Leung v Regina

[2003] NSWCCA 51

Reported Decision: 144 A Crim R 441

New South Wales

Court of Criminal Appeal

CITATION:	Leung v Regina [2003] NSWCCA 51
HEARING DATE(S):	3/5/02, 8/11/02
JUDGMENT DATE:	1 May 2003
JUDGMENT OF:	Meagher JA at 1; O'Keefe J at 2; Bell J at 105
DECISION:	Appeal against conviction dismissed; leave to appeal against severity of sentence granted; appeal against such sentence dismissed.
CATCHWORDS:	Criminal law - Evidence - Attempt to obtain possession of narcotic goods - More than commercial quantity - Circumstantial case - Prior entry into Australia using false name and documents - False banking and other documentation - Knowledge of goods in possession of accused - Suspicious circumstances combined with failure to make inquiry - Wilful blindness - Specific direction not required - Propensity - Character - Flight - Lies - Credibility - Ambit of s 108(3) of Evidence Act 1995 - Section 108(3) not limited to the particular witness in the witness box against whom relevant allegation made - Limitation on use of prior consistent statement admitted only under s 108(3) - Procedure to be adopted in relation to evidence concerning prior consistent statement - Error - No miscarriage of justice - Role of Appellant more than mere courier, not mastermind but performing organisational role in relevant criminal enterprise
LEGISLATION CITED:	Customs Act 1901: ss 233B; Evidence Act: ss 55, 66, 97(1), 100, 102, 103, 108(3), 112, 135, 137, 190(2), 192; Part 3.8 Criminal Appeal Rules: Rule 4
CASES CITED:	BD (1997) 94 A Crim R 131 Cheung v The Queen (2001) 76 ALJR 133 Giorgianni v The Queen (1985) 156 CLR 473 Graham v The Queen (1998) 195 CLR 606 He Kaw Teh v The Queen (1985) 157 CLR 523 Kural v The Queen (1987) 162 CLR 502 Papakosmas v The Queen (1999) 196 CLR 297 Pereira v Director of Public Prosecutions (1989) 63 ALJR 1 R v A.N. [2000] NSWCCA 327 Regina v Isaacs (1997) 41 NSWLR 374 Regina v Martin (1981) 2 NSWLR 640 Savvas v The Queen (1995) 183 CLR 1 The Queen v Olbrich (1999) 199 CLR 270
PARTIES :	Yiu Man Leung Regina
FILE NUMBER(S):	CCA 60471/01
COUNSEL:	Mr D Patch - Appellant Mr R Maidnent SC - Crown
SOLICITORS:	Rutlands Law Firm - Appellant DPP (Cth) - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/11/0894
LOWER COURT JUDICIAL OFFICER :	Finane QC, DCJ

- 1 -

60471/01

Meagher JA
O’Keefe J
Bell J

Date: 1 May 2003

Yiu Man Leung v Regina

JUDGMENTS

Meagher JA

1 I agree with O’Keefe J

O’Keefe J:

INTRODUCTION

2 This is an appeal by Yiu Man Leung (the Appellant) against a conviction by a District Court jury on 6 March 2001 for having, without reasonable excuse, attempted on 4 May 1997 to obtain possession of narcotic goods consisting of not less than a commercial quantity of heroin, contrary to s 233B(1)(c) of the Customs Act 1901. A commercial quantity of heroin is 1.5kg. The quantity of heroin involved in the present case was 78.07 kg gross, which on analysis contained 54 kg of pure heroin. The Appellant has also sought leave to appeal against a sentence of imprisonment for 20 years dating from 17 August 1999, being the date on which he went into custody in respect of the offence, and a non-parole period of 12 years from 17 August 1999, set to expire on 16 August 2011.

3 The grounds of appeal against the conviction are as follows: There was a miscarriage of justice because:

(i) evidence relevant only to the credit of the Appellant was admitted, contrary to s 102 of the Evidence Act;

(ii) the question of the accused’s propensity to commit criminal acts, and to lie generally, was raised by the evidence, and because of the manner of the Crown Prosecutor’s cross-examination of him, and the Crown Prosecutor’s address to the jury on these matters;

(iii) of the way in which the Trial Judge directed the jury on the question of lies told by the Appellant;

(iv) the Trial Judge said to the jury, concerning the evidence of the Appellant, ‘if you consider he has given false evidence in this trial, then you might think that also casts doubt on his credibility, that you would less easily accept the word of somebody who comes into the witness box and gives false evidence”;

(v) of the manner in which the Crown Prosecutor addressed the jury on:

(a) the question of lies told by the Appellant;
(b) the previous crimes committed by the Appellant;
(c) the question of the Appellant’s bad character; and
(d) the question of the Appellant’s credit;


(vi) of the way the Crown Prosecutor cross-examined the Appellant about lies he had told;

(vii) the Appellant was cross-examined about his bad character, and evidence as to his bad character was admitted;

(viii) the Trial Judge, in reference to factual disputes between the Appellant and some Crown witnesses, told the jury, “if you think the evidence is important and there is a dispute between two people about a particular matter, you have to decide which of the two persons you believe”;

(ix) the Trial Judge said to the jury, “if the accused acted in such a way there was a significant or real chance that his conduct involved narcotic goods, and he nevertheless persisted in contact which brought him into possession of the drugs, then you can infer that he had knowledge that the goods contained narcotics”;

(x) the Trial Judge said to the jury, “if that be the situation, that he did not specifically know, but he specifically clouded his mind to the situation by just declining to make any inquiry, well you could certainly look at that”;

(xi) the Trial Judge refused to admit evidence from the Appellant’s wife about what the Appellant had said to her on the question of why he ran away after his arrest.

4 From the foregoing it can be seen that the grounds of appeal against conviction can conveniently be grouped into three headings. The first is concerned with the admission or rejection of evidence (grounds (i) and (xi)). The second is concerned with the conduct of the Crown Prosecutor in relation to the manner of cross-examination of the appellant, and the subject matters traversed by such cross-examination, including lies, credit and character (grounds (ii), (v), (vi), (vii)). The third area of attack on behalf of the Appellant relates to the way in which the Trial Judge directed the jury about various matters, particularly concerning the credibility of the prisoner (grounds (iii), (iv), (viii)) and matters relating to knowledge of the prisoner (grounds (ix) and (x)).

5 The application for leave to appeal against sentence is based on two grounds:

(1) that the sentence was manifestly excessive;

(2) the Judge overstated the importance of the Appellant’s role in the drug enterprise, and the degree of his criminality.

The second ground in support of this aspect of the appeal is a basis, or the basis, on which it is said the Judge fell into an error that led to the ultimate error of the sentence being manifestly excessive.

SECTION 233B OF CUSTOMS ACT 1901

6 Section 233B of the Customs Act 1901 (Cth) provides that:

“(1) Any person who -
…
(c) without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act;
shall be guilty of an offence.
(1A) On the prosecution of a person for an offence against subsection (1), being an offence to which paragraph (c) of that subsection applies, it is a defence if the person proves that he or she did not know that the goods in his or her possession had been imported into Australia in contravention of this Act.
…
(1C) Any defence for which provision is made under either of the last 2 preceding subsections in relation to an offence does not limit any defence otherwise available to the person charged.
(2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods …”

7 The maximum penalty provided for the offence for which the Appellant was convicted is a fine not exceeding $750,000, or imprisonment for life, or both, or for such period as the Court thinks appropriate (s 235(2)(c)(i)).

FACTS

8 On 23 April 1997, a cargo ship named Sha He arrived in Port Botany from China, having travelled to Australia via Hong Kong. Its cargo included a container in which there were 800 boxes. Each box contained 24 cans. According to the manifest, the cans contained pineapple. The consignor was Guang Zhou Medicine and Health Product, Panyu Import and Export Co, from Gaundong in the People’s Republic of China. The goods were consigned to Austviet Pty Ltd at an address in Warwick Farm, New South Wales. Being suspicious about the container, Australian customs officials caused it to be x-rayed, and discovered that there were seven boxes in the consignment which contained cans in which there was heroin rather than pineapple. The seven boxes in question were found to weigh less than those which contained pineapple, and were sealed with a different packing tape from the rest of the consignment.

9 The seven boxes were dismantled and found to contain seven cans in which there was 78.0703 kg (gross) of heroin, which on analysis yielded 54 kg of pure heroin. Australian Police Force officers removed the heroin and impounded it. They then replaced the 78.0703 kg of heroin which they removed with 20g of such heroin in each of the seven cans in which heroin had been discovered. The cans were re-sealed, and one can containing heroin was placed in each of the seven boxes that had been dismantled. These boxes were then re-assembled, and twenty three cans of pineapple were placed in each of them. All 800 boxes were then re-packed into the container in which they had been originally shipped, and the container was returned to the wharf area, over which Australian Police Force officers commenced surveillance.

10 On 2 May 1997, the container was delivered to a vacant shop at Lansvale where the 800 boxes were unloaded and stacked under the direction of a Mrs Vo. On the same day, the seven boxes in which the cans containing heroin had been found were removed from the container, and moved into shop premises at the Lansvale address. Their stacking in the shop was under the direction of Mrs Vo, and they were so arranged as to enable inspection of each box.

11 On the morning of Sunday 4 May 1997, a Nissan motor vehicle came to the shop at Lansvale. There were two people in the vehicle; the Appellant, who was driving, and a passenger whose name was Tung. The Appellant went into the shop and after a short time returned to the vehicle. He then drove it to the rear of the shop, whereupon he and Tung again entered the shop. Shortly after, the Appellant moved the vehicle closer to the rear door of the shop, and then went inside. About 20 minutes later, he and Tung were observed to carry seven boxes from the shop premises to the vehicle, which was then driven away by the Appellant in company with Tung. Surveillance officers followed the vehicle to a block of home units at 20 Colin Street, Lakemba, at which the Appellant was seen to remove one of the boxes from the rear of the vehicle and carry it into the home unit building. Tung was also seen to enter the premises and Tung used can openers that he had to begin opening some of the tins. This was recorded as a result of listening devices that had been secreted in the boxes. A short time later, the Appellant left the Lakemba unit building and went to a nearby public phone, from which he made three telephone calls: one to a man named So; another to a person named Shum (the tenant of the unit at Lakemba); and a third to Duncan Lam, who was later described by the Appellant as Lo Sai or “big boss” of the drug operation.

12 The Appellant then drove to Campsie, where he picked up So. So placed the Appellant’s travel bag in the boot of the vehicle and they then proceeded to Kensington, where the Appellant met and had some dealings with Duncan Lam. Contact with the Appellant was then lost.

13 After the police survillance officers had lost contact with the Appellant, Tung was seen to leave the unit building at Lakemba and make calls from a public telephone box in the immediate vicinity. One of such calls was to a mobile phone which was found in the Appellant’s possession when he was later arrested. Tung returned to the unit building where he was arrested a short time later. A search of the unit revealed that all of the seven boxes were in the premises and had been opened. Eight of the cans in the boxes had also been opened. These included the seven which contained the 20g samples of heroin referred to above. The search also revealed a set of weighing scales, boxes containing clear plastic snap-seal bags, and a number of rolls of masking tape. These would clearly have been suitable for the weighing of small quantities of heroin and their packaging. The 140g of heroin that had been placed in the seven cans by the Australian Federal Police were found in a shoebox near the front door of the unit.

14 Later in the afternoon, the Appellant returned to the Lakemba premises and was arrested. When searched, a large sum of money, credit cards, a card that gave him entry to a high rollers’ room in a gambling casino in Melbourne, and a number of false documents were found in his possession. The false documents included a drivers’ licences, an airline ticket and a bank Access Card, in the name of Ho Moon Kung. He offered to assist the police in relation to Duncan Lam – also known as “Fatso” – the person who was described by the Appellant as “the big boss”. Shortly after he had been arrested, the Appellant’s mobile phone rang and a conversation ensued. As a result, several attempts were made to arrange a meeting with a person described as Ah Dai. Whether that name was a pseudonym for Duncan Lam is not entirely clear, but would seem likely. A meeting was finally arranged to take place between Ah Dai (or Duncan Lam) and the Appellant, at a restaurant at Ashfield. The Appellant was fitted with a listening device, that was concealed in a cigarette packet he was carrying. He entered the restaurant. At the time he did so, Duncan Lam was seen in the immediate vicinity of the restaurant.

15 Regrettably, from the point of view of the investigation, the Australian Federal Police had not secured the rear door of the premises. As a consequence, the Appellant walked in the front door, and out the back door into a lane, where he threw away the cigarette packet containing the listening device and tape. He then disappeared.

16 The Appellant left Australia under a false name and using false immigration and travel documents; obviously having contacts which enabled him to do so. He travelled to Thailand, where he was arrested on 3 July 1999 on charges of using false documents to obtain residence in Thailand. He was fined and given a suspended sentence, but when he was released from custody he was arrested on 17 August 1999 at the behest of the Australian authorities, who were seeking his extradition. He was returned to Australia on 19 April 2000 and remained in custody until the date he was sentenced – namely 29 June 2001. He had thus been in custody continuously since his arrest in Thailand on 17 August 1999.

17 Immigration records showed that the Appellant had come Australia on a number of occasions:

(i) from 13 June to 18 August 1996;

(ii) from 21 September to 4 October 1996;

(iii) from 2 January to 5 February 1997;

(iv) from 15 February 1997 to 22 April 1997;

(v) from 30 April 1997 to the date of his escape to Thailand.

With the exception of the entry on 15 February 1997 and his departures on 22 April 1997 and to Thailand in or about May 1997, the Appellant used his own name and apparently used travel documents that were legitimate. The entry on 15 February 1997 and the departure on 22 April 1997 were under the false name of Ho Moon Kong, and a false passport in that name was used.

18 The Appellant gave evidence at his trial that he had travelled to the People’s Republic of China in order to obtain the false travel and other documentation. This was said to be because his wife, believing that he had taken a mistress in Australia, had seized his travel documents which then forced him to go to the People’s Republic and obtain false documents. He said that whilst in Australia in early 1997, he had opened a bank account in the name of Ho Moon Kong, using his false passport for that purpose, and had also used his false passport and an ANZ bank Access Card in that name to obtain a drivers’ licence in the same false name. This was said to be so that he could avoid accumulating excessive demerit points in his own name.

19 It should be remembered that when the Appellant came to Australia in February 1997 he was joined by his wife, who he said did not know that he was travelling on a false passport. However he also said that when he came to Australia on that occasion the legitimate passport was in the possession of his wife (AB 61), but no explanation was given by him or his wife as to why it was that the legitimate passport had not been returned to him for the purposes of this visit, or as to the travel documents that he used to enter Australia on this occasion (see, for example, AB 109).

20 His wife gave evidence in confirmation of the circumstances under which the Appellant said he had obtained the false passport and travel documents. She said that she had taken his passport to prevent him from coming to Australia (AB 138) and that subsequently he had gone to the Chinese mainland and had later telephoned her from Sydney asking her to come to Sydney (AB 139). When asked about what travel documents she believed her husband to have used, she was somewhat evasive but gave evidence that her husband “said he has means” (AB 139). No further explanation was proffered during her evidence in chief. When she was cross-examined she confirmed that she realised that her husband had come to Australia on a false passport, since she was still holding his legitimate passport (AB 161), but again did not advance any explanation for the false passport over and above that given in chief (AB 139-140).

21 The verdict of the jury indicates that neither his nor her evidence in this regard was accepted by the jury. It was certainly not accepted by the Trial Judge, who thought:

“…his evidence was unconvincing, and hers also lacked any convincing quality. I do not accept at all that he came into Australia on false documents earlier in the year in which this offence was committed for the purpose of seeing a mistress.” (AB 384)

22 In his evidence in chief, the Appellant also said that he fled Australia following his arrest because he was frightened of being accused “of being a Lo Sai” (big boss) (AB 67). Having decamped from the restaurant to which he had been taken by the Australian Federal Police, the Appellant said that he went to Chinatown and arranged “to obtain travel documents and arrange through a friend (who was not named) that enabled (him) to return to Asia.” (AB 68) This took between 15 and 20 days (AB 68). He was, however, unable to recall the name which appeared on the passport, which was said to be a Hong Kong passport (AB 75).

23 His explanation for his involvement in the matter was that he was just responding to a request “by someone to help his friend collect (the) boxes,” (AB 68) but that he had no idea that there were any drugs in the boxes.

GROUNDS OF APPEAL

As to Ground (i)

24 In support of this ground, counsel for the Appellant relied on three pieces of evidence that were said to have been admitted contrary to s 102 of the Evidence Act 1995. They were:

(i) that the Appellant had travelled to Australia under the false name of Ho Moon Kong on 15 February 1997;

(ii) that various documents in the false name of Ho Moon Kong were found in the Appellant’s possession on his arrest;

(iii) that the Appellant travelled to the People’s Republic of China to obtain a Hong Kong passport in the false name of Ho Moon Kong, and lied to Government officials there in order to obtain such passport.

25 All of the above evidence was said to be relevant only to the credit of the Appellant and should not, as a consequence, have been admitted.

26 Section 102 of the Evidence Act 1995 prohibits the admission of evidence “that is relevant only to a witnesses credibility” (italics added). For present purposes the critical word in the section is “only”, and it was frankly and correctly conceded by counsel for the Appellant that if the evidence referred to above was “relevant in some other way, then ground 1 fails.” (T4)

27 Evidence concerning the provisional drivers licence, learners drivers licence, ANZ access card and certain banking records that were found in the possession of the Appellant all in the false name of Ho Moon Kong was admitted without objection in the course of the Crown case (AB 18). Those documents were circumstantial evidence in support of the offence with which the Appellant had been charged, as was conceded by the Appellant’s counsel at trial (AB 183). They were not relevant “only” to the credibility of the Appellant.

28 The evidence concerning the obtaining of the passport by the Appellant and its use to enter Australia on 15 February 1997, was led in the course of the Appellant’s own evidence in chief. He said that he had travelled to Australia under the name of Kong in February 1997 (AB 57), and during the time that he was in Australia on that occasion he obtained an Australian drivers’ licence using the false name of Kong. In order to do this, he said that he had used the passport in the false name, and his ANZ Access Card in the same name. His evidence was that the airline ticket in the name of Kong, which related to a flight between Manila and Hong Kong on 24 April 1997 (AB 60), was also obtained by him. His explanation for this was that, although he had a passport in his correct name, his wife had taken possession of his passport on the basis that she was concerned that the Appellant had “kept a woman” in Australia. However, although it was claimed that his wife had confiscated his passport, she in fact was with him in Australia during that visit.

29 From the foregoing it is clear that the evidence on which the first ground of appeal depends was not admitted in contravention of s 102 of the Evidence Act 1995.

30 However, counsel for the Appellant then submitted that even if the evidence was admissible, no consideration had been given by the Trial Judge to the provisions of s 103 of the Evidence Act 1995, and in particular as to whether the evidence had substantial probative value. This matter did not arise for consideration at the trial, since the evidence was admitted without objection and was conceded to be part of the circumstantial evidence relied on by the Crown in support of its case, or was given in chief by the Appellant as part of his case. No submission was made at the trial to suggest that the evidence in question did not have substantial probative value. The matter now sought to be advanced just did not arise. In those circumstances it cannot, in my opinion, properly be said that the Trial Judge erred in this regard. Moreover, the provisions of Rule 4 of the Criminal Appeal Rules are directly in point, and leave should not be given to challenge the admissibility of the evidence the subject of this ground on the basis of a claimed failure by the Trial Judge to give an express ruling based on s 103 of the Evidence Act 1995.

31 The first ground of appeal fails.

As it Grounds (ii), (v), (vi) and (vii)

32 These four grounds were argued together. In support of them, counsel for the Appellant relied on the fact that the Crown Prosecutor, in questioning the Appellant about the false passport, put to him that to obtain it “was a serious criminal offence”, (AB 84) and that the Appellant was “a man who was prepared to give false information to the authorities whenever it suits (him)” (AB 85). To the former line of questioning, the Appellant said that he knew it was a serious criminal offence (AB 84); to the latter he first sought to avoid the question, but when pressed answered “yes” (AB 85).

33 It is relevant to observe the context in which the cross-examination occurred. The Appellant had given evidence in chief that he had obtained the passport, drivers licences, bank access card, other bank documentation and airline ticket in the false name of Ho Moon Kong (AB 56-57). He had also given evidence in chief that he went to “mainland China” (AB 58) where he obtained a Hong Kong passport with his photograph on it, but in the name of Ho Moon Kong, and that whilst he was in Australia between 15 February and 22 April 1997 he obtained the other documentation in that false name. He did not, however, explain how he came to get the false passport, or why he went to mainland China to do so, or from whom he obtained it, or why he did not merely seek to obtain another passport in his correct name from the authorities in Hong Kong (his place of residence) on an expedited basis. It was in the course of testing the evidence given by the Appellant in chief that the Crown Prosecutor came to the subject matter of the passport. The Appellant’s counsel at the trial conceded that the Appellant “had in his possession a false passport at the time of his detention” (AB 50). In these circumstances he contended that evidence on that topic should be limited to the fact that “at the time of flight he had a false document.” (AB 80) However in testing the Appellant’s claim that his wife had taken his passport, the Appellant was asked:

“Q: … you told him (Appellant’s counsel) that your wife suspected that you had a mistress?
A: Yes.
Q: She took your passport?
A: Yes.
Q: And you obtained a false passport in the name of Ho Moon Kong in order to use it to travel to Australia?
A: Yes.
Q: That part of the story about your wife suspecting you had a mistress and you obtained a passport for that reason, is false, isn’t it?
A: No, it is not false. It’s true.
Q: Was it a false Hong Kong passport?
A: You mean in that name?
Q: Yes.
A: It’s a Hong Kong passport.
Q: And to obtain that was a serious criminal offence, wasn’t it?
A: I know that, yes.
Q: And do you seriously suggest that it’s truthful to say that you did that so you could travel to Australia when your wife took your passport away?
A: Well, I have no choice. I have to come here, and I need a passport to get back here, because the young woman was saying that she is already pregnant with a baby, and she is going to kill herself if I don’t come.
Q: And did you consider whether or not you might go to the Hong Kong authorities and tell them, for example, that your passport, your true passport had been lost, and thus obtain another passport in that way?
A: In order to obtain a replacement for a lost passport will take up to two or three months, might even be longer, I am not sure how long, and that would be a long time.” (AB 84-85)

34 In relation to the cross-examination of the preparedness of the Appellant to give false information to the authorities to obtain false travel documents and to others to obtain false licenses and bank accounts, the context is again important. The Appellant had given evidence that he came to Australia in February 1997 for the purposes of investigating his prospects of immigrating to Australia. It was against such a background that the Crown Prosecutor sought to test the credibility of the Appellant’s evidence by asking about false documentation and like records. The proposition underlying the cross-examination was the inherent improbability of a person who was seeking to become a migrant utilising false documents to come to Australia and setting up a false identity in Australia through the obtaining of a drivers’ licence and the opening of bank accounts, etc. In respect of this entry into Australia, one sequence of questions was as follows:

“Q: You’re just making this up as you go along, are you not?
A: No, I didn’t make it up. What I have told you is truthful, because I took the affirmation to tell the truth.
Q: You told lies on the passenger card that you filled in when you came to Australia under the name of ‘Ho Moon Kong’, didn’t you?
A: How do you mean? You mean when I came here using that name?
Q: Yes.
A: Well, if I come here with that passport, with that name, then of course I will have to complete any other documentation in that name.
Q: And that’s what you did?
A: Well, whatever the card required me to complete, then I just do so.
Q: And you had to use the false name of the passport under which you were travelling?
A: Yes.
Q: In the same way that you had to use a false name on the card when you left Australia after 4 May?
A: Yes.
Q: In other words, you are a man who was prepared to give false information to the authorities whenever it suits you, aren’t you?
A: If it helps me, if it suits me, and if I want to commit any crimes, then when I first came to Australia I would have used a false name. Why would I use my real passport?
Q: I wonder if you would answer my question?
A: Yes.
Q: You were prepared to give false information to the authorities when it suits you?
A: It’s not as though when it suits me. It’s just that because this young woman was making things sound so serious, that I had no choice, but I have to come here, so I had to use that passport, so I was forced to give that information out.
Q: And you were forced to give false information to the ANZ Bank when you opened an account in the name of Ho Moon Kong?
A: No. It’s because my friend tells me that if one operates a motor vehicle here in Australia it’s very easy to lose points, and so we need to have a drivers’ licence. And to get a drivers’ licence my friend also tells me I will need first of all to have a bank card.
Q: You already had a drivers’ licence in your real name, didn’t you?
A: Yes.
…
Q: You did not have to get a licence in the same way you say you needed to get a passport in the name of Ho Moon Kong?
A: Well, that licence was honestly just in case I lose too many points. I mean, if I want to commit crimes I would use other means.
Q: You were prepared to use that licence in Ho Moon Kong’s name if it suited you, is that right?
A: Yes.
Q: You were prepared to lie to people and say that you were Ho Moon Kong in order to escape traffic offences?
A: Yeah, in case I violate some driving offences and lose points that is why I use it.
…
Q: In order that you would keep driving you would lie to the police about your identity?
A: Yes. …
Q: And yet you expect us to believe, do you Mr Leung, that you would not lie in order to stop yourself going to prison for this charge?
A: You mean everything I have said? Of course, they are all truthful, they wouldn’t be lies.” (AB 83-84)

35 Seen in this context, the questions which are relied upon on behalf of the Appellant do not in my opinion have the effect contended for on his behalf. The questions go to the credit of the Appellant. Whilst they may have some possible impact on the character of the Appellant, it is in my opinion clear that the evidence was not adduced to prove that the Appellant was a person of bad character. The questions are merely part of sequences of questions designed to highlight the essential improbability of the story being put by the Appellant to the jury to explain away his obtaining a passport in a false name so as to enable him to enter Australia, and various other official and banking documents in the same false name that were obtained after he entered Australia on the false passport. They are thus concerned with, and directed at, questions of credibility.

36 The Appellant also contends that in cross-examining him about the circumstances of entry into, and departure from, Australia on the occasion when the offence in question was committed, there was a miscarriage of justice in that it raised bad character and a propensity on the part of the Appellant to commit criminal acts. This was said to be because of suggestions that he told lies, used a false name, was prepared to give false information to the authorities whenever it suited him, and to do so even for minor matters.

37 The objection raised in respect of these matters is that they infringe s 97(1) of the Evidence Act 1995 (the Act). That section provides that:

“Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that the person has or had a tendency … to act in a particular way, or to have a particular state of mind if:
(a) the party adducing the evidence has not given reasonable notice in writing to the other party of the party’s intention to adduce the evidence; or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced by the party seeking to adduce the evidence, have significant probative value.”

38 No notice was given under s 97(1)(a) of the Act, the Appellant did not consent in accordance with the provisions of s 190(2) of the Act and no application was made on behalf of the Crown to dispense with the application of the relevant rules of evidence.

39 As I have said, the cross-examination by the Crown was directed at the improbability of the Appellant’s evidence in chief that there was an innocent explanation for the false passport and other false documentation that the Appellant had obtained and used. To do so is unexceptional, as was conceded at the trial by counsel for the Appellant (AB 204). It is a proper approach to cross-examination, one of the purposes of which is to demonstrate the improbability of the story told by the opposing party. This is accepted by s 103(1) of the Act. Furthermore, the Court is specifically directed to the question of whether the evidence tends to prove that a party knowingly or recklessly made a false representation when under an obligation to tell the truth in order to determine the substantial probative value of the evidence (s 103(2)(a)).

40 For the reasons already indicated, the matters to which such cross-examination was directed were relevant to facts in issue as part of the circumstantial case made by the Crown. They were also relevant to the credibility of the Appellant. The fact that evidence that was adduced may bear on character or tendency or propensity does not render the evidence inadmissible, if it is admissible for another purpose. However such evidence, to the extent that it is evidence of character, reputation, conduct or tendency of a person, is not admissible to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind (s 97(1)). It was not used for that purpose, but could properly be used, and was used, as going at very least to the credibility of the Appellant.

41 Criticism was also made of the use that the Crown Prosecutor made of such material in his address to the jury. The Crown Prosecutor reminded the jury in his closing address that the passport used by the Appellant was fraudulent, that he committed a criminal act to get it, that he had told a lie in order to obtain a New South Wales drivers’ licence in a false name (although he already had a NSW drivers’ licence in his real name), that he would lie to police about his identity (AB 86), that he was by definition a liar. This, so the argument ran, raised questions of character and propensity to the jury. However an examination of the address makes it clear that the Crown did not rely on the fact that the Appellant had a false passport, etc, as proving that he knew that there was heroin in the shipment with which he was so closely associated.

42 In his address, the Crown Prosecutor did not seek to rely on the evidence referred to above as proof that the Appellant had a tendency to act in relation to drugs in a particular way. The cross-examination was about matters led in the Appellant’s case in chief. On behalf of the Appellant, such matters were said to be exculpatory. Cross-examination was relevant to such evidence and to the credit of the Appellant. Thus, when the Appellant was asked about obtaining a New South Wales licence in a false name his answer:

“Well, that licence was just in case I lose too many points. I mean, if I want to commit crimes, I could use other means.” (AB 86)

could readily be relied upon as undermining his credibility.

43 That the cross-examination was relevant to the credibility of the Appellant appears to have been accepted by counsel for the Appellant at the trial when he raised the question of the way in which the use to which lies could be put in the trial. He submitted:

“They bear only upon matters of credit so far as the accused is concerned, whether there are relevant or some other explanation available, and cannot be used on the question of whether, as to the fact in issue, or whether he had knowledge or belief. In other words, they cannot be used as consciousness of guilt in this case… In his address there may have been some blurring of the use in which lies in this case could be put. That is something that your Honour would need to guard against in the summing up.” (AB 204)

44 In my opinion, the cross-examination did not infringe s 97(1)(a) of the Act. It did not require notice; nor did it require the consent of the Appellant pursuant to s 190(2) of the Act. Counsel for the Appellant relied on the decision in R v A.N. [2000] NSWCCA 327 in support of a submission that the evidence was not properly admitted and that as a consequence the appeal should be allowed. However, that case was concerned with evidence that was led by the Crown on two bases, namely: as evidence of relationship between the complainant and the accused, and as tendency evidence. The evidence admitted on the first basis was held to be admissible (para 52). The evidence adduced on the second basis was put forward to support an inference that the accused had a guilty passion for the complainant (para 54). The notice which had been given in respect of the evidence tendered on such basis did not comply with the requirements of Regulation 6 of the New South Wales Evidence Regulations, and no application was made by the Crown to dispense with notice under s 100 of the Act. It was in these circumstances that the evidence as to tendency was held to have been improperly admitted. Furthermore, the situation was compounded by errors on the part of the Trial Judge in his summing up (para 68), and in misstating the evidence in the course of summing up. The consequence of these multiple errors was the allowance of the appeals and the quashing of the relevant convictions. That is a very different case from the present. It involved admitted breaches of s 97 of the Act. There were no breaches in the present case.

45 Furthermore, I do not think it can fairly be said that the address to the jury by the Crown Prosecutor was in effect an invitation to the jury to convict the Appellant because he was a person of bad character with a propensity to tell lies. Properly understood, the address by the Crown Prosecutor was an invitation to the jury not to accept the evidence of the Appellant for a variety of reasons, not least of which arose out of his having knowingly made false representations to the authorities when he was under an obligation to tell the truth and having set up a false identity for himself in New South Wales.

46 It was further contended on behalf of the Appellant that the Crown required leave under s 112 of the Act before it could cross-examine the Appellant as to his character. That submission however depends upon the characterisation of the relevant evidence as evidence of bad character. No evidence as to character was led by or on behalf of the Appellant. This was conceded by his counsel. The Trial Judge asked:

“His Honour: You’re not putting he’s a man of good character, are you?
Counsel: Character has not been raised in the trial. It’s neutral. There need not be a direction on character. There only needs be a direction that they said he had a right to remain silent and the reasons, and he had a right to give evidence and he chose to give evidence.” (AB 154)

47 The evidence referred to by counsel for the Appellant in his submissions is not, in my opinion, evidence to which Part 3.8 of the Act applies. Furthermore, no objection was taken nor question raised at the trial as to the need for leave to cross-examine on the subjects, or in the manner, now criticised. Moreover, no application was made to discharge the jury. What happened was that before the summing up commenced, experienced counsel for the Appellant sought a number of directions from the Trial Judge to ensure that the evidence on these topics was used in accordance with law, and that the use of it was limited accordingly. Those submissions were incorporated into the summing up and no further directions were sought in relation to such matters at the conclusion of the summing up (AB 204-211).

48 In these circumstances I am of opinion that grounds of appeal (ii), (v), (vi) and (vii) fail.

Grounds (iii), (iv) and (viii)

49 It was submitted on behalf of the Appellant that these three grounds of appeal are all related, and should be considered as a group because they are concerned with the manner in which the Trial Judge summed up in relation to the way in which the jury should assess the credit of the Appellant. The first attack on the summing up related to a passage (AB 237 – AB 239) in which the Judge referred to “some disputes between the accused and some other witnesses”. In respect of that, the Judge said:

“You are going to have to make a choice, or you may have to. You might not think it is important, but if you think that evidence is important, and there is a dispute between two people about a particular matter, you are going to have to decide which of two people you believe … when that comes, then you are assessing the credibility of one person against the credibility of another person.”

50 There is nothing exceptional or erroneous about such a direction. Indeed, on the hearing of the appeal, no criticism was made of this direction. His Honour pointed out that, with perhaps one exception, none of the Crown witnesses had been the subject of any attack as to their credit. This was in contrast to the situation in relation to the Appellant. In this context, the Trial Judge referred to the evidence given by the Appellant himself, namely that the had obtained “from some unknown person or persons on the mainland of China a false Hong Kong passport” that he had used to come to Australia on a prior occasion. He pointed out that what had been done necessarily involved false documentation being completed by the Appellant in order to enter Australia, and he reminded the jury that the Appellant had also admitted using the false passport to obtain a false drivers licence, a false provisional drivers licence and a credit card in a false name. It was then put to the jury in the course of the summing up that the Crown case was that on the Appellant’s own admission, he had told lies to persons in authority in Australia and in other countries. That was correct. The Judge then told the jury that this raised a question of credibility. That too was correct. He then posed the question as to whether a person who makes a false statement in official documents for the particular purposes that applied to the Appellant, is a person whose credibility as a witness is less than that of a person who does not, and reminded the jury that the Crown said that the Appellant had acted dishonestly and should not be believed. That too was correct. He then proceeded to raise for the jury’s consideration that, if they considered that the lies told by the Appellant showed that he lacked credibility in relation to those matters, they may consider his honestly in relation to his other evidence. He completed this part of his examination of the issue of credibility with the following statement:

“If you consider he has given false evidence in this trial, then you might think that that also casts doubt on his credibility, that you would less easily accept the word of someone who comes into a witness box and gives false evidence.”

and

“You may also be in a situation where you are left in doubt as to whether his evidence is true or false. I should tell you that in any question where there is a doubt, provided it is a reasonable one, you should give the benefit of it to the accused.”

51 The only matter on which a direction of law was given related to the situation where there is a reasonable doubt. In such a case, the Trial Judge directed the jury that “you should give the benefit of it to the accused”. There is no error in this. As to the rest of the matters relied on, they were not directions of law; rather, they were matters for the assistance of the jury. The jury were, as the Judge had already directed them, entitled to reject any such matters unless they accorded with the jury’s own view (AB 234). Again, there is no error in this. Indeed, what was said to the jury accorded with the way in which the trial had been conducted. Furthermore, no objection was taken to the form of the summing up in this regard. Because of Rule 4, it is now too late for this matter to be raised on behalf of the Appellant.

52 Counsel for the Appellant also relied on a general claim of prejudice to the Appellant from the way in which the summing up was constructed. In this regard, the linking in the summing up of the question of the credibility of the Appellant with the repetition of the Crown’s arguments, was relied on. It was submitted that:

“The effect of this, in a very clear and practical way, was to reinforce the prejudice occasioned to the Appellant by the cross-examination and address of the Crown Prosecutor and the admission and use of inadmissible material concerning credit, bad character and tendency to lie to persons in authority.”

It was further contended that the form of the summing up:

“…made it clear that … the jury should prefer the evidence of the prosecution witnesses who were not persons of that character.”

53 I have already dealt with the admission and use of the material said to be inadmissible. There is no substance in this argument. Furthermore, the submission that his Honour in effect told the jury to prefer the prosecution witnesses because they were people of good character is just not borne out by the form of the summing up, in the relevant part of which his Honour correctly informed the jury that they had to consider the evidence given by the Appellant. He correctly informed them that if they considered he had given false evidence in the trial, “you might think that that also casts doubt on his credibility.” (AB 239). He concluded the relevant section of the summing up with an admonition that “in any question where there is a doubt, provided it is a reasonable one, you should give the benefit of it to the accused.” (AB 240).

54 The Judge detailed the evidence given by the Appellant. The references in his summing up in this regard were extensive: indeed, they occupied some 20 consecutive pages of the summing up. Having done so, the Judge returned to the question of the credit of the Appellant and his cross-examination by the Crown in that regard (AB 325), as he had told the jury he would when the matter had been dealt with in more general terms early in the summing up (AB 238). He reminded the jury of the Crown case to the effect that the Appellant was lying, and referred to the submission by the Crown that neither the Appellant nor his wife should be believed.

55 At no time did his Honour do other than put the case in the way in which it had been conducted, and I do not think that the summing up in this respect was unfair or such as to cause a miscarriage of justice. To suggest, as counsel for the Appellant did, that the Trial Judge directed the jury that they were compelled as a matter of law to approach the assessment of the Appellant in a particular way does not accord with the actual form of the summing up. The suggestion that he so directed the jury is incorrect. The passages relied upon to support this contention just do not bear such a connotation. Furthermore, the submission that the summing up in this regard “reinforce(d) the prejudice occasioned to the Appellant by the cross-examination and address of the Crown, and the admission and use of inadmissible material concerning credit, bad character and tendency to lie to persons in authority” is without merit.

56 When viewed overall, and when the specific passages complained of on behalf of the Appellant are seen in context, there was no misdirection. Furthermore, even if there were, it should be remembered that no objection was taken at the trial to any of the matters now relied on under these grounds of appeal as constituting misdirections. If objection had been taken at the time, further directions could have been given, and even if there were substance in any of the matters now complained under these grounds of appeal (which I do not think there is) the problem could have been overcome. This is the significance and purpose of Rule 4.

57 In my opinion, grounds of appeal (iii), (iv) and (viii) fail.

Grounds (ix) and (x)

58 The argument raised under these grounds of appeal relates to the following passage in the summing up:

“I should also direct you of this. If the accused acted in such a way, the Crown would have to prove this beyond a reasonable doubt, and this goes to the central question of knowledge. If the accused acted in such a way there was a significant or real chance that his conduct involved narcotic goods, and he nevertheless persisted in conduct which brought him into possession of the drugs, then you can infer that he had knowledge that the goods contained narcotics.
So if he acts in a way that there is a significant or real chance that his conduct involved narcotic drugs and he nevertheless persisted in that conduct which brought him into possession of the boxes, then you could infer that he had knowledge that the goods contained narcotic drugs. You can only come to that conclusion if you are satisfied of that matter beyond reasonable doubt.”

59 The complaint made in respect of these passages in the summing up is that they refer only to the objective circumstances and not to the Appellant’s state of mind or belief, and that this constituted an error.

60 The passage referred to in paragraph 57 should not be considered in isolation. It needs to be seen as part of the relevant section of the summing up. In it, his Honour pointed out that the case against the Appellant was “a circumstantial evidence case” (AB 248). He explained this concept to the jury. He then told the jury that they could not return a verdict against an accused person based on circumstantial evidence “unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than guilt.” (AB 249). He then said:

“… you have to look very carefully at all the evidence in the case, because the circumstances that the Crown relies on to establish the case are circumstances designed to establish to your satisfaction that there was heroin or some narcotic drug of more than the commercial quantity in the boxes.” (AB 250)

61 At a later stage in the summing up, the Trial Judge highlighted the issues to be considered by the jury in the following way:

“There being no real dispute at all that he in fact possessed the goods, in the sense that he put his hands on them and carried them, put them in his car and took them to a flat, and even possession for a short time, as I have said, is sufficient. The question is, was it knowing possession? It is not sufficient just for it to be possession. He has to know that what he is possessing is narcotic goods. And in the absence of direct evidence, and there is no direct evidence that he knew, then you have to look at the circumstances to decide whether knowledge is the only rational inference available to you.” (AB 259)

62 When the passage complained of is seen in the context of the other passages to which I have referred, I do not think that the argument that his Honour misdirected the jury in the manner claimed can be sustained. The totality of the summing up made it clear that possession with knowledge of the narcotic nature of the substance possessed was essential and that the key element in the case, as it had been fought at the trial, was whether the accused had been proved beyond reasonable doubt to have the relevant knowledge. Indeed, very early in the summing up his Honour had said:

“In this case, as both counsel have emphasised to you, there is a large measure of agreement about the facts. That is, between them, there is a large measure of agreement. There has not been a great deal of dispute. The real question is a question of knowledge …” (AB 232)

63 Furthermore, the directions referred to in paragraph 57 were not the subject of any request for a further direction or retraction. As a consequence, Rule 4 has been invoked by the Crown, in my opinion correctly, in its response to the arguments raised under these grounds of appeal.

64 In support of these grounds of appeal, counsel for the Appellant has further submitted that the directions by the Trial Judge concerning suspicious circumstances, and what the jury could infer from a combination of such circumstances and a failure by the Appellant to make inquiry, were erroneous, and that when the Trial Judge told the jury that they could “certainly look at that”, he erred in that he failed to give more careful and precise directions.

65 It is instructive to look at what it was that the Trial Judge said to the jury in this connection, and the context in which it was said. In the relevant part of the summing up, his Honour had just dealt with the central issue of whether the possession of the goods in question was “knowing possession” (AB 259) (see paragraph 60 above) and had informed the jury that it was necessary for there to be proof that the Appellant knew that what he was possessing were narcotic goods. He then directed the jury in relation to the drawing of inferences from the circumstances, and confirmed that they had “to look at the circumstances to decide whether knowledge is the only rational inference available.” (AB 259). He then came to the question of the relationship between suspicious circumstances and a failure to make an inquiry as to the goods in question. He said:

“There is some evidence, indeed the Crown commented on it, that he has said that during the car journey he made no inquiry as to what was in the boxes. He said he made no inquiry of Mrs Vo as to what was in the boxes, and he knew nothing of what was in the boxes. He did not even think that (they) might be pineapples, he just did not consider what they might be. A combination of suspicious circumstances and a failure to make an inquiry may sustain an inference of knowledge of the actual likely existence of the relevant matter, which is the narcotic drugs in this case.
If that be the situation, that he did not specifically know, but he specifically clouded his mind to the situation by just declining to make any inquiry, well you could certainly look at that. But the Crown puts its case much more … on his being an active participant rather than his being wilfully blind to reality.” (AB 260)

66 In Pereira v Director of Public Prosecutions (1989) 63 ALJR 1 the High Court considered questions of knowledge, wilful blindness and the relationship between suspicious circumstances combined with a failure to make inquiry as a basis for an inference of knowledge. The Court said (adopting what had been said by Mason CJ, Deane and Dawson JJ in Kural v The Queen (1987) 162 CLR 502 at 504-505) that where actual knowledge is a specified element of the offence charged or a necessary element of the guilty mind required for the offence:

“…it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of knowledge: Giorgianni v The Queen (1985) 156 CLR 473 and 504-507; He Kaw Teh v The Queen (1985) 157 CLR 523 at 570. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.” (supra at 3)

67 The statement by the High Court that care needs to be taken where the phrase “wilful blindness” is used, does not call for a specific direction in relation to such phrase. The concern to which the Court is directing attention is that of ensuring that there is no distraction from a consideration of the issue of knowledge that must be proved by the Crown as a matter of fact beyond reasonable doubt.

68 The reference by the Trial Judge to the Appellant “being wilfully blind” is right at the end of the relevant section of the summing up. The meaning of such phrase as used in the summing up is, in my opinion, quite clear from those passages of the summing up which preceded it, and there is no question of distraction of the jury from a consideration of the issue in the case, namely knowledge, nor as to the onus of proof being on the Crown in relation to such issue.

69 In my opinion the passages in the summing up the subject of the present complaint do not sustain such complaint. Furthermore, no further direction or explanation was sought by counsel who appeared for the Appellant at trial. The situation is one to which Rule 4 has clear application.

70 In my opinion, there was no misdirection as claimed in grounds of appeal (ix) and (x), and in any event the Appellant should not, in the circumstances, be given leave to rely on such grounds.

Ground (xi)

71 The directions to the jury as to the use they could make of the flight by the Appellant when he absconded from the police at the restaurant at Ashfield on 4 May 1997 were extensive. They were not the subject of any request for further direction at the trial. However, a challenge is now made in relation to the evidence concerning the flight of the Appellant, on the basis that his wife was not permitted to give evidence of what the Appellant had told her as to his reason for fleeing from the police. The evidence that the Appellant’s wife is said to have been prepared to give related to what is alleged to have been said by him to her in Thailand: namely that he had fled because he was concerned that the police were going to say he was the boss of the criminal enterprise, or words to like effect. The rejection of such evidence was, it was argued, an error, since s 108(3) of the Evidence Act 1995 (the Act) made it admissible.

72 At the trial, two bases of admissibility of the exculpatory statement by the Appellant to his wife as to his reason for flight were advanced: the first was s 66 of the Act; the second, s 108(3) of the Act.

73 Section 66 provides that:

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been called, or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

74 The Appellant’s wife did not see him in Thailand until “after a long while”. Even then, he did not tell her why he had run away, but did so only when she pursued it “after a while”.

75 From this evidence, the Trial Judge concluded that s 66 did not justify the admission of the evidence of the representation allegedly made by the Appellant to his wife in relation to his flight from the police, since at the time such representation was made (if it was made) it was not, as a matter of fact, “fresh in the memory” of the Appellant.

76 That phrase was construed in Graham v The Queen (1998) 195 CLR 606, in which Gaudron, Gummow and Hayne JJ said:

“The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended, is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days…” (supra at 608)

77 It is clear from his Honour’s analysis that he was not satisfied as to the close proximity or the “contemporaneity or near contemporaneity” (Graham v The Queen (supra at 614 per Callinan J, with whom Gleeson CJ agreed)) of the flight on the one hand and the making of the representation on the other.

78 In my opinion, the conclusion by his Honour in this regard was one which was open to him on the evidence before him and his conclusion did not involve any error of law. As a consequence the evidence was not admissible as an exception to the hearsay rule under s 66 of the Act, and thus not admissible as evidence of the truth of the facts asserted in the relevant representation (Papakosmas v The Queen (1999) 196 CLR 297 at 309-310 per Gleeson CJ and Hayne J; at 315 per Gaudron and Kirby JJ).

79 The primary rule provided in s 102 of the Act is that evidence that is relevant only to the credibility of a witness is not admissible. This primary rule is subject to a number of exceptions, one of which is contained in s 108(3) of the Act.

80 Section 108(3) provides as follows:

“(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is, or will be, suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of suggestion,
and the Court gives leave to adduce the evidence of the prior consistent statement.”

The word “witness” includes a reference to “a party giving evidence” [Dictionary: Part 2, Cl. 7].

81 The Trial Judge held as follows:

“Section 108, in my opinion, would not permit this evidence to be given. Section 108(3), in my opinion, only applies where the particular witness in the witness box has had an allegation made against her that she fabricated or reconstructed evidence, or has given evidence as a result of a suggestion, or it is likely from the thrust of the case that is going to be made that that will be suggested.
…
s 108(3) in my opinion, means simply this, that if a witness has put to him or her that he or she has fabricated evidence etc, then evidence of a prior consistent statement can be put forward to rebut that suggestion. It is possible because of the way in which the subsection is worded that that need not be done in reply. It could even be done in chief, although one would have to have a fair degree of prophetic to be able to do that, but I suppose it is possible.”

82 In my opinion, in limiting s 108(3) so that it “only applies where the particular witness in the witness box has had an allegation made against her”, his Honour fell into error. Section 108 is couched as an exception to the rule of exclusion expressed in s 102 of the Act. However, the mere fact that the operation of such rule is negated in the circumstances delineated in s 108(3)(a) and (b) does not render the evidence admissible. It must still pass the test as to relevance prescribed in s 55, and is subject to the discretionary considerations in relation to exclusion that are prescribed in s 135. In a criminal trial, the evidence must not infringe s 137 where it is adduced by the prosecutor. The discretions conferred by s 108(3) and s 135 bring into play the considerations set out in s 192 of the Act. The Trial Judge did not turn his mind to such matters because he determined that the evidence was not admissible as a result of the construction he placed on s 108(3).

83 A prior consistent statement to which s 108(3) refers is not admitted under that subsection other than on the question of credibility, and its admissibility is not dependent on common law notions of recent invention, fabrication or reconstruction (BD (1997) 94 A Crim R 131 at 140-141 per Hunt CJ at CL). The prerequisites for admission of a prior consistent statement under s 108(3) are as set out in s 108(3)(a) and (b). “The witness” referred to in s 108(3)(a) and (b) is the same person as that referred to as “a witness” in the introductory portion of s 108(3). Provided that evidence of a prior inconsistent statement of such witness has been admitted, or that evidence given by such witness is, or will be, the subject of a suggestion that it has been fabricated, etc, s 108(3) exempts from the operation of the credibility rule of exclusion, evidence of a prior consistent statement, whenever made. Questions of the time when the statement was made, the likelihood of an accurate memory in relation to the statement, the importance of the evidence, whether its admission would be unfair to a party, the surrounding circumstances, and other matters touching on the probative value and reliability of the evidence, will be relevant to the exercise of the discretions conferred by ss 108, 135 and 192. However, provided that the conditions prescribed in s 108(3) are met and the evidence is relevant, then it would be prima facie admissible.

84 At the hearing, the Appellant gave evidence in chief that he fled from the police because he was concerned that they were going to accuse him of being the boss of the criminal enterprise relating to the heroin the subject of the charge. In his evidence in chief he was asked:

“Q: Sir, did you at some stage decide that you were no longer going to cooperate with the police?
A: Yes.
Q: Why was that?
A: Because I was frightened, I was worried, because I was told that I might be accused of being a Lo Sai, so I was scared and I was thinking that if there is a chance I will run away.
Q: Is that what you did?
A: Yes.” (AB 67)

85 In cross-examination on this topic, his explanation was challenged. He was asked:

“Q: You fled, or escaped, because you knew you were guilty of a serious crime?
A: Well, because of what he said to me, because I felt this was a serious matter.” (AB 114)
…
“Q: Who was your boss?
A: See, they said they would blame it all on me.
Q: You just said that you were afraid they would prosecute your boss; who is your boss?
A: That – they said I had a boss.
Q: I want you to answer the question, you said I was afraid they would prosecute my boss; who is your boss?
A: Well, the policeman had said to me Ah Dai was my boss, that’s what they said.
…
Q: If you didn’t have a boss, you had nothing to fear, did you?
A: Well, because he had told this matter was serious. If I didn’t cooperate they would arrest me and blame everything on me, so I mean I was scared.” (AB 115)

86 It is, in my opinion, significant that the Appellant did not give evidence, in chief or otherwise, that he had told his wife as to the reason for his fleeing from the authorities. On the proper construction of s 108(3), such evidence from him could have been admissible because it was apparent that his version of the events in which he was involved and his reasons for flight would be the subject of cross-examination and adverse suggestion in relation to its, and his, credibility. The fact that such evidence was not led from him would not, however, render inadmissible evidence from his wife in that regard that was otherwise admissible. In this regard, a real question arises as to how the fact that, months after the event, a person suspected of having sought to obtain possession of a commercial quantity of heroin makes an exculpatory statement to his wife as to his reasons for flight, operates to re-establish his credit. Such a consideration operates both in relation to the applicability of s 108(3) in relation to such a statement and to the exercise of the discretion conferred by such section to allow of disallow such evidence.

87 The fact that an error was made by the Trial Judge in relation to the evidence referred to above does not, of itself, mean that there should be a new trial. A new trial will be granted only where there has been a miscarriage of justice. Had the evidence been excluded by virtue of the exercise of the discretion conferred by s 108(3), or as a result of the application of s 135 (as could have been the case), I do not think it could be said that a miscarriage of justice had occurred. In this regard, it is material to consider the limited basis on which the evidence in question could have been admitted, the fact that evidence of flight was but one of a number of pieces of evidence on which the Crown relied, that in relation to the credibility of the Appellant his excuse for flight as detailed in the witness box was also but one of many matters that went to his credibility. In addition, what may properly be regarded as the relative unimportance of the evidence, together with the fact that even if adduced it did not seek to exculpate the Appellant from involvement entirely, but only as to the degree or extent of his involvement, would in combination have provided an additional basis on which the Trial Judge could have exercised the discretion conferred on him by s 108(3) not to allow the evidence to be adduced. Similar considerations would be appropriate to support a decision adverse to the Appellant under s 135 of the Act. True it is that the Trial Judge did not exercise the discretion conferred by s 108(3), nor that conferred by s 135. However in determining the effect to be given to the error of the Trial Judge, such considerations are material. The fact that the same conclusion – ie the rejection of the evidence - is arrived at as a result of a misconstruction by the Trial Judge of s 108(3) does not, in my opinion, change the conclusion that such rejection did not result in a miscarriage of justice.

88 The foregoing conclusion is fortified by the strength of the Crown case generally, and the clear rejection by the jury of the Appellant’s evidence and that of his wife in exculpation. As a consequence, I am of opinion that it should not be said that there was a miscarriage of justice in the trial because of the error of construction and consequent rejection of evidence from the Appellant’s wife in relation to his asserted reasons for flight.

89 This ground of appeal fails.

90 Before I leave this topic, I should say that the course taken by the Trial Judge left open a degree of speculation as to the precise evidence that would have been given by the Appellant’s wife. The better course to adopt in such cases is for the Trial Judge to have the relevant evidence taken on the voir dire, and then to rule on the basis of the actual evidence so given, rather than on the basis of statements made from the bar table as to what it is anticipated the evidence may be. Experience teaches that in a number of instances, the evidence adduced may not be as anticipated. Indeed, in some cases, the very form of the evidence and the cross-examination that takes place on it, instead of restoring or assisting in relation to the credit of an accused person, may in fact be detrimental to the credit of such person.

LEAVE TO APPEAL AGAINST SENTENCE

91 On 29 June 2001 the Appellant was sentenced to imprisonment for 20 years from 17 August 1999 until 16 August 2019 with a non-parole period of 12 years to date from 17 August 1999 and to conclude on 16 August 2011 (AB 395). The Appellant has sought leave to appeal against the sentence on two grounds:

(1) The sentencing judge overstated the importance of the Applicant’s role in the drug enterprise and the degree of his criminality;

(2) The sentence was manifestly excessive.

92 The second ground was not pressed as a separate ground, it being contended that the sentence imposed “was excessive … on the basis that the sentencing judge fell into error in assessing the role of the (Appellant) in the enterprise and the level of his criminality.”

93 In order to determine the appropriate sentence that should be imposed on the Appellant, it was necessary for the Trial Judge to take into account all the circumstances of the offence. In order to do so, it was necessary for him to make findings of fact, and in so doing to form his own view of the facts, so long as such view did not conflict with the jury’s verdict (Savvas v The Queen (1995) 183 CLR 1 at 8; Cheung v The Queen (2001) 76 ALJR 133 at 136; Regina v Martin (1981) 2 NSWLR 640 at 642).

94 In Cheung v The Queen (supra) the High Court expressly approved the principles concerning the law and practice of sentencing referred to in the decision of the Court of Criminal Appeal in Regina v Isaacs (1997) 41 NSWLR 374 as follows:

“1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury…
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings…
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury…
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender… However the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender...” (supra at 136-137)

95 Counsel for the Appellant submitted that a finding should not have been made, nor should be made, that the Appellant played an organisational role in the relevant criminal enterprise. Rather, it was argued, the imposition of the sentence on the Appellant should have been approached on the basis that he “did very little”, and that his role in the criminal enterprise was “similar in criminality to that of a courier”.

96 The sentence to be imposed will depend on the offence charged and what it is that the convicted person has done. In The Queen v Olbrich (1999) 199 CLR 270 it was said that in the context of several persons being charged with various different offences arising out of an importation of drugs:

“…the distinction between ‘couriers’ and ‘principals’ may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms… Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced.” (supra at 279)

However, it should at all times be borne in mind that in the same case, the High Court pointed out that:

“We do not accept that the identification of the precise nature of the accused’s involvement in an act of importation of prohibited drugs is an essential element of the sentencing process.” (supra at 277)

and:

“…sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.” (supra at 278)

97 The Trial Judge detailed the quantity of heroin involved in the charge. On any view it was large, and well in excess of a commercial quantity of such drug. The involvement of the Appellant in the events involving the drug were reviewed. The evidence in this regard included both physical and electronic surveillance. The physical surveillance material, combined with that derived from the listening devices, revealed that the Appellant and the man Trung took the boxes containing the drugs to the unit premises at Lakemba. Both men went inside the premises, and Trung commenced to open the tins in which the drugs were concealed using a number of can openers. In the premises in which the cans were opened, a number of items that were relevant to a drug distribution enterprise were found. These included a set of weighing scales, boxes containing clear plastic snap-sealed bags, and a number of rolls of masking tape. The 140 grams of heroin that had been secreted in seven of the eight cans that had been opened by Trung were found in a shoe box near the front door of the relevant flat premises. When he was arrested, the Appellant was found to have a large sum of money on him, and the other items referred to in paragraph 13 above.

98 The arrest and subsequent offer by the prisoner to assist the Australian Federal Police in apprehending Duncan Lam, probably also known as Ah Dai, were detailed. His offer was, in effect, to assist the police in obtaining evidence that Duncan Lam, not he, was the Lo Sai (boss). The flight of the Appellant was also dealt with in the course of the review of the Appellant’s evidence. The Trial Judge thought “his evidence was unconvincing and hers (ie, his wife’s) also lacked any convincing quality (AB 384). He did not accept that the Appellant had come to Australia on false documents earlier in 1997 for the purpose of seeing his mistress. He was, however, unable to conclude beyond reasonable doubt the precise purpose of this visit. Against this background, he said:

“All that can be said is that he came into and out of Australia on a number of occasions, that he was a man who was capable of getting false documents in three continents … China, Thailand and Australia. The fact that he was prepared to come to Australia to take part in this operation to my mind indicates criminality of a high order. He obviously did not come to Australia merely to be someone who lifted boxes into a car and travelled with someone into a flat a number of kilometres away. His role was more important than that.

His activities on the day included making phone calls, going to see (the) man Lam, obviously having a lot to do with the flat. He had access to it, keys to it, and had a direct connection with the lessee of it. This establishes to my satisfaction beyond reasonable doubt that he had a role in the organisation which was more important than that of Mr Tung. In my opinion the evidence establishes beyond reasonable doubt that the prisoner’s role concerned details of the organisation of the delivery, but I cannot say what he was to get for his part in it.” (AB 385)

99 Two factual matters were relied on in support of the first ground of appeal. They were:

(i) that the Appellant had access to the unit at Lakemba;

(ii) that the Appellant had the keys to the unit.

Both were said to be erroneous.

100 The attack made on the finding of fact made by the Trial Judge that the Appellant “had access to the flat” is not well founded. That finding is supported by the evidence. Thus, the Appellant drove Mr Trung to the unit at Lakemba with the heroin after it had been recovered from Landsvale. He assisted in the transfer of the boxes containing the heroin from the vehicle to the unit. He was inside the unit with Mr Trung, who opened the cans in which the heroin had been secreted, and in which unit the various items that were appropriate for the breaking up of the heroin into measured saleable quantities were found that same afternoon. It was to the same unit that he returned (where he was arrested) after contact with him had been lost with him in Kensington.

101 Whilst it is true that there was no evidence that the Appellant had keys to the unit, the exclusion of this consideration still leaves ample basis for the other findings made by the Trial Judge in relation to the involvement of the Appellant in the criminal enterprise. The finding that the Appellant was “a person of considerable criminal connections and considerable criminal ability” (AB 386) was supported by the evidence, for example: the evidence connecting him with a Triad Society in Hong Kong, his conviction and prison sentence for illegal possession of firearms and ammunition, his ability to get false travel documents in China, Thailand and Australia and his ability to get out of Australia and into Thailand after his escape from the police on 4 May 1997. It was also within the ambit of facts open to be found by the Trial Judge that the Appellant’s role was an organisational one. His role was above that of a mere driver or courier, and he was clearly a willing, active participant in the enterprise. For example, the evidence revealed that he made and received a number of telephone calls in the course of his activities on 4 May 1997. These involved the occupier of the flat and Mr Trung, who rang him apparently after the major part of the heroin was not able to be located when the seven pineapple tins were opened. They also involved Duncan Lam, the establishing of whose important role in the criminal enterprise was the subject of an offer by the Appellant to police. He met with Mr Lam at Kensington, he drove in Mr Lam’s car, and was engaged in activities with him in a reserve in the Eastern suburbs, and in making further telephone calls.

102 In my opinion, the first attack on the findings by the Trial Judge fails and success in the second attack in relation to the words “had … keys to it” (ie, the unit) at Lakemba does not vitiate the general conclusions by the Trial Judge relevant to sentence.

103 In the present case the Trial Judge determined, in effect, that the Appellant had a greater involvement than as a mere courier or driver but was not the mastermind. In sentencing the Appellant the Trial Judge, correctly in my opinion, proceeded on the basis that the Appellant was somewhere between the two. It was not necessary in the circumstances to determine the precise role of the Appellant. Generally, this will not be possible. The role of an accused person must be inferred from the circumstances, and there were ample circumstances in the present case from which the Trial Judge could properly determine that the Appellant played an organisational role in the criminal enterprise – at least in that part of it that was concerned with the recovery of the narcotics prior to their distribution into the Australian community.

104 The crime of which the Appellant was convicted was serious. The amount of heroin involved exceeded the commercial quantity by more than 30 times. The involvement of the Appellant in the relevant part of the criminal enterprise was significant. The correctness of the sentence was not undercut by factual error as asserted on behalf of the Appellant. In the circumstances, I do not think it can be said that the sentence imposed on the Appellant was manifestly excessive.

CONCLUSION

105 I would propose that the appeal by the Appellant against his conviction be dismissed, that leave to appeal against the severity of his sentence be granted, but that the appeal against such sentence be dismissed.

106 Bell J:

I agree with O’Keefe J.

107 ORDERS

The orders of the Court will be:

(i) Appeal against conviction dismissed.

(ii) Leave to Appeal against severity of sentence granted.

(iii) Appeal against sentence dismissed.

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Last Modified: 05/05/2003