daniels. He monitored covert surveillance cameras situated in the vicinity of the unit. He testified to the effect that an optical device with a live feed was set up outside the complex at 60 Forrest Avenue, East Perth, which looked directly into Unit 41. He also had access to the complex's own security system called Mangocam. Through Senior Constable Daniels, the State adduced both video footage and still images taken on 28 October 2018,[11] 29 October 2018,[12] 30 October 2018,[13] 31 October 2018[14] and 1 November 2018.[15] This material showed that on all of these days the appellant attended at the unit or was in the complex. On 28 October 2018, 30 October 2018, 31 October 2018 and 1 November 2018, the appellant was in company with Mr Salcedo. On 29 October 2018, the appellant attended the complex by himself. On 28 October 2018, a person identified as the landlord of the unit attended the complex.
Detective Senior Constable Gardiner
[11] Exhibit 19 and exhibit 25.1 ‑ 25.5.
[12] Exhibit 20 and exhibit 26.1 - 26.3.
[13] Exhibit 21 and exhibit 27.1 and 27.6.
[14] Exhibit 22, exhibit 23, exhibit 28.1, exhibit 29.1 ‑ 29.3.
[15] Exhibit 24 and exhibit 30.1 ‑ 30.3.
An important part of the State's case against the appellant were the intercepted telephone calls and text messages.
Detective Senior Constable Bradley Gardiner, who was the investigating police officer, testified that, on 19 September 2018, he applied for, and obtained, telecommunications intercept warrants in respect of the mobile phones of the appellant and Ms Ta. Because many of the communications were in Vietnamese, Detective Gardiner called upon the services of a Vietnamese interpreter, Mr Hue Nguyen.
The State adduced a total of 77 communications involving the appellant. Where necessary, they were translated from Vietnamese into English by Mr Hue Nguyen. The 77 communications comprised both telephone conversations and text messages. The participants were the appellant, Ms Ta and Mr Salcedo. There were no communications involving Mr Tran. These communications were presented to the jury in tabular form as exhibit 34.[16] Where a communication was not in English, the table included the Vietnamese text, along with Mr Hue Nguyen's translation of that text. The table also included (apparently by agreement) the translations made by a Vietnamese interpreter retained by the appellant, Mr Tam Nguyen. While Mr Hue Nguyen gave evidence at trial, Mr Tam Nguyen did not.
[16] See BGAB 91 - 101.
The intercepted communications revealed that in the weeks leading up to 15 November 2018, the appellant had been communicating with Ms Ta and Mr Salcedo by text and telephone to, on the State's case, coordinate the delivery of the prohibited drugs the subject of count 1 from Melbourne to Perth. One of the communications was a telephone conversation on 20 October 2018 between Ms Ta and Mr Salcedo which proceeded as follows:
| No | Date | Time | From | To | Original text/Audio |
| 1 | 20.10.18 | 14.35.11 | TA | SALCEDO | NS: Hello. DT: You say 18? NS: 19. DT: 19. NS: 195. DT: You sure? NS: Yeah. Are you sure? Ah…Minus…I give you…Okay. Ah. Yours might be different because I give Tony 95. DT: Oh [Indistinct] NS: Sh. Sh. Aunty, relax. DT: Okay. Listen. NS: Ok so yours is, okay here, 655, that's minus… DT: Hang on hang on hang on NS: Okay. DT: 1855? Only 1855 NS: Ok so plus DT: Less. First time 175… NS: First time I give you. Hold on. 1855 is what you got? DT: No, 175 not 8. NS: No the whole entire. All together. DT: Yeah 18. 1855. NS: That's what I said. 1855. All together DT: You said 1955 oh my god you kill me. NS: You is 1855. Plus 95 for Tony is 1950 altogether…So if he asks DT: 195 altogether…195 is not correct. 1855 is correct. NS: 1855 is yours. But altogether I given 1955. So if he says where is the 90, the this, it's from Tony. So 1950 minus the 95 is what you have. DT: So 1855. NS: Correct Aunty Yeah. DT: Yeah that's good oh my god you say 1955. NS: You always get so scared easily. [Indistinct] NS: I know, don't worry. Don't worry. You have to believe in me…Yeah everything should be good. DT: I asked you. I believed you that's why I asked you. No worries. NS: Yeah everything should be good. If he asks the 95 is Tony and then if he want I can tell him that too. Cos I'm sure. Cos the first week Tony gave him 95 and the second week he came. DT: Okay NS: So that's should be good. DT: Yeah should be good. Today is good? NS: Today is slow. DT: Oh today is here very raining. NS: Oh yeah, same here. Yeah it's back here right now. DT: That's okay. Take care okay. NS: Okay aunty. |
On 2 and 3 November 2018, the appellant and Ms Ta exchanged the following text messages which, on the State's case, used code words to discuss the purchase and interstate importation of prohibited drugs. Among the code words were 'food' which meant drugs; 'paper' which meant money; and 'stuff' which also meant drugs. The relevant text messages as extracted from exhibit 34, and which include Mr Tam Nguyen's translations, are as follows:
| No | Date | Time | From | To | Hue Nguyen's interpretation | Tam Nguyen's interpretation |
| 3 | 2.11.18 | 0.03.57 | TA | LE | What's happening bro Ba (Bro 3)? | How is it, bro Ba? |
| 4 | 2.11.18 | 0.09.37 | TA | LE | He/she said last time we complained it was crumbled. Then this time, it came in chunkier pieces, we were not happy with it either as we wanted it to be like the one offered last time. He/she said it was very tasty despite being a bit crumbled. 'You like it to be chunkier, but it doesn't taste as nice as it has been re‑cooked to produce larger chunks.' So what should be done now bro Ba (Bro 3)? | He/she said last time I/we complained it was crushed so this time it came in bigger pieces but I/we are still not happy and wanted it to be like last time although it was a little bit crushed but it taste good and if I want it to be in big pieces then it didn't taste good because it has been re‑cooked. So what now bro ba? |
| 5 | 2.11.18 | 01.22.21 | LE | TA | They want it to be like the previous one. | |
| 6 | 2.11.18 | 16.49.26 | LE | TA | Is the food that is available now white or ivory white in colour? | |
| 7 | 2.11.18 | 17.17.08 | LE | TA | Meat 11 bags | |
| 8 | 3.11.18 | 08.02.58 | LE | TA | When you hand it over ask when paper is available? | |
| 9 | 3.11.18 | 08.03.14 | TA | LE | Ok bro Ba (Bro 3). | |
| 10 | 3.11.18 | 08.04.54 | LE | TA | Does your friend still have the old food? | |
| 11 | 3.11.18 | 08.06.56 | TA | LE | Yes, bro Ba (Bro 3). | |
| 12 | 3.11.18 | 08.12.42 | LE | TA | What colour is the food you have with you now? | |
| 13 | 3.11.18 | 08.13.30 | LE | TA | Is it like the second time or the previous trial? | The word 'Going' is not Vietnamese. If we assume that it's misspelled and should be 'giống' meaning 'like' then the message can be translated as 'Is it like the second time or the previous tasting?['] |
| 14 | 3.11.18 | 08.14.28 | LE | TA | Previously it had been white, the 2nd time it's slightly ivory white in colour. | Previously it was white, the second time it's slightly ivory. |
| 15 | 3.11.18 | 08.15.14 | TA | LE | 1/ It's identical to the colour (of the stuff) you gave me the other day. 2/ It's identical to the sample you gave me the other day. | Exactly the same as you gave me the other day. |
| 16 | 3.11.18 | 08.15.56 | TA | LE | Slightly ivory white is not acceptable, is it? | |
| 17 | 3.11.18 | 08.16.19 | LE | TA | You've got it from him/her twice, haven't you? | The word 'lay' in Vietnamese could mean 'take' or 'bring' but also could mean a sexual relationship. If we assume 'lay' here means 'take' then the message can be translated as: You've got it from him/her twice, haven't you? If we assume 'lay' is in the context of a sexual relation [sic] it could be translated as: You've had sex with him twice, haven't you? |
| 18 | 3.11.18 | 08.16.56 | LE | TA | It has been brought to Perth twice, hasn't it? | |
| 19 | 3.11.18 | 08.17.22 | LE | TA | Or once only? | |
| 20 | 3.11.18 | 08.18.04 | TA | LE | Just once. | |
| 21 | 3.11.18 | 08.18.35 | LE | TA | It means he/she likes the stuff from Tien. | The word 'do' written here is without any symbols or diatrics which means it can be literally translated as 'because'. In fact the word 'do' will take a completely different meaning depending on the symbols or diatrics the user puts on it, as follows: 1/ do as in 'do đó' = because 2/ độ as in 'độ nhậu' = drinking event /party 3/ đồ as in 'đồ nhậu' - drink stuff 4/ đồ as in 'đồ dùng' = stuff/thing 5/ đổ as in 'đổ bể' = spilled 6/ đỗ as in 'đỗ xe' - park the car 7/ đố as in 'thách đố' - challenge 8/ đồ as in 'đồ mặc' = clothing So if we assume that the message written is using the word 'đồ' as in example 4 above, the text message can then be translated as 'Then he/she likes the thing from Tien'. |
| 22 | 3.11.18 | 08.18.40 | TA | LE | Previously, 98 from bro T | |
| 23 | 3.11.18 | 08.19.12 | LE | TA | Ok. I've got it now. | Ok, I understand |
On 5 November 2018, the appellant and Mr Salcedo exchanged the following text messages:
| No | Date | Time | From | To | Hue Nguyen's interpretation | Tam Nguyen's interpretation |
| 24 | 5.11.18 | 15.33.48 | LE | SALCEDO | 4 more day ok? (Original Text) | |
| 25 | 5.11.18 | 15.39.47 | SALCEDO | LE | Ok I let everyone know (Original Text) |
Between 5 and 11 November 2018, the appellant and Ms Ta exchanged a number of text messages which, on the State's case, concerned the consistency, colour, quantity and source of the 'food'. These exchanges are as follows:
| No | Date | Time | From | To | Hue Nguyen's interpretation | Tam Nguyen's interpretation |
| 26 | 5.11.18 | 18.10.25 | TA | LE | 1/ She asked if the 'Hui' scheme had been managed by a different host. I said Hui had been opened by one host only. 2/ She asked if the 'Hui' scheme had been managed by a different host. I said Hui had been opened for bidding by one host only. | She asked if is there different hui organisers I said there is only one |
| 27 | 5.11.18 | 18.25.40 | LE | TA | Stop it then! It's too hard. This is not the job we were predestined to do. Footnote: In the text message, 'l'ho' is not a Vietnamese word. If 'l' was a typographical error for the letter 'k' then the word 'l'ho' could be changed to 'kho' which means 'hard' or 'difficult'. | 1. The word job is not in there - which would be 'công việc' or 'việc làm'. 2. The word hard is not in there - unless they assumed l' was a typo and it should have been a k. 3. The words 'stop it then' is also not in there - 'Thoi' in this context could only be a filler word with no real meaning and not translate to any word. |
| 28 | 5.11.18 | 18.25.42 | LE | TA | 1/ Come over (there) to take it back. 2/ Take it back this evening. | |
| 29 | 5.11.18 | 18.25.42 | LE | TA | 1/ How are they slightly different from each other? 2/ Ask (her) how they are different from each other. | |
| 30 | 5.11.18 | 18.28.22 | TA | LE | The other day, I picked only big chunks. Now there are both big and small chunks. That's why she is saying it's different. | On that day, I picked only big pieces. Now there are both big and small pieces. That's why she is saying it's different. |
| 31 | 5.11.18 | 18.33.56 | LE | TA | Oh. | |
| 32 | 5.11.18 | 18.34.14 | LE | TA | Then redo it to make sure it's like the old one and give it to her. | Then redo it like the old one and give it to her. |
| 33 | 5.11.18 | 18.34.24 | LE | TA | Let it be. | So be it |
| 34 | 5.11.18 | 18.34.45 | LE | TA | The crumbled one will be taken to Per. | |
| 35 | 5.11.18 | 18.34.50 | LE | TA | I'll take care of it. | |
| 36 | 5.11.18 | 18.35.13 | LE | TA | Swap it over for her. | |
| 37 | 5.11.18 | 18.35.20 | LE | TA | Pick large ones. | The word 'Kua' is not Vietnamese. If you assume Kua was meant to be Lua it might be translated into 'pick'. |
| 38 | 5.11.18 | 18.36.59 | LE | TA | She said the colour was different too. | |
| 39 | 5.11.18 | 18.39.28 | LE | TA | Let her know that. | |
| 40 | 5.11.18 | 19.21.13 | LE | TA | 1/ Be careful! You might have delivered by own food by mistake 2/ Be careful to make sure my own food is not delivered by mistake. | Be careful not to mix up my food with yours |
| 41 | 5.11.18 | 19.21.45 | LE | TA | Take another look. | |
| 42 | 5.11.18 | 19.46.48 | TA | LE | I've marked yours, have I not? | I marked what are yours |
| 43 | 5.11.18 | 19.58.10 | LE | TA | Then why she said it's different in colour as it's whiter? | |
| 44 | 7.11.18 | 17.23.25 | LE | TA | (Unintelligible) a lot of paper. | |
| 45 | 7.11.18 | 18.01.40 | LE | TA | 1/ Paper to be collected tomorrow. 2/ Collect paper tomorrow. | |
| 46 | 7.11.18 | 19.36.52 | TA | LE | So how many more pieces are you going to get from your side bro Ba (Bro 3)? | |
| 47 | 7.11.[1]8 | 19.51.31 | TA | LE | I've asked him/her to bring chunks for us to eat if he/she comes down, bro Ba (Bro 3). | I've said if he/she is coming down then bring pieces for us to eat, bro Ba. |
| 48 | 7.11.18 | 20.27.59 | LE | TA | Has he/she replied yet? | |
| 49 | 7.11.18 | 21.28.07 | TA | LE | He/she won't come down until Sunday bro Ba (Bro 3). | 'Cn' is not a Vietnamese word. If we guess 'Cn' is abbreviation for 'Chử Nhật' meaning Sunday then the text message can be translated as 'He/she will only comes down on Sunday'. |
| 50 | 7.11.18 | 21.28.41 | TA | LE | I've told him/her to bring us 1 kg of chunky type. | I've told him/her to bring us 1 kg of the type in pieces. |
| 51 | 7.11.18 | 21.28.59 | TA | LE | He/she said Ok. | |
| 52 | 11.11.18 | 11.57.01 | TA | LE | Bro Ba! Sister Nhung asked how I had come to know you. All I said to Nhung was I only collected paper and sent it to Vietnam for you. All right bro Ba. | Bro Ba! Sister Nhung asked how come I know you. All I said to Nhung was I collected paper and sent it to you in Vietnam. Is it okay with you bro Ba. |
On 12 November 2018, the appellant exchanged a series of text messages with an unknown person in which the appellant discussed the appearance, consistency and purity of a substance which is to be consumed and which, on the State's case, was drugs. In the course of this exchange, the appellant sent to the unknown person a text (exhibit 34, message 60), which Mr Hue Nguyen translated as, '1/ Ask him/her what percentage the crumbled portion is [or] 2/ Ask him/her how much the crumpled portion is'; while Mr Tam Nguyen translated the same message as, 'Ask him/her what is the crushed portion'. Further messages sent by the appellant to the unknown person stated, 'I'm going to take one', and, 'Testing should be done first'.[17]
[17] See exhibit 34, text messages 54 - 63.
Later, on 12 November 2018, the appellant sent a text message to Ms Ta which was translated by both interpreters as, 'Must go this evening'.[18] The State's case was that in the context of the previous text messages, the appellant was directing Ms Ta that she must transport the prohibited drug to Perth that evening.[19]
[18] Exhibit 34, message 64. Mr Hue Nguyen also provided an alternative translation: 'Trip must be made this evening'.
[19] Exhibit 34, message 64.
On the morning of 13 November 2018, Ms Ta telephoned the appellant. The conversation, which was brief, was in these terms:
| No | Date | Time | From | To | Hue Nguyen's interpretation | Tam Nguyen's interpretation |
| 65 | 13.11.18 | 08.05.14 | TA | LE | PL: Hello! DT: I am listening bro Ba. PL: You've left, right? DT: Yeah. PL: Mm. Half of the way yet? DT: My goodness! Only half of the way? I left at around mid‑night. PL: Mm‑hmm. DT: Just passed (Indistinct) a bit. PL: You've passed Adelaide right? DT: Yeah. PL: Ok. (Indistinct). Ok. DT: Yeah. |
On the State's case, this conversation showed that the appellant was concerned to ensure that Ms Ta had left Melbourne and that she had passed Adelaide. Ms Ta told the appellant that she had left Melbourne and passed Adelaide.
Later on 13 November 2018, the appellant sent a text message to Ms Ta, instructing her to 'switch the phone off and remove the SIM'.[20]
[20] Exhibit 34, message 66.
Despite telling the appellant on 13 November 2018 that she had left Melbourne and had passed Adelaide, Ms Ta remained in Melbourne. Through Detective Gardiner, documentary evidence was adduced to show that, at 3.45 pm on 13 November 2018, Ms Ta hired the Kluger which was used to transport the 2.875 kg of methylamphetamine the subject of count 1 to Perth. The State's case was that Ms Ta gave the Kluger to Mr Tran who drove it, with the methylamphetamine on board, from Melbourne to Perth.
After Ms Ta and the appellant spoke on 13 November 2018, the appellant and Mr Salcedo exchanged text messages. The appellant wrote, 'How now?' Mr Salcedo replied, '1c'.[21]
[21] Exhibit 34, messages 67 and 70.
On 14 November 2018, the appellant and Mr Salcedo again exchanged text messages. The exchange begins with the appellant writing 'cash' followed immediately by another text message 'taxi come'. Mr Salcedo's reply was, 'OK. Tonight. I will have it ready'. The State's case in respect of these messages was that the appellant, under the impression that Ms Ta was driving to Perth with the prohibited drugs, in effect, informed Mr Salcedo that they would be delivered by 'taxi' that night. When the delivery was not made that night, the appellant sent a message to Mr Salcedo instructing him, 'Tell her ring me'.[22] The State's case was that the reference to 'her' was a reference to Ms Ta. These messages also indicate that Mr Salcedo had the 'cash' ready.
[22] Exhibit 34, messages 67 - 74.
On 15 November 2018, text messages sent to Ms Ta's mobile phone showed that she had booked a flight from Melbourne to Perth, boarding at 5.05 pm EST.[23]
[23] Exhibit 34, messages 75, 76.
While under cross‑examination by defence counsel for the appellant, Detective Senior Constable Gardiner gave this testimony about the number of telephone calls and text messages that were recorded over the several months of the investigation:[24]
[24] ts 469.
And just finally, in relation to the - the warrants you had over different phones - I don't expect you to remember the precise number - but the - the - you were listening and checking Mr Le's telephone calls and text messages over several months, is that correct?‑‑‑Correct.
And there were thousands and thousands and thousands of text messages and calls during that time, weren't there?‑‑‑I wouldn't say thousands. There was a few, but ‑ ‑ ‑
I think in total, of the different phones, that ‑ ‑ ‑?‑‑‑Of all of the phones?
And I mean for all of the – the – the people, you had 8,774 separate and calls and text messages from different people?‑‑‑Is that for all targets.
Yes?‑‑‑Yep.
All right. And are you aware of the schedule that's been put before the jury in this trial, or not?‑‑‑I am.
Sorry?‑‑‑I am.
Yes. And that - that reflects the - the calls and the text messages that you ‑ you ‑ well, let me put it this way. We haven't seen text messages about, you know, going to visit mum or calling aunty in Vietnam or anything like that, have we?‑‑‑Me.
We've included relevant ones?‑‑‑Yeah.
Is that right?‑‑‑Yep.
Detective Senior Constable Roberts
Detective Senior Constable Wade Roberts gave unchallenged evidence to this effect. In his extensive experience in investigating drug offences, speaking with or dealing with undercover operatives, human sources and his review of the contents of seized mobile phones and other electronic devices, often prohibited drugs, including methylamphetamine, were referred to by code words.[25] When asked in examination‑in‑chief about the form methylamphetamine was commonly sold, Detective Roberts testified that it was commonly sold in crystalline or powdered form and that its colour varied between white, off‑yellow or, when in crystalline form, it was clear.[26]
[25] ts 355.
[26] ts 355.
Detective Roberts said that the average purity for methylamphetamine seized in November 2018 was 75%[27] and its price per kilogram was between $130,000 and $190,000.[28] Detective Roberts also gave evidence about the value of heroin in November 2018.[29] He said that at that time the value of half a kilogram of heroin was between $90,000 to $120,000.
[27] ts 356.
[28] ts 357.
[29] ts 357 - 359.
Detective Roberts said that in the majority of cases he had been involved in, methylamphetamine and heroin was paid for in cash which was sometimes referred to as 'paper'.[30]
[30] ts 359.
Detective Roberts explained that methylamphetamine was commonly packaged in quantities above 1 oz in Cryovac bags or a FoodSaver heat‑sealed bag.[31] Detective Roberts also testified that, in his experience, when executing drug search warrants, such things as Cryovac bags, machines for sealing those bags, multiple mobile telephones, scales, elastic bands, paper towels, tick lists showing amounts of money owed and cash, usually in denominations of $50 or $100 notes, were commonly found.[32]
[31] ts 359.
[32] ts 360, 363 - 364.
It is convenient at this point to summarise the evidence of Mr Hue Nguyen and then Mr Salcedo. It is necessary to do so because, both at trial and on appeal, the appellant alleged that the State's case was deficient because of alleged problems with their evidence. On appeal, it is said that there were 'interpretational' problems with the evidence of Mr Hue Nguyen[33] and that Mr Salcedo's testimony contained 'insufficiencies'.[34]
Hue Nguyen
[33] Appellant's case [27].
[34] Appellant's case [22] - [24].
Mr Hue Nguyen is a NAATI‑accredited level 3 translator and interpreter. He has been a level 3 interpreter for 26 years. He is qualified to interpret at a professional level from Vietnamese into English. Mr Hue Nguyen is employed by the WA Police. At the time of the appellant's trial, he had worked for the WA Police for more than nine years.
Mr Hue Nguyen said in examination‑in‑chief that the guiding principle for a professional translator is 'idiomatic translation'. He explained that, in text messages, word‑for‑word translation can distort the meaning of the message and result in a translation that is 'strange and foreign to the speakers of the target language [in this case, Vietnamese]'.[35]
[35] ts 368.
Relevantly to the State's case against the appellant, Mr Hue Nguyen testified as to the contents of exhibit 34, including Mr Tam Nguyen's translations of some of the text messages.
Mr Hue Nguyen accepted, under cross‑examination, that it was almost impossible to achieve an accuracy in translation of 100%, but an accurate translation was, he said, 'not impossible'.[36]
[36] ts 439.
Mr Hue Nguyen's accepted under cross‑examination that the accents of the appellant and Ms Ta were different, but said, in effect, that this caused him no difficulties.[37]
[37] ts 420.
Mr Hue Nguyen's attention was drawn to his interpretation of one of the text messages referred to at [48] above, being message 60. Mr Hue Nguyen gave two alternative translations for this message, one of which included the word 'percentage'. Mr Hue Nguyen agreed that the Vietnamese word for 'percentage' did not appear in the original text message, but there were, as he put it, 'many ways [to] allow me to do it' and that it was no 'big deal'.[38]
Nelson Salcedo
[38] ts 437 - 438.
Mr Nelson Salcedo's evidence‑in‑chief included the following:
(a)At the time he gave evidence he was 33 years old. He is a Canadian citizen.
(b)He described the appellant as his father‑in‑law. They first met in person in Melbourne in June 2018. The appellant speaks Vietnamese and has little English.[39]
[39] ts 259 - 260.
(c)About two days after meeting the appellant, the two men flew from Melbourne to Perth.[40] Upon their arrival, they travelled together to a house in a suburb of Perth, where the appellant spoke in Vietnamese to a person called Diem. Before the appellant and Mr Salcedo left the house, the appellant ordered him to pick up a plastic bag from the garage. Inside the plastic bag was a shoebox. A taxi then picked them up from Diem's house and took them to the unit. The appellant used a set of keys to unlock the door of the apartment. Inside the apartment, in the presence of the appellant, Mr Salcedo opened the box and saw that it contained a quantity of cash. The bank notes were in denominations of $50 and $100 notes and were wrapped with elastic bands. Mr Salcedo said that there were at least four or five stacks of cash, with each stack being about 2 1/2 inches high. The appellant told him to store the cash in an esky inside the unit. Mr Salcedo referred to the unit as 'the safe house'.[41]
[40] ts 261.
[41] ts 264 - 265.
(d)The esky in which the cash was stored contained a hollow lining into which the cash was placed. After about an hour, Mr Salcedo and the appellant left the apartment to eat.[42]
[42] ts 267 - 268.
(e)Mr Salcedo stayed in Perth for 'roughly a week and a half to two [weeks]'.[43] The appellant returned to Melbourne at some point during this period.
[43] ts 268.
(f)While they were in Perth, the appellant gave Mr Salcedo a mobile telephone and told him that 'he will call'.[44]
[44] ts 268.
(g)At the end of his stay in Perth, Mr Salcedo returned to Melbourne. He stayed there for a day and then he flew to Canada.[45]
[45] ts 269.
(h)Mr Salcedo stayed in Canada for about two months. In that time, he did not communicate with the appellant.[46]
[46] ts 270.
(i)In September 2018, after a text message from the appellant sent via the appellant's daughter requesting Mr Salcedo 'to come and follow him, to go work for him',[47] Mr Salcedo returned to Melbourne.
[47] ts 270 - 271.
(j)Upon his arrival in Melbourne, Mr Salcedo went by taxi to the appellant's home. They then went to a restaurant where Mr Salcedo met Ms Ta, who was introduced to him by the appellant as 'Aunty'.[48]
(k)Mr Salcedo stayed at the appellant's house overnight. The following day, he and the appellant flew together to Perth, where they stayed at a city hotel.[49]
(l)This second visit to Perth occurred in September 2018. The appellant provided Mr Salcedo with the keys to the unit. Together, they went to the unit. While inside the unit, Mr Salcedo counted Australian banknotes in denominations of $50 and $100 using a money‑counting machine. He estimated that there was about $55,000 in total. He then placed the money inside an esky.[50] When he did so, Mr Salcedo saw rectangular‑shaped packages which contained white crystals that he referred to as 'meth'.[51]
(m)About two days after Mr Salcedo and the appellant went to the unit, the appellant left to go overseas.[52]
(n)About four days later, Mr Salcedo met Ms Ta in the parking lot of the complex in which the unit was situated 'to pick up money'.[53] Mr Salcedo met Ms Ta in the parking lot three or four more times in October 2018. According to Mr Salcedo, Ms Ta would take from the back of her vehicle, a Kluger, money and 'meth'.[54]
(o)Mr Salcedo was shown covertly‑recorded videos and still photographs taken on 28 and 29 October 2018 outside the unit in which he identified the appellant and himself.[55]
(p)Mr Salcedo was shown a still photograph which was covertly taken by police of him and the appellant on 30 October 2018. Mr Salcedo confirmed that he was carrying a bag. He said that the bag contained cash.[56]
(q)Mr Salcedo was shown some video footage and still photographs covertly taken by police at the unit on 31 October 2018. He identified himself and the appellant. Another video clip taken that day showed the appellant, Mr Salcedo and Ms Ta inside a taxi.[57] Mr Salcedo recalled that he sat in the back seat behind the driver and that next to him was Ms Ta. He said that he passed a bag of cash to her in the taxi.[58]
(r)Mr Salcedo was shown photographs covertly taken by police on the morning of 1 November 2018 at the unit. One of the photographs, he said, showed the appellant carrying a FoodSaver.[59] Mr Salcedo said that the FoodSaver was used by him (Mr Salcedo) 'to wrap the money'.[60]
(s)Mr Salcedo communicated with the appellant via text message on occasions.[61] Mr Salcedo identified a series of text messages which were exchanged between the appellant and Mr Salcedo between 5 November 2018 and 14 November 2018: exhibit 32.[62]
[48] ts 274.
[49] ts 274 - 275.
[50] ts 276 - 277.
[51] ts 282.
[52] ts 283 - 284.
[53] ts 284.
[54] ts 284.
[55] ts 290 - 295.
[56] ts 296 - 297.
[57] ts 300 - 301.
[58] ts 301.
[59] ts 302.
[60] ts 303.
[61] ts 304.
[62] ts 304 - 306; exhibit 32. These text messages are also incorporated in exhibit 34 and are summarised at [46], [54] and [55] above.
Defence counsel for Mr Tran did not cross‑examine Mr Salcedo. However, defence counsel for the appellant cross‑examined Mr Salcedo at some length. This cross‑examination included the following:
(a)Mr Salcedo confirmed that the appellant gave him the keys to the unit and left him in charge of valuable drugs and lots of cash despite having met him for the first time in June 2018 and not being able to communicate with him other than in broken English.[63]
[63] ts 309 - 310.
(b)Mr Salcedo agreed that he had been given a reduction of 2 1/2 years from his sentence in exchange for giving evidence against the appellant in circumstances where, if he fails to do so, he will probably have to serve that 2 1/2 years' imprisonment.[64]
[64] ts 310 - 311.
(c)When asked why he came to Melbourne in June 2018, he responded, 'I wanted to make money'.[65]
[65] ts 312. See also ts 315.
(d)Mr Salcedo agreed that he told the author of the pre‑sentence report prepared for his sentencing that he had travelled to Australia to meet the appellant and to ask him for his blessing to marry his daughter. When he was asked why he had not mentioned this in his evidence, he explained, 'That was more secondary to the purpose of why I was really coming'.[66] Mr Salcedo agreed that he made no mention of this in a statement to police that he made in August 2019.[67]
[66] ts 315.
[67] ts 316.
(e)Mr Salcedo agreed that during his sentencing proceedings his lawyer told the sentencing judge that Mr Salcedo came to Melbourne in 2018 to attend some seminars. When asked if this statement was true or false, Mr Salcedo said, 'That one's true as well'.[68]
[68] ts 316.
(f)Mr Salcedo agreed that in his police statement in August 2019 he said that he came to Perth 'to party'.
(g)When asked by defence counsel to explain the reasons he came to Australia, Mr Salcedo said:[69]
[69] ts 317.
All right. I came here to make money. I had a lot of time to kill, a lot of time in my hand [sic] so I ended up searching things on Google, I wanted to do things on Amazon and all of that I did some bad stuff, I did, that you just mentioned. My infidelity.
(h)Mr Salcedo admitted that when he came to Australia in September 2018 he knew that he would be engaged in criminal activity which involved the appellant.[70] He agreed that he wanted to obtain money illegally in Australia and then take it back to Canada where he would live with the appellant's daughter.[71]
[70] ts 318.
[71] ts 318.
(i)Mr Salcedo agreed that Ms Ta was the person he mostly dealt with in relation to his illegal activities between June and 15 November 2018.[72] Mr Salcedo said he was 'on good terms' with Ms Ta.[73]
[72] ts 318.
[73] ts 319.
(j)Mr Salcedo confirmed that when he and the appellant first visited Perth in June 2018, he took a bag of cash to the unit and placed it in the esky.[74] Defence counsel then showed him a copy of the statement he made to police in August 2019. Mr Salcedo agreed that he wrote in his statement that the appellant had put the cash inside the lining of the esky. When asked about the alleged inconsistency between his testimony to the jury and the statement on this point he said, in effect, that he had not properly memorised what was in his statement, but that at the time he gave his evidence his best memory was that he (Mr Salcedo) had put the cash in the lining of the esky.[75]
[74] ts 320.
[75] ts 321 - 323.
(k)Mr Salcedo denied that he had changed his evidence because he understood there was no forensic evidence against the appellant or that his account of events may not fit other evidence presented at the trial.[76]
[76] ts 323.
(l)Mr Salcedo said that he returned to Australia from Canada after visiting Perth in June 2018 because he 'wanted to make more money'.[77] Mr Salcedo agreed that he had not said anything to this effect in his statements or in his conversation with the prosecutor prior to the trial.[78] Mr Salcedo said that he assumed that his statement was final.[79]
[77] ts 325.
[78] ts 325.
[79] ts 325.
(m)During the second occasion Mr Salcedo visited Perth, the appellant travelled to Vietnam by himself.[80] While the appellant was away, Mr Salcedo agreed 'other people' used to go in and out of the unit. He was not asked, at this point, who these 'other people' were. Immediately after his agreement to the proposition that 'other people' went to or from the unit, he agreed that he and Ms Ta went to the unit a number of times while the appellant was in Vietnam.[81]
[80] ts 328.
[81] ts 328.
(n)Mr Salcedo agreed that there was an occasion on which he was given a key to the unit at a dinner with Ms Ta in which two other men appeared at the Okay Restaurant on 6 October 2018 while the appellant was in Vietnam.[82] Mr Salcedo did not say who gave him the key on this occasion. It was not squarely put to him that his earlier testimony that the appellant had given him a key to the unit was wrong.
[82] ts 328 - 329.
(o)Mr Salcedo agreed that he and Ms Ta went to the unit together on 19 October 2018 while the appellant was in Vietnam. On this and other occasions Mr Salcedo agreed that he and Ms Ta went to the unit to 'facilitate the arrangement of collecting or dropping off drugs and cash'.[83]
[83] ts 329.
(p)Mr Salcedo agreed that there was an occasion when he and Ms Ta went to the unit together and she took cash with her and left drugs behind.[84]
[84] ts 330.
(q)Mr Salcedo agreed that from September 2018 onwards he had dealings with Ms Ta and that she was the person who would tell him when to go to the unit, when to pick things up, when to drop things off and what was coming. He agreed that she was the person he answered to and that she always used a Kluger vehicle.[85]
[85] ts 330.
(r)Mr Salcedo agreed that he had a conversation with the appellant in or about June 2018 about involvement in a seafood and meat importing business.[86] Mr Salcedo agreed that any such business would have to be run as a cash business, having regard to Australia's immigration rules and income tax implications.[87] Mr Salcedo denied that he and Ms Ta made the appellant think that the cash at the unit was connected with an importing business and not drugs.[88]
(s)Mr Salcedo again agreed that other people had access to the unit apart from him and the appellant.[89] These other people included a person Mr Salcedo called the landlord.[90] He also agreed that he did not know who exactly had access to the unit at various times.[91] Mr Salcedo further agreed that any drugs or cash that was stored in the unit was hidden and that it would not be obvious to someone who just walked into the unit.[92]
(t)Mr Salcedo accepted that on occasions Ms Ta would bring or take cash to and from the unit and sometimes would bring, hide and take drugs to, in and from the unit.[93]
(u)Mr Salcedo denied that he had told so many lies that he did not know 'when to stop and when to start'.[94]
(v)Mr Salcedo agreed that he lied to police when he said that, while he may have touched the money‑counting machine, he never actually used it.[95] He also agreed that he had told the police that he did not know who it was who gave him the key to the unit, but in his testimony he said, in substance, that he now knew it to be the appellant.[96]
(w)Mr Salcedo confirmed that he used the FoodSaver machine in the unit. He denied that he bought the machine with Ms Ta's money.[97]
(x)Mr Salcedo accepted that, at the time of his arrest on 15 November 2018, he was conscious of not 'dobbing' Ms Ta in because she was effectively his boss.[98]
(y)Mr Salcedo denied making up a story against the appellant to receive a reduced sentence, aware that he (Mr Salcedo) had been caught red‑handed.[99]
Re-examination of Mr Salcedo
[86] ts 331.
[87] ts 332.
[88] ts 333.
[89] ts 340.
[90] ts 341.
[91] ts 340.
[92] ts 340.
[93] ts 342.
[94] ts 344.
[95] ts 344.
[96] ts 344.
[97] ts 345.
[98] ts 348.
[99] ts 349.
Mr Salcedo's re‑examination included the following:
(a)His recollection was that in September 2018, the appellant put the cash in the esky.[100]
(b)Mr Salcedo confirmed that there was an occasion when he counted cash with Ms Ta at the unit. This was a different occasion from the time he counted money with the appellant.[101]
(c)Mr Salcedo did not commence any business in Perth which produced cash between September and November 2018.[102]
(d)The FoodSaver machine found by police at the unit on 15 November 2018 was the machine that the appellant was photographed by police carrying into the unit.[103]
Appellant's video record of interview
[100] ts 350.
[101] ts 350 - 351.
[102] ts 351.
[103] ts 351.
In the appellant's video record of interview made 17 November 2018, the statements made by the appellant included:
(a)He did not know anything about the shipment of methylamphetamine from Melbourne to Perth.
(b)He had previously been to Perth two or three times to visit friends. Initially he told police that he had stayed at the Casino, but later said that he stayed elsewhere.
(c)One of the keys he possessed was for his son‑in‑law's unit which he said was situated at Unit 41, 11 Regal Street, East Perth.
(d)The two sets of keys had been given to him by Mr Salcedo, but he did not remember what they were for.
(e)He agreed that he had spoken to Ms Ta, who he only knew as 'Princess', and that she referred to him as 'Bro Ba'.
(f)Initially, he denied ever being to the complex at 60 Forrest Avenue, East Perth, but later said that he had walked to this location without ever entering the complex or the unit.
(g)He said that he did not remember sending a text message to Ms Ta telling her to turn off her mobile telephone and take her SIM card out.
(h)He was paid by his niece $19,000 or $20,000 a year cash for his work as a nail technician; he received approximately $200,000 from Vietnam for the purpose of purchasing a business in Australia and he had won sums of money at the Casino which he deposited in his bank account.
Essentially, the appellant denied a connection with any enterprise involving prohibited drugs.
Ground of appeal
The ground of appeal as particularised is as follows:
In relation to counts one to four, the guilty verdicts of the jury are unreasonable or cannot be supported on the evidence.
Particulars
(a)No or no sufficient evidence was led as to the appellant's possession of the drugs or money, located at Unit 41, Forrest Avenue ('the Unit') on 15 November 2018;
(b)the telephone intercepts were incapable of supporting the requisite only reasonable inference of knowledge, possession and/or control of the drugs or money at the Unit on 15 November 2018, to the standard necessary to prove the appellant's guilt beyond reasonable doubt.
Legal principles
The legal principles governing the ground of appeal are well known. The leading authority remains M v The Queen.[104] These principles have been explained in several High Court decisions including SKA v The Queen;[105] R v Baden‑Clay;[106] Pell v The Queen[107] and most recently in Dansie v The Queen.[108] The relevant legal principles were summarised in Wells v The State of Western Australia as follows:[109]
[104] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495.
[105] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [11] ‑ [14].
[106] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [65] ‑ [66].
[107] Pell v The Queen [2020] HCA 12;(2020) 268 CLR 123 [37] ‑ [39].
[108] Dansie v The Queen [2022] HCA 25 [8] ‑ [10].
[109] Wells v The State of Western Australia [2017] WASCA 27 [13] ‑ [14].
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden Clay 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 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. (citations omitted)
Section 3(1) of the Misuse of Drugs Act provides that, in the Act, unless the contrary intention appears, 'to possess' includes 'to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings'.
In Fenn v The State of Western Australia,[110] this court said that where an accused is charged, as the appellant was in this case, as a principal offender under s 7(a) of the Criminal Code, with possessing a prohibited drug with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA, and putting aside for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had in his or her physical custody, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MDA;
(c)the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MDA; and
(d)(unless the presumption in s 11(a) of the MDA applies), the accused intended to sell or supply to another at least some of the substance or thing.
[110] Fenn v The State of Western Australia [2020] WASCA 134 [64].
The court in Fenn then explained that the State must, as to the issue of knowledge of the accused, prove beyond reasonable doubt that:[111]
(a)the accused had at least an awareness of or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing; and
(b)the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug' within the ordinary and natural meaning of that term.
[111] Fenn [65].
It is established that possession of a prohibited drug for the purposes of s 6(1)(a) of the MDA need not be solely by, or exclusive to, one accused. Two or more accused can jointly possess a prohibited drug at the same time, even though only one accused has the drug in his or her actual physical possession at the relevant time.[112]
[112] Fenn [66].
The metes and bounds of the term 'possess' in s 563A(1)(b) of the Criminal Code is not an issue in this appeal. The term 'possession' is defined in s 1 of the Criminal Code to include 'having under control in any manner whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing or property in question'. It is enough for present purposes to state that to 'possess' money or other property it is necessary for the State to prove that the accused had knowledge of the money or other property and exercised control over it either solely or with another or others. It is not necessary that the accused has actual possession or custody of the item.
The appellant's submissions
The appellant submitted, in effect, that it was not open to the jury to find that the only reasonable inference available on the evidence was that the appellant possessed the prohibited drugs the subject of counts 1 to 3 and the cash the subject of count 4. In effect, it was submitted that the appellant had no knowledge of the prohibited drugs and cash and did not exercise any control or dominion over them.
The appellant submitted, in effect, that there was a reasonable possibility, not excluded by the evidence, that Ms Ta was the 'Mrs Big' of the drug enterprise and that it was she, and not the appellant, who had orchestrated and possessed the prohibited drugs and the cash the subject of the counts in the indictment. Put broadly, the appellant submitted that he was not connected with the prohibited drugs or the cash.
The appellant's written submissions placed considerable emphasis upon what are asserted to be 'evidentiary deficiencies' in the State's case arising from the evidence of Mr Salcedo[113] and the telephone intercepts.[114]
[113] Appellant's case [22] - [26].
[114] Appellant's case [27].
It was submitted that Mr Salcedo's evidence alone could not support the convictions.[115] It was said on behalf of the appellant that Mr Salcedo gave no evidence about the appellant's knowledge or involvement in the drugs and cash seized on 15 November 2018[116] and that there were 'insufficiencies' in the State's case arising out of Mr Salcedo's evidence,[117] including:
(a)On one version of Mr Salcedo's evidence he obtained the key to the unit not from the appellant, but from 'two Asian blokes at the Okay restaurant'.
(b)From September 2018 onwards, Mr Salcedo took all instructions from Ms Ta, and that 'the only person [Mr Salcedo] was dealing with in October and November 2018, was Ms Ta'.
(c)Mr Salcedo did not know the identity of all of the people who had access to the unit.
(d)Relying upon the intercepted conversation between Mr Salcedo and Ms Ta on 20 October 2018,[118] it is asserted that the organisation and adjustment of accounts were matters between Mr Salcedo and Ms Ta and did not involve the appellant.
(e)Mr Salcedo used the FoodSaver machine to vacuum‑seal cash upon Ms Ta's instruction.
[115] Appellant's case [26].
[116] Appellant's case [22].
[117] Appellant's case [24].
[118] See [44] above.
As for the telephone intercept evidence, the appellant submitted that having regard to the allegedly 'dubious' translations of the relevant text messages from Vietnamese to English and their content generally, they do not, 'taken as a whole', rise above 'mere suspicion'. The 'interpretational and inferential problems' were described in the appellant's case as follows:[119]
(a)for one example, the actual word 'percentage' (whether of drugs or something else) was not in the actual message, and had been added by the State's interpreter without explanation (Ex 34, call 60; t 437 - 438);
(b)the intercepts of the appellant's phone took place over several months and numbered in the thousands but only a handful were produced (t 469). For instance, Dep Ta called the appellant to say that she was driving from Melbourne to Perth and was at the halfway mark (Adelaide) on 13.11.18 (Ex 34, phone call 65). This was of course a lie, given that she had in fact flown to Perth on 15.11.18 (Ex 34, texts 74, 75). This (deception) is entirely inconsistent with the appellant having/exercising knowing control or organisation of the disposition of drugs/money as at 15,11.18 [sic]. Even as at 14.11.18, the appellant thought Dep Ta was driving over, and had asked Salcedo to tell 'her' to ring him (Ex 34; texts 73, 74) - which call never eventuated. No further intercepts of the appellant's phones were offered by the State; inconsistent with the proposition, that he was an organiser exercising relevant control as at 14.11.18 onwards, had knowledge of what was happening on 15.11.18, and then voluntarily decided to fly to Perth on 17.11.18 straight into the arms of welcoming police;
(c)the prior organisation of the car was ostensibly controlled by Dep Ta with driver Tran (Ex 34, call 1). She followed this up by flying to Perth to collect the drugs. There was no evidence linking any communications between driver Tran and the appellant, at any time;
(d)leaving to one side the methylamphetamine in the car with Dep Ta in the carpark‑meeting with Salcedo as discussed above (Count 1), Salcedo never once attributed the acquisition and control of drugs/money in the unit to the appellant. Nor was there anything in Ex 34 that amounted to cogent proof of those matters beyond reasonable doubt. On the state of the evidence, the drugs/money the subject of Counts 2 to 4 arrived in the unit on an unknown date, was taken in by an unknown person, and was guarded by an unknown person, all incommunicado with the appellant in Melbourne, in circumstances where multiple other persons relevantly had keys to the unit and had even (on Salcedo's evidence) exercised actual entry (t 328-329). Even if mere suspicion, say rising even to knowledge, of the existence of drugs/money at the unit on 15.11.18 could be attributable to the appellant, that would fall short of proving knowing possession such as to sustain a conviction;
(e)the one person who could possibly have shed light on the timing, context and content of the text messages/calls, was Salcedo - but the State specifically declined to ask Salcedo any questions about it, saying it would be led through the investigating officer - but which it eventually was not (t 306). (citations omitted)
[119] Appellant's case [27].
In the appellant's supplementary written submissions, the appellant pointed out that there was no evidence that the appellant had ever been in communication with Mr Tran or had any knowledge of his involvement in the commission of count 1. Further, it was submitted that the State's case as to the use of code words in the text communications between the appellant and Ms Ta on 2 and 3 November 2018 solely relied upon the evidence of Detective Roberts, the implication being that this evidence was somehow insufficient. The appellant also contended that the exchange of text messages between the appellant and Ms Ta on 2 and 3 November 2018 were only a small percentage of the communications intercepted by the police and that there was no sufficient context to the communications. Moreover, it was said that there was nothing in the text messages exchanged on 2 and 3 November 2018 to connect the appellant with the drugs found in the Kluger on 15 November 2018.
It was also submitted that even if the intercepted communications showed that the appellant was aware of the involvement of Mr Tran, Ms Ta and Mr Salcedo in count 1, they were incapable of proving beyond reasonable doubt that the appellant controlled the prohibited drugs and money and intended to control the prohibited drugs and money the subject of counts 2, 3 and 4.
The respondent's submissions
The respondent submitted that the appellant's submissions in support of the sole ground of appeal 'fundamentally misconceive the nature of the State's case' having regard to its 'piecemeal reliance upon "insufficiencies" in Salcedo's evidence, and, separately, the "deficiencies" in the telephone intercept evidence, in isolation from each other and the evidence at trial as a whole'.[120]
[120] Respondent's answer [34].
The respondent submitted that a consideration of the evidence as a whole established that the only reasonable inference was that the appellant had knowledge of, and dominion and control over, the prohibited drugs and the cash.[121]
[121] Respondent's answer [39].
It was submitted that the evidence established that:[122]
(a)The appellant, Ms Ta and Mr Salcedo were together engaged in the business of drug dealing, including the interstate transportation of prohibited drugs from Victoria to Perth, and the use of the unit to store drugs and cash derived from the sale or supply of drugs.
(b)The appellant was in the position of authority in relation to Ms Ta and Mr Salcedo.
(c)The interchange of messages and calls between the appellant and Ms Ta and the appellant and Mr Salcedo compels the only logical inference that the appellant ordered Ms Ta to import the methylamphetamine the subject of count 1 into Western Australia and that he gave Mr Salcedo directions as to its receipt and Ms Ta's payment.
(d)The unit was being used to store both drugs and large sums of cash. The evidence showed that the appellant regularly accessed the unit, including on four consecutive days from 28 October 2018 to 1 November 2018. On 1 November 2018, the appellant could be seen taking a FoodSaver box into the unit.
(e)The appellant had independent access to the unit. He had a key to the unit. The appellant was able to and did access the unit without the assistance of Mr Salcedo or the landlord. The appellant took Mr Salcedo to the unit for the first time in about June 2018, and used his own key to enter the unit. The appellant gave Mr Salcedo a key to the unit.
[122] Respondent's answer [37].
Disposition
As already stated, the decisive issue for determination at the appellant's trial was whether the State had proved beyond reasonable doubt that the appellant jointly possessed the 2.875 kg of methylamphetamine found in the centre console of the Kluger on 15 November 2018 (count 1) and the 247.68 g of methylamphetamine (count 2), the 527.3 g of heroin (count 3) and the $361,000 in cash (count 4) discovered by the police in the unit on 15 November 2018.
At the time of the seizure of the prohibited drugs and the cash in East Perth, the appellant was in Victoria. Self‑evidently, he did not have physical custody of these items. The State's case was that the appellant, as the coordinator and organiser of a commercial drug syndicate, knowingly had the capacity to exercise and intended to exercise control or dominion over the prohibited drugs and the cash.
The State's case against the appellant was circumstantial. Thus, the State was required to prove beyond reasonable doubt that the only reasonable inference open on all of the evidence relevant to each count was that the appellant jointly possessed the relevant prohibited drug or, in the case of count 4, the cash.
This court's task in analysing the State's circumstantial case is not to evaluate the evidence in a piecemeal fashion. As explained in R v Hillier,[123] it is of critical importance in considering a circumstantial case that all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
[123] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46].
While it will be necessary to consider specific aspects of the evidence, we do so always mindful that it is the combined effect of all the evidence that is crucial in the analysis of the ground of appeal.
On the unchallenged evidence adduced at trial it was established that between 13 and 15 November 2018, the methylamphetamine the subject of count 1 was transported by road from Melbourne to Perth in a Kluger vehicle driven by Mr Tran. Ms Ta was plainly knowingly involved in this operation. She hired the Kluger at Tullamarine Airport and, it may be inferred, she arranged for the drugs to be secreted in the vehicle and for Mr Tran to drive it to Perth.
On 15 November 2018, Ms Ta flew from Melbourne to Perth. Upon arrival, she took a taxi to the Rendezvous Hotel where she met with Mr Tran and took delivery of the Kluger and its contents. She then drove the vehicle to the unit, where she was met by Mr Salcedo. There can be no doubt that their meeting at the unit was pre‑arranged. After Mr Salcedo opened the gate to the complex at 60 Forrest Avenue, East Perth, and Ms Ta drove into the carpark, police officers intervened, arresting both Ms Ta and Mr Salcedo. Shortly after, the police discovered 2.875 kg of methylamphetamine hidden in the centre console. The police then located the prohibited drugs the subject of counts 2 and 3 and the cash the subject of count 4 in the unit.
It is readily apparent that the importation of the methylamphetamine the subject of count 1 from Melbourne to Perth occurred as a result of a well‑organised, coordinated and pre‑arranged plan, which involved the sourcing of the methylamphetamine in Victoria, the transportation of it to Perth and its delivery to a safe house. This plan involved Ms Ta, Mr Salcedo and, to the extent that he drove the vehicle which contained the drugs to Perth, Mr Tran.
Leaving to one side for the moment the content of the intercepted communications, it is clear from them that the appellant was in contact with both Ms Ta and Mr Salcedo during the period of the electronic surveillance. It is also apparent from the covert surveillance evidence and from the evidence of Mr Salcedo that the appellant met with, and was in the company of, Mr Salcedo in Perth on a number of occasions, including at the unit, in the same period. It was not seriously challenged at trial that Mr Salcedo also met with the appellant and Ms Ta in Melbourne, and that Mr Salcedo met with Ms Ta in Perth. They also spoke by phone on 20 October 2018. On 31 October 2018, the appellant, Ms Ta and Mr Salcedo met and travelled together in a taxi.
On our analysis, the evidence shows that the appellant recruited Mr Salcedo in Melbourne, they travelled to Perth together in June 2018, and that they met again in Perth in September, October and November of that year. The last meeting occurred about two weeks before the arrival in Perth of the methylamphetamine the subject of count 1. The covert surveillance evidence shows that the appellant, both alone and in the company of Mr Salcedo, visited the unit on consecutive days between 28 October 2018 and 1 November 2018. On 1 November 2018, the appellant attended at the complex at Forrest Avenue, East Perth, and entered the unit carrying a box with a picture of a FoodSaver on it. As Detective Senior Constable Roberts explained, methylamphetamine is commonly packaged in a FoodSaver heat‑sealed bag. The unit itself was clearly a drug safe house which contained, on 15 November 2018, all of the common indicia of prohibited drug distribution. There is nothing to indicate that it was used as a place to live. The appellant was well aware of its existence and purpose.
The intercepted communications were an important part of the case against the appellant. Before dealing with their content, it is necessary to address the question of the accuracy of the translations provided by Mr Hue Nguyen.
The appellant made much of the 'interpretational' problems of the text messages between the appellant and Ms Ta which were written in Vietnamese. In our view, the appellant's submissions on this point have no merit.
At trial, the State relied upon the translations from Vietnamese into English made by Mr Hue Nguyen. There was no challenge at trial to Mr Hue Nguyen's expertise. It is clear that he possessed the qualifications and experience to enable him to translate the relevant text messages. In his evidence, Mr Hue Nguyen explained his approach to the task of translating the text messages from Vietnamese into English. It is not suggested by the appellant that his approach was inapt for the task. The main focus of the appellant's attack on Mr Hue Nguyen's evidence was as to its accuracy.
The basis for the attack on Mr Hue Nguyen's testimony was thin, to say the least. The appellant pointed to Mr Hue Nguyen's translation of text message 60 referred to at [48] above and noted that, in one of the two alternative translations provided by Mr Hue Nguyen, he included the English word 'percentage' when, as Mr Hue Nguyen accepted in his evidence, the Vietnamese equivalent did not appear in the original text message. The implication of the appellant's submission appears to be that the inclusion of the word 'percentage' impugned the accuracy of Mr Hue Nguyen's translation of message 60 and also the accuracy of his other translations.
Even if Mr Hue Nguyen's translation of message number 60 was, in some way, inaccurate, it does not establish that his interpretation of other text messages was also inaccurate. However, we do not regard Mr Hue Nguyen's use of the word 'percentage' to be problematic of the accurate translation of message 60.
As noted in [48] above, message 60 was part of a discussion between the appellant and an unknown person about the appearance, consistency and purity of what appears in context to have been methylamphetamine. This discussion included reference to whether the substance was in a 'crumbled', 'crumpled' or 'crushed' form. In this context, message 60 is, in substance, an inquiry by the appellant to the unknown person of the proportion of the substance which was in these forms. Against this background, the use of the English word 'percentage' by Mr Hue Nguyen is appropriate.
Furthermore, in respect of all of the text messages which required translation from Vietnamese into English, and where the appellant's interpreter, Mr Tam Nguyen, provides a translation of a text message, there is, in substance, no material difference between his interpretation and that of Mr Hue Nguyen. The translations of Mr Tam Nguyen appear to provide some support for the accuracy of the translations made by Mr Hue Nguyen.
Contrary to the submissions of the appellant, we see no reason to doubt the accuracy of Mr Hue Nguyen's translations of the text messages between the appellant and Ms Ta.
We now turn to the content of the intercepted communications, including the text messages between the appellant and Ms Ta.
On our analysis of the intercepted communications, not all of them appear to clearly relate to drug trafficking. For example, messages 26 and 27 refer to a 'Hui' scheme. Under cross‑examination, Mr Hue Nguyen explained what a Hui scheme was.[124] The nature or existence of a Hui scheme appears to have no relevance to the existence of any drug trafficking enterprise between the appellant and Ms Ta.
[124] ts 430 - 431.
Another example is the intercepted telephone conversation between Ms Ta and Mr Salcedo on 20 October 2018 ([44] above). In the course of the conversation, various numbers are mentioned. It is unclear what these numbers relate to. While there is a suspicion they relate to some kind of illicit activity, apart from showing that Ms Ta and Mr Salcedo were in contact with each other we are unable to conclude that the conversation is about drug trafficking. If, as the appellant contends in his submissions to this court, the conversation is about an 'organisation and adjustment of accounts',[125] it is not clear what the 'accounts' relate to.
[125] Appellant's case [24(d)].
The text messages exchanged between the appellant and Ms Ta between 2 and 3 November 2018 ([45] above) and 5 and 11 November 2018 ([47] above) should be read together.
Having regard to the evidence of Detective Senior Constable Roberts and to the content of the messages themselves, it is clear that these exchanges use code words. Contrary to the submission of the appellant, we can see no reason why his evidence on this point should not have been accepted. In particular, the word 'food' does not, in the context in which it is used, have its ordinary meaning and appears to refer to a prohibited drug, most likely methylamphetamine. The word 'paper' plainly refers to cash.
It is clear that both exchanges primarily concern the sourcing by Ms Ta of methylamphetamine from someone who has, in the past, to the knowledge of her and the appellant, provided them with the prohibited drug.
In the exchange between 2 and 3 November 2018, it is apparent that the appellant wanted Ms Ta to source methylamphetamine which is similar in consistency and colour to methylamphetamine which the source has provided them in the past. It is also apparent that at least some of the methylamphetamine acquired in the past had been brought to Perth. This is consistent with the evidence of Mr Salcedo who spoke of Ms Ta being in Perth with cash and drugs.
It appears from the text messages of 2 and 3 November 2018 that the appellant and Ms Ta are acting cooperatively and that they have previously acted together to obtain methylamphetamine. It is to be noted that in message 4 Ms Ta asks the appellant, 'So what should be done now bro Ba (Bro 3)?'. The asking of the question suggests deference on the part of Ms Ta towards the appellant.
In the series of text messages exchanged on 5 November 2018, the appellant sent a number of text messages to Ms Ta (messages 31 to 40) concerning the consistency and colour of the methylamphetamine. At one point, he instructs Ms Ta (message 34), 'The crumbled one will be taken to Per'. The reference to 'Per' is plainly a reference to Perth. Message 46, which is a text message sent by Ms Ta to the appellant, appears to suggest that the appellant was himself, in addition to Ms Ta, sourcing methylamphetamine to send to Perth.
This is borne out by the text messages exchanged between the appellant and an unknown person on 12 November 2018 as summarised at [48] above, which culminate in the appellant stating to the unknown person, 'I'm going to take one', adding, 'Testing should be done first'. In context, these text messages are to be understood as the appellant informing the unknown person that he will acquire methylamphetamine on the basis that it must be tested before delivery to ensure no doubt that it is, in fact, what the appellant ordered.
Later on 12 November 2018, the appellant instructed Ms Ta by text message that she 'must go this evening'. This text message is clearly an instruction from the appellant to Ms Ta to begin the transport of the methylamphetamine they had acquired to Perth that evening. The giving of such an instruction suggests that the appellant had, at least, a measure of authority over Ms Ta.
It is apparent from the intercepted telephone conversation between Ms Ta and the appellant on the morning of 13 November 2018 (see [50] above) that the appellant was seeking confirmation from Ms Ta that she had left Melbourne and had passed Adelaide. In context, it is clear that the appellant believed that Ms Ta herself was in a vehicle driving towards Perth. Ms Ta, falsely, informed the appellant that she left 'at around midnight'. Later on 13 November 2018, the appellant sent the text message referred to in [52] above, instructing Ms Ta to 'switch the phone off and remove the SIM'.
The telephone conversation and the text message referred to in the previous paragraphs, when read in light of the text messages that had been exchanged between the appellant and Ms Ta since early November 2018, show that the appellant was aware of and coordinating the transport of methylamphetamine from Melbourne to Perth. The illicit purpose of the trip is evidenced from the instruction given to Ms Ta to switch off her mobile phone and remove its SIM. It may be inferred that the appellant gave this instruction in order to prevent Ms Ta's mobile telephone being monitored or tracked by law enforcement officers.
The unchallenged evidence shows that, contrary to the statement Ms Ta made to the appellant, Ms Ta did not travel by road with the methylamphetamine to Perth. Rather, unknown to the appellant, she hired the Kluger and arranged for Mr Tran to transport the methylamphetamine to Perth.
The fact that Ms Ta did not tell the appellant about the involvement of Mr Tran, and that she misled the appellant into believing that she was driving from Melbourne to Perth, does not lead to an inference that the operation was being controlled solely by Ms Ta. In substance, the evidence established that the appellant and Ms Ta were both engaged in an operation to bring methylamphetamine from Melbourne to Perth. The plan was for the methylamphetamine to be transported by road. While it appears that the appellant believed that Ms Ta would herself be involved in the transportation of the methylamphetamine in this manner, the fact that Ms Ta arranged for Mr Tran to do the driving does not mean that the appellant had no knowledge of or involvement in the enterprise. This proposition is contradicted by the other evidence adduced at the trial, including the intercepted communications. It should be inferred that Ms Ta retained Mr Tran to drive the Kluger to Perth to minimise the risk to her of detection and apprehension by law enforcement authorities as the methylamphetamine was transported by road across Australia.
It should also be inferred that Ms Ta did not inform the appellant that she had retained Mr Tran to drive the Kluger because she expected that he would not agree with the retention of Mr Tran. This explains why there were no communications between the appellant and Mr Tran.
The appellant's knowledge of the transportation of the methylamphetamine to Perth is reinforced by the text messages between the appellant and Mr Salcedo on 13 and, particularly, 14 November 2018 (see [54] and [55] above).
The text message sent by the appellant to Mr Salcedo on 14 November 2018 which stated, 'Taxi come', can, in context, only mean that the vehicle transporting the methylamphetamine was on its way to Perth and would arrive that day. When the delivery was not made, the appellant instructed Mr Salcedo to 'tell her ring me'. The reference to 'her', in context, can only be a reference to Ms Ta. The appellant was also concerned to instruct Mr Salcedo to have cash ready. Again, in context, it may be inferred that the cash the appellant was referring to was the proceeds of sale of prohibited drugs. In this regard, it will be recalled that on 15 November 2018, the police found $361,000 in cash in the unit.
On our analysis of all the text messages, they clearly point to the appellant and Ms Ta both being involved in an arrangement which culminated in the transportation of the methylamphetamine the subject of count 1 from Melbourne to Perth. The appellant plainly knew that the methylamphetamine was being transported by road to Perth. While it appears that he was not aware of Mr Tran's involvement, the plan which was agreed to by him and Ms Ta was, in substance, executed as the appellant had intended. That is, the methylamphetamine would be transported by road to Perth where it would be delivered to Mr Salcedo. While the telephone intercept material shows that Ms Ta played a significant role in the enterprise, it also shows that the appellant was also deeply involved and appears to have had at least some measure of authority over Ms Ta.
There is no merit in the submission that there was no sufficient context to the intercepted communications. Having regard to the evidence of Detective Senior Constable Gardiner reproduced at [57] above, the only relevant communications were those adduced at trial.
We now turn to the evidence of Mr Salcedo. As the appellant submits, Mr Salcedo's evidence alone cannot support the convictions.[126] However, it was not the State's case at trial that Mr Salcedo's evidence alone was capable of establishing the appellant's guilt. The State's case at trial was that all of the evidence adduced by the State, including Mr Salcedo's evidence, established the appellant's guilt. The appellant's analysis of Mr Salcedo's evidence (and the intercepted communications) in this court reveals a piecemeal approach to the evidence, inconsistent with the approach mandated by Hillier.
[126] Appellant's case [26].
It was not seriously disputed at trial that Mr Salcedo met the appellant in June 2018 and within days of that meeting, travelled to Perth with the appellant. Mr Salcedo said that in June 2018, while he and the appellant were in Perth, he took a large amount of cash to the unit and stored the cash at the unit. He did this in the company of and at the direction of the appellant. The appellant opened the door to the unit with a key he had. Nor was it seriously challenged that after travelling to Perth in June 2018, he went to Canada. In September 2018, he returned to Melbourne and stayed with the appellant. While in Melbourne, he met Ms Ta. The appellant and Mr Salcedo travelled to Perth that month. Mr Salcedo was recruited by the appellant to be the storeman in the drug trafficking enterprise. Mr Salcedo agreed to undertake the role for a number of reasons, but, fundamentally, he did so to make money.
Mr Salcedo said that, in September 2018, the appellant gave him a key to the unit. Together, according to Mr Salcedo, they travelled to the unit where he counted money. Mr Salcedo said that he met Ms Ta at the unit in September 2018, and met her three or four times in October 2018. He observed Ms Ta taking money and 'meth' from a Kluger vehicle. The covert surveillance undertaken by police officers showed that between 29 October and 1 November 2018, Mr Salcedo met with the appellant. Mr Salcedo, the appellant and Ms Ta were recorded on CCTV footage in a taxi, together. Mr Salcedo said that he gave a bag of cash to Ms Ta.
The intercepted communications show that between 20 October 2018 and 14 November 2018, Mr Salcedo was in contact with both Ms Ta and the appellant.
In the appellant's submissions, it was said that Mr Salcedo gave inconsistent evidence concerning who gave him the key to the unit. In his examination‑in‑chief, Mr Salcedo said that the appellant gave him a key to the unit in September 2018. According to the appellant, under cross‑examination, Mr Salcedo said that he obtained the key from 'two Asian blokes' while at the Okay Restaurant in Northbridge on 6 October 2018. This was not Mr Salcedo's evidence. The relevant portion of the transcript is as follows:[127]
[127] ts 328 - 329.
I'll take you through some of the dates and you can tell me if this is right. You went there on 6 October you and Dep Ta went there?---Yes.
On that same day you went to the Okay Restaurant in Northbridge?‑‑‑Yes.
On that occasion, two males, both Asian approached you while you were at the table. Correct?---Yes.
One of them - or they both appeared to be - and these are just guesses - they appeared to be around 30 years of age?---Yes.
Okay. One of them was called Tan Tham Lee or Le(?)?---Yes.
Right. And the other one - do you remember the other one's name?---He went by Ray.
Okay. And these two people had been introduced, or introduced themselves as being known to Dep Ta?---No.
Who?---To [the appellant].
It was to Dep Ta, wasn't it?---No.
And on this occasion you were given a key to the unit, weren't you?---Yes, yeah.
So the time you got the key to the unit was on 6 October at the Okay Restaurant. Correct?---Correct.
And you were given the key while [the appellant] was in Vietnam?---Yes.
Right. And from that point on, you were able to access the unit yourself whether or not [the appellant] was with you?---Correct.
It is to be immediately noted that Mr Salcedo did not say that he was given the key to the unit by the two males who approached him and Ms Ta at the Okay Restaurant. However, Mr Salcedo does say that he was given a key to the unit on this occasion. It is uncertain from whom Mr Salcedo was given the key to the unit on 6 October 2018.
This evidence is not necessarily inconsistent with what Mr Salcedo said in examination‑in‑chief. It is possible that Mr Salcedo was given a key to the unit by the appellant in September 2018 and by someone else on 6 October 2018.
The appellant's written submissions assert that a notable aspect of Mr Salcedo's evidence was that he stated that the 'only person' he dealt with in October and November 2018 was Ms Ta.[128] In cross‑examination, Mr Salcedo did not say that in October and November 2018, the only person he dealt with was Ms Ta. Under cross‑examination,[129] Mr Salcedo agreed with the proposition that on a day‑to‑day basis in October and November 2018, he dealt with Ms Ta and that she gave him instructions, but he did not say that she was the only person he dealt with or who gave him instructions. Even if this was the effect of his evidence, it was wrong. It is apparent from the covert surveillance and from the intercepted communications that Mr Salcedo was, during September and November 2018, dealing with the appellant and was taking instructions from him. This is not to say that Mr Salcedo was only taking instructions from the appellant. It is evident that Mr Salcedo was, as already stated, in contact with Ms Ta, and given the close connection between the appellant and Ms Ta, who were together engaged in an ongoing commercial enterprise which involved the transportation of drugs to Perth from Melbourne, it is hardly surprising if Mr Salcedo took instructions from her or that he answered to her, particularly when she was in Perth. The fact that he did so does not mean that he did not also take instructions from the appellant and answer to him. Mr Salcedo's role in the enterprise was subservient to both the appellant and Ms Ta.
[128] Appellant's case [24(b)].
[129] ts 340.
Insofar as Mr Salcedo gave evidence which incriminated the appellant, before that evidence is accepted, it is necessary to take into account that Mr Salcedo obtained a sentencing discount for testifying against the appellant. Further, Mr Salcedo admitted that he lied to police when he said that he had never actually used the money counting machine in the unit.[130] Mr Salcedo also gave a series of different reasons for coming back to Australia in September 2018 and for his return to Perth at around that time. Ultimately, the jury was in a far better position than this court to judge Mr Salcedo's credibility and reliability because they had the advantage of seeing and hearing him testify. Further, insofar as Mr Salcedo implicated the appellant, the covert surveillance evidence and the intercepted communications confirmed material aspects of Mr Salcedo's testimony and showed that he took instructions and direction from the appellant in respect of a large scale commercial drug operation with which the appellant was associated.
[130] ts 344.
It is notable that the appellant travelled to Western Australia on 17 November 2018. The appellant argued at trial that this fact pointed to his innocence because a person who was involved in a drug dealing enterprise of the scale alleged in this case would not risk arrest by travelling to the place where offences may have been committed. For the following reasons, we do not regard the appellant's arrival in Perth on 17 November 2018 as pointing to the appellant's innocence.
There is no evidence that the appellant, prior to his arrival in Perth, was aware that Ms Ta, Mr Salcedo or Mr Tran had been arrested. While it is reasonable to infer that he may well have had a suspicion to that effect, there is no evidence that he knew what had actually happened. Given it is highly unlikely that Ms Ta and Mr Salcedo (who were in police custody) would have been able to contact the appellant after their arrest, the appellant would have been in a state of ignorance as to what had happened to a very valuable consignment of methylamphetamine which, so far as he knew, had left Melbourne and should have been delivered to Mr Salcedo. In these circumstances, a person in a coordinating or managerial role might well travel to Perth to investigate what had happened to the consignment. As the appellant had not played any hands‑on role in the transportation of the methylamphetamine to Perth, a person in the appellant's position may have regarded themselves as far enough removed to plausibly deny involvement in the operation in the event that the actual participants were apprehended by law enforcement authorities. The appellant may also have more confidently made the decision to travel to Perth in the belief that Ms Ta had, as she had been instructed to do, turned off her mobile phone and removed her SIM card.
The appellant was interviewed by police on 17 November 2018 and denied any involvement in the alleged offences. In the course of the interview, the appellant told the Edwards lie. While the appellant admitted knowledge of both Ms Ta and Mr Salcedo in the interview, having regard to the covert surveillance and the intercepted communications, the appellant downplayed his contact with them. Having regard to these matters, it was well open to reject the appellant's denials.
In our opinion, the trial record does not reveal that the verdict of guilty on count 1 was unreasonable. We do not have a reasonable doubt as to the appellant's guilt on count 1. While the appellant did not have the methylamphetamine in his physical custody, he exercised control over the drug in his capacity as a coordinator of the enterprise to transport the drug from Melbourne to Perth. In our opinion, the evidence showed that he, along with Ms Ta, sourced the methylamphetamine. Ms Ta was responsible for its transportation to Perth and she did so, albeit that, without the appellant's knowledge, she arranged for Mr Tran to transport the drug to Perth. It is clear from the intercepted communications, particularly those between 12 and 14 November 2018, that the appellant intended that the drug would be transported to Perth, where Mr Salcedo would take delivery of it. The transaction the subject of count 1 was not isolated. It is apparent from the intercepted communications between the appellant and Ms Ta that they had previously been involved in deliveries of prohibited drugs to Perth.
In our opinion, the only reasonable inference open to the jury was that the appellant knew that the methylamphetamine the subject of count 1 was being delivered to Mr Salcedo, that he exercised control or dominion over the drug, and that he intended to do so. In our opinion, there is no other reasonable inference open to be drawn. In particular, it is not reasonably open to infer that Ms Ta, and not the appellant, possessed the methylamphetamine the subject of count 1.
Having regard to the whole of the evidence, and particularly the physical surveillance and the intercepted communications, it is patently clear that the appellant and Ms Ta were closely associated generally and, in particular, they were closely connected and knowingly involved in the commission of count 1. The only reasonable inference available on all of the evidence adduced at trial was that the appellant possessed the methylamphetamine the subject of count 1. The appellant has not demonstrated that the claimed evidentiary deficiencies in fact exist. The State proved his guilt beyond reasonable doubt.
For these reasons we have concluded that the verdict of guilty on count 1 was not unreasonable or unsupported on the evidence.
We now turn to counts 2, 3 and 4.
We repeat that in each of these counts the key issue for the jury to determine was whether the State had proved beyond reasonable doubt the element of possession and, in the case of the cash, that it was, to the appellant's knowledge, the proceeds of selling or supplying prohibited drugs. The State's case was circumstantial.
The prohibited drugs and cash the subject of counts 2, 3 and 4 were discovered by police during the search of the unit on 15 November 2018 after the arrest of Ms Ta and Mr Salcedo. The appellant was, at this time, in Melbourne and not in physical possession of the drugs and cash. The State alleged that he jointly possessed the drugs and cash with others, including Mr Salcedo. In essence, the State's case was that the drugs and cash were being stored in the unit by Mr Salcedo with the appellant's knowledge and that the appellant had the capacity to exercise and intended to exercise control or dominion over the drugs and cash.
In our opinion, the verdicts of guilty on each of counts 2, 3 and 4 were not unreasonable or unsupported having regard to the combined effect of the following circumstances which, on our analysis of the evidence (in particular, the text messages, the covert surveillance testimony and the testimony of Mr Salcedo), the jury was entitled to find had been proved:
(a)The appellant had an ongoing involvement in a major drug dealing business in the months prior to his arrest in Perth on 17 November 2018.
(b)The appellant's involvement was as the coordinator of the business. Ms Ta played a senior and important role by, amongst other things, assisting in the sourcing of drugs in Victoria, their transportation to Perth and the transportation of cash, being the proceeds of sale of drugs, back to Victoria. Ultimately, however, Ms Ta was subservient to the appellant.
(c)The unit was used by the appellant for the purpose of storing drugs and significant quantities of cash, being the proceeds of the sale of drugs.
(d)The appellant had keys to the unit and accessed it alone and in the company of Mr Salcedo during a period which spanned between June 2018 and 1 November 2018, the last occasion being only about two weeks before the arrest of Ms Ta and Mr Salcedo in the vicinity of the unit. Mr Salcedo said that in September 2018 the appellant gave him a key to the unit.
(e)It was the appellant who recruited Mr Salcedo to act as the storeman of the drugs and cash kept at the unit.
(f)In June 2018, Mr Salcedo, accompanied by the appellant, took a bag of cash to the unit. The appellant had ordered him to pick up and bring the cash with them. At the appellant's instruction, at the unit Mr Salcedo stored the cash in the hollow lining of an esky. The majority of the cash the subject of count 4 was stored in the unit using this method.
(g)In September 2018, the appellant and Mr Salcedo flew from Melbourne to Perth together. They then went together to the unit. The appellant and Mr Salcedo prepared money to be put in an esky. Mr Salcedo counted the money and placed the money in the esky. On this occasion, Mr Salcedo saw what appeared to be drugs in the esky. The drugs were white crystals and were in rectangular‑shaped packages.
(h)In October 2018, the appellant and Mr Salcedo were recorded being together on a number of days in the vicinity of the unit. On 30 and 31 October 2018, Mr Salcedo said that while he was with the appellant he (that is, Mr Salcedo) carried bags of cash.
(i)On 1 November 2018, the appellant was photographed carrying a FoodSaver box. A FoodSaver is a Cryovac wrapping machine. A FoodSaver machine was found by police in the unit on 15 November 2018. The cash the subject of count 4 was wrapped in Cryovac. Mr Salcedo said that the FoodSaver machine was used for Mr Salcedo to wrap cash.
(j)The appellant's dealings in relation to the unit, his communications and meeting with Ms Ta and Mr Salcedo and his possession of keys to the unit occurred at a time proximate to the seizure of the drugs and money the subject of counts 2, 3 and 4.
(k)The appellant was not merely a courier or warehouser of drugs and cash. He was further up the chain of command in the drug dealing business than Ms Ta and Mr Salcedo. The appellant had a managerial role in the drug dealing organisation. The facts and circumstances of the appellant's offending on count 1 demonstrated the nature of his role.
(l)The Edwards lie.
In our opinion, the evidence showed that the appellant was very closely connected with the unit. He knew that it was being used as a safe house for drugs and illicitly derived cash. Specifically, the appellant was aware that the unit was being used to store prohibited drugs and cash which had been derived from the sale or supply of prohibited drugs. He had keys to the unit. The appellant was able to and did access the unit without the assistance of Mr Salcedo or the landlord.
The alternative scenarios in respect of the drugs and cash the subject of counts 2, 3 and 4 are that the drugs and cash were present in the unit without the appellant's knowledge or possession and that they belonged to or were possessed by an unnamed third party, the landlord, Ms Ta or Mr Salcedo.
We would immediately put to one side a scenario that the landlord possessed the drugs and money. There is no evidence to suggest that the landlord, whoever that person is, had any knowledge that the unit was being used as a place where prohibited drugs and cash derived from the sale or supply of prohibited drugs was stored. Any contrary suggestion is fanciful and speculative.
Under cross‑examination, Mr Salcedo agreed that when the appellant travelled to Vietnam during Mr Salcedo's second visit to Perth, 'other people' used to go in and out of the unit. Apart from referring in his evidence to the landlord and Ms Ta, he did not say who these people were. Leaving aside for the moment the possibility that the drugs the subject of counts 2, 3 and 4 belonged to Ms Ta, the evidence of Mr Salcedo falls well short of giving rise to a reasonable inference that the drugs and cash belonged to or were possessed by some unknown third party. This scenario is not reasonable having regard to the manifest unlikelihood that a third party would place valuable drugs and the substantial amount of cash in premises to which the appellant had free and unfettered access if the third party intended that the appellant should not have any knowledge of, or any access to, or any control over, the drugs and money.
In our opinion, it is also manifestly unlikely that the drugs and cash the subject of counts 2, 3 and 4 were in the exclusive possession of Mr Salcedo or that he jointly possessed them with Ms Ta and not the appellant. Mr Salcedo did not give evidence to this effect and it is inconsistent with Mr Salcedo's subservient role in the enterprise as a storeman.
This leaves the scenario that the drugs and cash the subject of counts 2, 3 and 4 were possessed by Ms Ta, either solely or jointly with some other unknown person and not the appellant. Mr Salcedo testified that, in the absence of the appellant, he and Ms Ta, on occasions, went to the unit and cash and drugs would be collected or dropped off. Of course, this evidence has to be viewed in the wider context of the ongoing drug operation which involved the appellant as coordinator and both Ms Ta and Mr Salcedo in more subservient roles.
In our opinion, this evidence is incapable of sustaining, as a reasonable alternative inference, that Ms Ta was independently, and unknown to the appellant, operating her own drug dealing business in Perth using the unit as a place to store her drugs and cash with Mr Salcedo acting as her storeman.
In our opinion, the only reasonable inference open, having regard to the whole of the evidence, was that the appellant possessed the drugs and cash the subject of each of counts 2, 3 and 4 and that the cash the subject of count 4 was, to the appellant's knowledge, the proceeds of selling or supplying prohibited drugs. In our opinion, there is no other reasonable inference open to be drawn.
In respect of counts 2, 3 and 4, the trial record does not reveal that the verdicts of guilty were unreasonable or unsupported. We do not have a reasonable doubt as to the appellant's guilt on these counts. While the appellant did not have physical custody of the drugs and money, he knew of their existence and had the capacity to exercise control or dominion over them and intended to do so. The verdicts of guilty on counts 2, 3 and 4 were not unreasonable or unsupported on the evidence. The State proved his guilt beyond reasonable doubt.
In our opinion, the appellant has not established that the verdicts of guilty on counts 1, 2, 3 and 4 were unreasonable or unsupported by the evidence. While we would grant leave to appeal, the ground of appeal has not been made out. The appeal must be dismissed.
The application for an adjournment
As mentioned, we refused the appellant's application to adjourn the hearing of the appeal. Our reasons for doing so are as follows.
The following basic chronology is relevant.
The appellant filed his notice of appeal within time on 11 January 2021. At all relevant times, he has been represented by lawyers. The appellant's case was filed on 1 June 2021 and the respondent's answer was filed on 23 July 2021.
The appellant's case was settled by experienced counsel, Mr Nugawela.
The single ground of appeal relied upon by the appellant did not involve complex questions of law or fact.
In September or October 2021, the court notified the appellant's lawyers that the appeal was likely to be listed in January or February 2022. On 15 November 2021, the appellant's lawyers were notified that the appeal had been listed for hearing on 17 January 2022.
On 12 January 2022, the appellant filed his application for an adjournment of the hearing of the appeal. The application was accompanied by an unsworn affidavit of the appellant. On 17 January 2022, the appellant's lawyer, Mr Vu, swore an affidavit in support of the application for an adjournment. This affidavit included not only a copy of the appellant's unsworn affidavit, but an affidavit from an interpreter, Mr Tam Nguyen, providing a Vietnamese translation of the unsworn affidavit. The appellant's affidavit remains unsworn.
It appears from the unsworn affidavit of the appellant that, while he was incarcerated at Acacia Prison, other inmates recommended Mr David Grace QC and Mr David Edwardson QC to argue his appeal. He instructed Mr Vu to obtain fee estimates from Mr Grace and Mr Edwardson. Mr Vu obtained these estimates. If the affidavit of the appellant is to be accepted, it is likely this occurred in or about October or November 2021.
According to the appellant's unsworn affidavit, he does not have the funds to brief Mr Grace or Mr Edwardson. Family friends in Melbourne have agreed to provide him with the necessary funds. However, the prospective provider of the funds has suffered some financial hardship because of the COVID‑19 pandemic and restrictions. As a result of a conversation he had with one of these family friends, the appellant believes, if he was given another six months, they would be able to raise the necessary money.
It is apparent that the appellant sought an adjournment of the hearing for at least six months.
The relevant legal principles with respect to the granting of an adjournment of an appeal are set out in The State of Western Australia v Silich.[131] An adjournment will be granted if it is the interests of justice to do so. While the respondent did not point to any particular prejudice and neither opposed nor consented to the adjournment, in our opinion, it was not in the interests of justice to grant the adjournment.
[131] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [111] ‑ [113].
We did not grant the adjournment because of a combination of the following factors:
(a)It is not highly likely that the appellant will be able to raise the money to instruct senior counsel.
(b)Even if he raised the money, there is no evidence that the nominated counsel would accept the brief.
(c)There is nothing about the case which requires senior counsel. As counsel for the appellant frankly conceded when arguing the adjournment application, the ground of appeal did not involve complex questions of fact or law.
(d)The application for an adjournment was made late and, if granted, would have resulted in valuable court time being lost.
(e)The submissions in the appellant's case were competent and comprehensive and properly advanced the appellant's case on the single ground of appeal.
(f)In order to ensure that every opportunity was given to the appellant to put all arguments he wished before this court, the court gave the appellant the opportunity to make supplementary written submissions in support of his argument, which he did.
Conclusion and orders
We would dismiss the appeal.
The orders that we would make are as follows:
(1)Leave to appeal is granted.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SG
Associate to the Judge
13 JANUARY 2023
13
0