R v Chen - [2002] NSWCCA 174

No judgment structure available for this case.

Reported Decision:
(2002) 130 A Crim R 300

New South Wales

Court of Criminal Appeal

CITATION: R v Chen & Others [2002] NSWCCA 174

FILE NUMBER(S): CCA 60079/01; 60082/01; 601220/01; 60099/01

HEARING DATE(S): 10, 11 December 2001

JUDGMENT DATE:
11 June 2002

PARTIES :

Regina v Wei Ming Chen
Regina v Saud Siregar
Regina v Sidiki Ismunandar
Regina v Khong Hoi Lau

JUDGMENT OF: Heydon JA; Sully J; Levine J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0061
00/11/0371
99/11/0730
99/11/0375

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : E L Fullerton SC (Crown
A J Bellanto QC/P Lowe (Chen)
A M Barrie (Siregar)
D G Dalton (Ismunandar)
A J Bellanto QC/P Lowe (Lau)

SOLICITORS: Commonwealth DPP (Crown)
Raymond Lee & Co (Chen)
George Sten & Co (Siregar)
Freemans (Ismunandar)
Borak & Co (Lau)

CATCHWORDS: Criminal law - Customs Act 1901 (Cth) s 233B - importation of prohibited goods -narcotics - heroin - appellants convicted at trial - appeal against conviction and sentence - Courts - jurisdiction - inherent powers - acts of Commonwealth marine vessel in pursuit of appellants' vessel - pursuit of compulsive nature - whether nature of pursuit deprived court of jurisdiction - whether proceedings an abuse of process - Evidence - admissibility - Evidence Act 1995 (NSW) s 138 - discretion to exclude illegally or improperly obtained evidence - whether seizure and search of marine vessel within Australian waters unlawful or irregular - whether evidence so obtained colourable by any such unlawful or irregular conduct - whether admission of evidence a miscarriage of discretion - Constitutional law - judicial powers - Constitution Act 1901 (Imp) s 71 - whether power of Director of Public Prosecutions under Crimes Act 1914 (Cth) s 21E to apply to Court for increase of sentence an exercise of Commonwealth judicial power - Evidence - admissibility - Evidence Act 1995 (NSW) s 102 - whether evidence of undertaking relevant only to a witness' credibility - evidence of witness' status - Criminal law - sentence - serious drug offences - life term without parole - principles relating to orders for

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Evidence Act 1995 (NSW)
Judiciary Act 1903 (Cth)

CASES CITED:
Adam v The Queen (2001) 183 ALR 625
R v Booth (1982) 8 A Crim R 81
Bunning v Cross (1978) 141 CLR 54
Cheung v The Queen (2001) 185 ALR 111; [2001] HCA 67
R v Checconi (1988) 34 A Crim R 160
R v Diamond (NSWCCA, unreported, 18 February 1993)
R v Gonzales-Betes [2001] NSWCCA 226
R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42
R v Kalache (2000) 111 A Crim R 152
R v Law Kuan (NSWSC, unreported, 31 March 1999)
Liberato v The Queen (1985) 159 CLR 507
Chu Kheng Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1
Lowe v The Queen (1984) 154 CLR 606
R v Mandagi [2002] NSWCCA 57
R v Megitt [1999] NSWSC 606
Postiglione v The Queen (1977) 189 CLR 295
Salmon v The Queen [2001] WASCA 270
R v Schmahl [1965] VR 745
R v Thomson and Houlton (2000) 115 A Crim R 104
R v Twala (unreproted, 4 November 1994, Badgery-Parker J)
R v Wong and Leung; (2001) 185 ALR 233; [2001] HCA 64
R v 'YZ' [1999] NSWCCA 48
Veen v The Queen [No 2] (1988) 164 CLR 465

DECISION: See paragraph 291

IN THE COURT OF
CRIMINAL APPEAL

60079/01
60082/01
60122/01
60099/01

HEYDON JA
SULLY J
LEVINE J

11 June 2002

REGINA v WEI MING CHEN

REGINA v SAUD SIREGAR

REGINA v SIDIKI ISMUNANDAR

REGINA v KHONG HOI LAU

Criminal law – Customs Act 1901 (Cth) s 233B – importation of prohibited goods –narcotics – heroin – appellants convicted at trial – appeal against conviction and sentence
Courts – jurisdiction – inherent powers – acts of Commonwealth marine vessel in pursuit of appellants’ vessel – pursuit of compulsive nature – whether nature of pursuit deprived court of jurisdiction – whether proceedings an abuse of process
Evidence – admissibility – Evidence Act 1995 (NSW) s 138 – discretion to exclude illegally or improperly obtained evidence – whether seizure and search of marine vessel within Australian waters unlawful or irregular – whether evidence so obtained colourable by any such unlawful or irregular conduct – whether admission of evidence a miscarriage of discretion
Constitutional law – judicial powers – Constitution Act 1901 (Imp) s 71 – whether power of Director of Public Prosecutions under Crimes Act 1914 (Cth) s 21E to apply to Court for increase of sentence an exercise of Commonwealth judicial power
Evidence – admissibility – Evidence Act 1995 (NSW) s 102 – whether evidence of undertaking relevant only to a witness’ credibility – evidence of witness’ status
Criminal law – sentence – serious drug offences – life term without parole – principles relating to orders for

The appellants staffed a marine vessel seized and searched by officers of the Commonwealth in purported exercise of powers conferred on those officers by Customs Act 1901 (Cth) ss 59, 184 and 185. Seizure of the appellants’ vessel followed a series of events involving entry into, exit from, and re-entry into Australian territorial waters by that vessel. These movements were occasioned by the presence and actions of Commonwealth marine vessels in the area. Searches of the seized vessel conducted by Commonwealth officers revealed quantities of narcotics, the importation of which violated Customs Act 1901 (Cth) s 233B. A jury found the appellants guilty of the offences charged. The appellants appealed against conviction and sentence.

Relevantly, it was argued that (1) the court had no jurisdiction to hear the prosecution because of the actions of the vessel; (2) pursuant to Evidence Act 1995 (NSW) s 138 the trial judge should in his discretion have excluded evidence obtained through seizure and search of the appellants’ vessel because the desirability of admitting such evidence did not outweigh the undesirability of admitting the allegedly unlawfully obtained evidence; (3) in leading certain credibility evidence pursuant to Crimes Act 1914 (Cth) s 21E, the NSW Director of Public Prosecutions usurped Commonwealth judicial power conferred by Constitution Act 1901 (Imp) s 71; and (4) evidence as to, or tendering as an exhibit of, a written undertaking to co-operate with law enforcement authorities contravened the rule against admission of evidence relevant only to a witness’ credibility under Evidence Act 1995 (NSW) s 102.

(The Court) dismissing the appeals against conviction,

1. While a Court before whom a defendant was brought to trial might decline to exercise jurisdiction because of an abuse of process, the conduct of the Commonwealth was not an abuse of process, and the Court had jurisdiction: [12]-[18].

R v Horseferry Road Magistrates’ Court; Ex parte Bennett

2. All acts of boarding, search, arrest and seizure were lawful when they occurred. Even if they were not, the extraordinarily high probative value of such evidence, together with the other factors listed in s 38, meant that the desirability of admitting such evidence far outweighed any possible undesirability: [19]-[21].

3. The power of the court to form and act on particular opinions reflected in its findings was a judicial power; the power of the Director of Public Prosecutions to initiate the proceedings before the court was not. Nothing the Director of Public Prosecutions was empowered to do under Crimes Act 1914 (Cth) s 21E did or could result in an automatic, self-executing increase in sentence. The limit of that power was to bring the offender before a competent court to seek orders to increase sentence according to s 21E: [35].

Chu Keng Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs & Anor

R v YZ

4. The credibility rule was not breached by the leading of evidence as to, or tendering as an exhibit of, the written undertaking. The evidence went to credibility but also to the true status of the witness as an accomplice. The ancient rule allowing evidence of status was not abrogated by the words of Evidence Act 1995 (NSW) s 102. In any case, factors such as a failure to object to tendering of the undertaking weighed against a finding that there had been a miscarriage of justice: [28].

R v Booth

R v Gonzales-Betes

5. As to sentence, the applications for leave to appeal against sentence by Chen and Lau were granted, but the appeals were dismissed.

O R D E R S

2. The applications by Chen and Lau for leave to appeal against sentence are allowed; the appeals against sentence are dismissed.

3. The applications by Siregar and Ismunandar for leave to appeal against sentence are stood over to the next Registrar’s callover.

60079/01
60082/01
60122/01
60099/01

HEYDON JA
SULLY J
LEVINE J
11 June 2002

REGINA v WEI MING CHEN

REGINA v SAUD SIREGAR

REGINA v SIDIKI ISMUNANDAR

REGINA v KHONG HOI LAU

JUDGMENT

THE COURT:

Introduction

1 On 17 October 2000 the four appellants, Messrs. Chen, Siregar, Ismunandar and Lau, were presented for trial in the District Court at Sydney before his Honour Judge Shadbolt. They were so presented upon a joint indictment charging that between about December 1997 and 14 October 1998 at Grant’s Beach, North Haven and elsewhere, they had been knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a commercial quantity of heroin being not less than the commercial quantity applicable to heroin.

2 All four of the appellants pleaded not guilty and they were put accordingly upon trial by jury. Each was represented at trial by counsel well experienced in the conduct of criminal trials. On 21 November 2000 the jury returned against each appellant a verdict of guilty as charged. On 16 February 2001 his Honour Judge Shadbolt sentenced each of the appellants to imprisonment for life, but fixing in the cases of the appellants Siregar and Ismunandar a non-parole period of 20 years.

3 Each appellant now challenges his conviction and seeks leave to appeal against the sentence passed upon him.

4 The relevant provisions of the Customs Act 1901 establish 1.5 kilograms as the minimum quantity of heroin constituting a commercial quantity of that drug. The quantity of heroin involved in the cases of the appellants was a gross weight of 389.9 kilograms, and a net weight of 252.3 kilograms. The heroin was imported in the form of some 1,132 compressed blocks of white powder. As of the date of trial, the amount involved in the particular importation was the largest such importation to have been detected by the relevant authorities.

Facts

5 The remarks on sentence of his Honour Judge Shadbolt contain a clear and careful survey of the relevant facts. It is convenient to have regard to his Honour’s survey so as to set generally the scene for a consideration of the particular grounds of appeal that were maintained by each particular appellant.

6 The general background facts are stated by his Honour as follows:

“On 13 October 1998, the Uniana, a small cargo boat, launched a speed-boat with a three-man crew just off the coast of northern New South Wales near Port Macquarie.

The boat reached shore. The occupants were arrested and the shore-based support group was pursued and its members taken into custody at Nabiac. Thirty-one duffel bags containing many kilos of heroin powder were stowed in the speed-boat. In the early hours of 14 October the Uniana was pursued by two Customs boats and the HMAS BENDIGO. It was arrested, boarded and searched and the remaining crew were taken into custody.

The amount of heroin powder when analysed was found to weigh 389 kilos and contained 252 kilos of pure heroin with an estimated street value of $620,000,000.

It was the conclusion of a long and doubtless expensive investigation which ranged from Hong Kong to Australia and New Zealand.

The Uniana was in fact a fishing trawler which has been specially converted for the heroin trade. Although its gunwales had been raised, the cargo hold so enlarged contained only the speed-boat. The ship’s only functional derrick was installed solely for the purpose of lifting the speed-boat and launching it. The remainder of the space was used to accommodate long range tanks to obviate the need for frequent re-fuelling.

One of those intimately concerned in the importation of the heroin, a prisoner called Chan, gave evidence of the ship’s voyage from Hong Kong to the Andaman Sea where the heroin was, after a ten day wait, loaded at night many miles from the coast. Also brought on board was a Chinese national. The voyage then continued down the Kra Isthmus through the Straits of Malacca to Singapore where, by pre-arrangement, a bunkering lighter came out to meet it and the Uniana was re-fuelled.

It then proceeded without again stopping, except to lower the speed-boat in order to test its engine, towards Australia, sailing south in the Java Sea, north through the Makassar Straits and then south-east along the northern coast of New Guinea until it reached Atoa where it turned south, sailing through the Coral Sea to Australia and its final destination at Port Macquarie.

The heroin had been stowed in a secret compartment beneath the hold which housed the speed-boat. This compartment contained a specially constructed valve which could be used to flood it in case of sudden search and so deceive any Customs officers.

The crew, largely Indonesian, had been recruited over a period for another small vessel, the On Shun, and on the day before they left Hong Kong the crew was transferred to the Uniana which had, a little time before, been renovated and registered in Belize.

Much, if not all, of the foregoing was not in dispute. The issue central to the case was that of knowledge. The prisoners had, it was conceded, been involved or concerned in the importation of heroin. None however conceded that this concern was knowing concern.

The case against each was, as a result, circumstantial.”

The Appeal of Chen

7 Five grounds of appeal were notified. All but one of them were multi-faceted. We shall deal in turn with each of the grounds; but before doing so, will return to his Honour Judge Shadbolt’s factual summary, extracting from that summary his Honour’s canvass of the Crown case against the appellant Chen on the all-important issue of knowledge.

8 Judge Shadbolt summarises as follows the Crown case at trial against the appellant Chen on that issue:

“a. He accompanied the heroin from the shore to the speed boat and on the speed boat to the Uniana.

b. He unpacked the heroin from the sacks and re-arranged the blocks in sports bags. This task was done at night in the hold of the Uniana where the speed boat had been replaced in its cradle.

c. It is a reasonable inference that he secreted the bags in the compartment below the deck of the hold.

d. It would have been clear from the size and the nature of the small packages that they contained heroin.

e. He accompanied the heroin to Australia when it left the Uniana.

f. He was found in possession of a Glock semi-automatic pistol and false passport.

g. His passport discloses a number of journeys through South-East Asia and because of the clothing he was wearing in the picture displayed in it, this document was obtained at some other time than this last journey, for that clothing was never found in his possession at Grant’s Beach.”

9 The appellant Chen gave evidence at his trial. He asserted that he was in truth an economic refugee. He said that his original intention had been to go as a refugee to Italy; but that the arrangements which had been made in that behalf were changed, Australia replacing Italy as his ultimate destination. He denied having any knowledge that the Uniana was to receive heroin. He asserted that his having accompanied the drugs was a mere coincidence. He denied any involvement in the re-packaging of the drugs. He gave as part of his version of events evidence of having journeyed through Vietnam and Burma, a part of his evidence of which Judge Shadbolt remarked that it was “riven by inconsistencies and relied heavily on strange coincidences”.

10 We turn to this appellant’s particular grounds of appeal.

“Ground 1

The Trial Judge erred in holding that the powers exercised by the Commonwealth to detain the Uniana pursuant to ss 59 and 185 of the Customs Act 1901, were lawfully exercised. In consequence:

(a) The Court had no jurisdiction to hear the evidence relating to the detention, search and arrest of the Uniana .

(b) The evidence led by the Crown relating to the detention, search and arrest of the

Uniana

was inadmissible.”

11 It is necessary, for the purpose of dealing with this ground of appeal, to amplify as follows the relevant facts.

[1] The trial of the four present appellants was the third in sequence of a series of related trials of various persons connected with the events earlier herein described. The first in that sequence of trials took place, broadly speaking, in February 2000; and the second trial in the sequence took place in, broadly speaking, March 2000.

[2] In each of those antecedent trials, an attempt was made by counsel for the various accused in those trials to preclude the leading by the Crown of any evidence of the results achieved in the wake of the search and seizure of the Uniana . In the February trial, there was an application to exclude the particular evidence. In the March trial there was an application for a permanent stay of proceedings. The essential point argued was the same in each of the two cases.

[3] The point essentially argued can be summarised as follows:

(a) The Uniana was first called on to heave to at a time when it was within the 12 mile nautical limit of Australian territorial waters.

(b) That requirement made of the master of the Uniana was a lawful requirement, and the master of the Uniana did not comply with it.

(c) Thereafter the Uniana moved to a point somewhat outside the 12 mile nautical limit.

(d) Thereupon the pursuing Customs and Naval authorities compelled, in effect, the Uniana to return within the 12 mile nautical limit.

(e) The Uniana having thus returned, under improper coercion, within the nautical limit, the relevant search and seizure took place.

[4] In the February trial his Honour Judge Shadbolt delivered on 15 February 2000 a judgment in which he overruled the objection to the admissibility of the relevant evidence. In the March trial, his Honour delivered on 14 March 2000 a judgment in which he rejected the application for a stay of proceedings. At the trial of the present appellants it was agreed that those rulings would be taken as having been given, also, for the purposes of that current trial.

Uniana

[6] His Honour, in that same judgment, then noted briefly some authorities which had been drawn to his attention. It is not necessary to repeat the detail of what his Honour said in that regard. His Honour then expressed the view: “that the boarding of the vessel under s 185 and the subsequent search was lawful as was the arrest of all the crew. It follows that the exercise of powers under s 188, 189, 190 and 194 of the Customs Act as it then was, were also legal.”

Evidence Act

“The probative value of evidence obtained, both material and oral, was extraordinarily high. The arrest not only discloses where the speed boat, then on Grant’s Beach, came from, where the heroin was obtained and where it was stowed and who had management and control over it, but the falsified log sheet shows the consciousness of guilt in the accused who created it. It is therefore very important evidence. The proceedings are a trial for the importation of a massive amount of heroin. The impropriety, if that exists, of inducing the ship to return to Australian territorial waters was in all the circumstances understandable and was in all probability not deliberate. It did not in my view constitute a breach of Article 9 of the International Covenant on Civil and Political Rights, but [it] would however have been impossible to obtain that evidence without the impropriety alleged. I am of the view that the Crown has persuaded me that the evidence should be admitted, it being more desirable than undesirable to do so.”

Uniana

Uniana’s

On the worst complexion the actions of the customs officers were committed in an act of hot pursuit. The more favourable view is that they were simply unaware in those heavy seas where they were in relation to territorial limits.”

12 It is convenient to turn, next, to the way in which the submissions of the appellant in support of Ground 1 were framed. The written submissions put in support of Ground 1 read, relevantly:

Uniana

13 At the hearing of the appeal learned senior counsel for the appellant referred us to the decision of the House of Lords in Regina v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 A.C. 42. It is not necessary for present purposes to discuss in detail the facts of that case. It suffices to refer to the following extracts from the speech of Lord Griffiths at 61H-62H:

“Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. …

[I]n the field of criminal law … if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it. …

The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.

In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party.

If extradition is not available very different considerations will arise on which I express no opinion.”

14 The first thing to be said about that analysis of legal principle is, in our opinion, that it gives no support whatsoever to the proposition that a Court before whom a person is improperly brought for trial has, by reason of that antecedent impropriety, no jurisdiction at all to deal with the matter thus brought before it. Such a Court, as the decision of the House of Lords now makes clear, will be entitled, for the better maintaining of the rule of law, to refuse to exercise its jurisdiction upon the basis that to do so would be to condone an abuse of the Court’s own process. This particular decision of the House of Lords, as we understand it, gives no support to the proposition advanced in paragraph (a) of Ground 1.

15 The decision of the House of Lords apart, we do not see any basis upon which it could properly be said that his Honour Judge Shadbolt did not have “jurisdiction to hear the evidence relating to the detention, search and arrest of the Uniana”. His Honour had jurisdiction to try criminal cases in New South Wales. The appellant was presented before his Honour in New South Wales and pursuant to the invoking by the Crown of precisely that jurisdiction. The fruits of the search and seizure of the Uniana were within the jurisdiction, and were amenable to proper control by the District Court of New South Wales. The importation which was the gravamen of the offence charged against the appellant was an importation plainly committed in part on the very coast of New South Wales, and in part within that part of Australian territorial waters lying off the coast of New South Wales. In those circumstances, we do not accept the proposition that there was any doubt about the jurisdiction of Judge Shadbolt.

16 We do accept that it would have been proper for his Honour to have refused to exercise that jurisdiction had proper cause in that behalf been shown to his Honour’s satisfaction. It is clear from both of the judgments given by his Honour in February and in March 2000 that his Honour did not accept that the materials put before him during, respectively, those two trials showed any good cause why his Honour should refuse to exercise his undoubted jurisdiction for the reason that to do so would involve an abuse of the process of his Honour’s Court.

17 The principles stated by Lord Griffiths are in any event remote from the present factual context. The facts considered by the House of Lords included a forcible removal of the defendant from South Africa to England in breach of the law of South Africa, in disregard of available extradition process and in breach of international law. The conduct of the authorities here was not in breach of the law of any other country and was not in disregard of any available extradition process. It involved bringing back into territorial waters a vessel which, assuming all other elements of the case against the appellant to be established, had brought a speedboat close to Australian territorial waters which in turn contravened Australian law in those territorial waters. It is a highly controversial and largely unargued question whether the authorities had acted in breach of international law.

18 It follows, in our opinion, that Ground 1(a) has plainly not been made good. That entails the need to consider the alternative that is advanced in Ground 1(b).

19 It is clear from what we have earlier quoted from the judgments delivered by Judge Shadbolt in the February and March trials that his Honour saw the relevant question of admissibility as hinging upon the operation of section 138 of the Evidence Act 1995 (NSW). It became, thereupon, incumbent upon his Honour to exercise a judicial discretion of the kind conferred upon him by section 138. That discretion had to be exercised upon the basis of the balancing exercise required by section 138 itself: that is to say, by the prudent and sensible striking of a balance between the desirability of admitting the questioned evidence, and the undesirability of admitting the evidence having regard to the way in which it had been obtained. A decision, properly reached, that the desirability of admitting the questioned evidence out-weighed, in the circumstances of the particular case, the undesirability of admitting the evidence because of the way in which it had been obtained, rendered the questioned evidence admissible.

20 It seems to us to be clear beyond question that Judge Shadbolt carried out, precisely and carefully, the balancing exercise that was required of his Honour by section 138. We see no error, either of law or of fact, in the approach taken by his Honour to that matter.

21 Both particular limbs of Ground 1 are predicated upon a foundational proposition that Judge Shadbolt erred in holding that the detention of the Uniana had been a lawful detention. Given the findings of fact, as we have earlier noted them, made by Judge Shadbolt, we are of the opinion that this foundational proposition is not correct. It seems to us to be clear that Judge Shadbolt found as a fact that the initial demand made of the Uniana that it heave-to was made at a time when the Uniana was within Australian territorial waters. It seems to us to be equally clear that the Uniana was within Australian territorial waters at the time it was actually boarded and searched, and at the times at which, subsequently, persons were arrested and items were seized. It seems to us to follow necessarily that the actual boarding, the actual search, the actual arrests, and the actual seizures were all lawful at the times at which, respectively, they took place. The highest point at which the appellant’s argument can be put is a contention that there was some unlawfulness or illegality or impropriety occurring between the original challenge within Australian waters and the ultimate seizure and search within those same waters. Even if it be granted that there was some such irregularity deriving from things occurring outside the strict nautical limit of Australian territorial waters, the result cannot be, in our opinion, to make unlawful the seizure and search within Australian waters of the particular vessel. All that follows from such an irregularity occurring outside the territorial limit is that the lawful seizure and search were accomplished only as a result of the antecedent irregularity. That cannot, our view, make the seizure and search itself unlawful; although, as we have earlier pointed out, we accept that on the given premise, a section 138 question as to the admissibility of the fruits of the search and seizure would arise. Further, even if the actual boarding, the actual search, the actual arrests and the actual seizures were unlawful, as the trial judge was prepared to assume contrary to his primary approach, he was right to conclude that the desirability of admitting the evidence outweighed the undesirability of admitting it for the reasons which he gave, namely the “extraordinarily high” probative value of the evidence, the importance of the evidence, the seriousness of the offences, the understandable and non-deliberate character of the contravention and the difficulty of obtaining the evidence without the contravention alleged. Neither Chen nor any other appellant endeavoured to demonstrate that the trial judge’s approach under s 138 miscarried. There was no criticism of it because there could be no rational criticism of it.

22 In addition to the foregoing matters, it is necessary to consider a notice given by the appellant Chen pursuant to section 78B of the Judiciary Act 1903 (Cth). The notice propounds two matters which are said to arise under the Commonwealth Constitution or to involve its interpretation. At the hearing of the appeals of the four present appellants we were informed that, and satisfied ourselves that, no one of the Attorneys-General of the Commonwealth and of the States desired to be heard in connection with the matters thus notified by the appellant Chen.

23 So far as concerns Ground 1, the section 78B notice propounds this question: “whether the Commonwealth, in exercising powers conferred under ss 59, 184 and 185 of the Customs Act 1901, acted ultra vires in forcing the MV Uniana to return to Australian territorial waters on 14 October 1999 [sic: but read instead 1998]”.

24 It suffices to say that in our opinion the proposition thus stated, which was not argued, involves a misconception of the Commonwealth Constitution, of the Customs Act 1901 (Cth), and of the Judiciary Act 1903 (Cth).

25 For the whole of the foregoing reasons, we are of the opinion that Ground 1 has not been established.

Ground 2

“There was a miscarriage of justice by reason of the Crown calling Chan Chi Keung to give evidence on the following bases:

(a) The Crown led inadmissible evidence relating to the credit of Chan Chi Keung contrary to the provisions of the Evidence Act 1995.

(b) The evidence was in breach of section 71 of the Constitution in so far as the Crown, by exercising powers and/or functions conferred on the Commonwealth Executive pursuant to section 21E of the Crimes Act 1914 has usurped the judicial power of the Commonwealth.

(c) The appellant was denied his right for his guilt to be determined exclusively by the jury contrary to section 80 of the Constitution.

(d) In circumstances where it failed to properly and/or adequately assess the reliability of Chan Chi Keung in calling such witness in its case against the Appellant.”

26 The ground notified in paragraph (c) was abandoned at the hearing of the appeal.

As to Paragraph (a)

27 The essence of the appellant’s contention is conveniently stated as follows in the appellant’s written submissions:

Evidence Act

… The appellant contends that the issue of the jury being made aware of matters which, as a matter of propriety should be taken into account in determining whether the credit of a witness is diminished, extends only to the following subject matter:

(a) the fact that the witness is complicit in the matters which are relevant to a fact in issue; and

(b) that such witness has pleaded guilty and is to receive a discount on sentence by giving evidence at trial of other co-accused.

The appellant contends that (a) and (b) above constitute the narrow approach to the disclosure of the witness’s cooperation with law enforcement authorities and does not constitute a breach of the credibility rule. However, the further disclosure that the witness has given and signed an undertaking to assist (with such undertaking subsequently being tendered as evidence) together with evidence … that the Crown can appeal against the inadequacy of his sentence if he failed to cooperate constitutes the broad approach to disclosure of the ‘true status’ of the witness and falls foul of the credibility rule.

The fact that the witness will be complicit will, of course, be relevant to a fact in issue in the proceedings but a plea of guilty by a co-accused cannot constitute a joinder of issue which is relevant to such fact in issue. However, the fact that a complicit party may have received a discount on the sentence that would otherwise be imposed cannot be relevant to a fact in issue and can, if it is relevant at all, (which is not conceded), only relate to the credibility of that witness.”

28 Section 102 of the Evidence Act provides simply that “[e]vidence that is relevant only to a witness’s credibility is not admissible”. The first question now to be decided is, therefore, whether the evidence led by the Crown of the witness Chan’s having undertaken in writing to cooperate with law enforcement authorities breached the rule established by section 102. In that connection we observe:

[1] The appellant’s present contention that there was such breach, seems to us to be weakened by the concession, which we understand to be carried by the written submissions previously quoted, that it did not breach the section 102 rule to lead in chief from Chan the fact that he was himself complicit in the relevant importation; and that he had pleaded guilty to the offence constituted by his complicity, receiving in that behalf a sentence discounted in consideration of his agreeing to give evidence at the trial of, relevantly, the present appellant and his co-appellants. If it does not breach the section 102 rule to disclose at least so much of the true status of such a witness as Chan, then we do not see the logic in holding that the frank and truthful disclosure of the additional circumstance that he, Chan, was prepared to protect his own interests as he saw them by giving a written undertaking, should constitute such a breach of section 102.

[2] There is authority of long standing in this Court for the proposition that the true status of such a witness as the witness Chan in the present case is relevant in a sense that extends beyond credibility alone: Reg v Booth (1982) 8 A Crim R 81; followed in Reg v Gonzalez-Betes [2001] NSWCCA 226.

Booth

“The direction which practice requires a judge to give when an accomplice gives evidence for the Crown is intended to achieve a particular purpose: namely to bring to the attention of the jury that the evidence of such a witness may be in a different position from the point of view of reliability from that of other witnesses. The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect. It is left to the jury to appraise the evidence of the witness in the light of the warning given.

In my opinion the requirement that the judge give the direction and that the jury then assesses the witness’ evidence in the light of that warning provides the justification for the admissibility into evidence of evidence showing the position of the accomplice vis-à-vis the Crown which is the party calling him. In order for the jury to assess the degree of danger involved in evaluating his uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged. Such evidence, in my opinion, goes to the witness’ status as an accomplice, and that is a relevant matter for the jury to consider. It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused.” [8 A Crim R, 86,87]

[4] We agree, with respect, with that analysis of Lee J. We are not persuaded that those responsible for the drafting of section 102 of the Evidence Act intended simply to abrogate the principles thus explained. The evidence is not tendered as evidence relevant only to a witness’s credibility because it is tendered pursuant to the Crown’s duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which might not be favourable to the interests of the accused. Section 9(1) provides that the Act does not affect the operation of a principle or rule of common law in relation to evidence except in so far as the Act provides otherwise expressly or by necessary implication. Section 102 does not provide otherwise. There are other forms of evidence in chief which might, on one approach, be said to relate to credibility, while not being excluded by s 102. It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness’s expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible. We reject, therefore, the proposition basal to paragraph (a), as did this Court in R v Gonzales-Betes [2001] NSWCCA 226.

[5] Even had we been persuaded to the contrary view, we would have held that there had been, in substance, no miscarriage of justice. First , it seems to us that counsel at trial for the appellant could not have been denied the opportunity of cross-examining Chan about the matters of which we have earlier spoken: see section 103 of the Evidence Act . Secondly , had the Crown not led the particular evidence from Chan, and had that evidence thereafter been elicited in cross-examination, the practical position at trial would have been, in our opinion, substantially the same as the practical position achieved in fact. Thirdly , had the relevant material about the witness Chan been led neither in-chief nor in cross-examination, then the jury would have been called upon to consider Chan’s reliability upon an incomplete and misleading basis. It is sometimes not possible to avoid such a result, because of some countervailing, or other, legal requirement. But such a misleading presentation of a witness such as Chan is, obviously we would have thought, to be avoided if that can possibly be done. In the present matter it could be done; and was, in our opinion, properly and correctly done. Fourthly , counsel appearing for Chen at the trial did not object to the tender of the written undertaking. The transcript for 18 October 2000 records that it was admitted without objection. This attracts the operation of rule 4 of the Criminal Appeal Rules, requiring leave for the moment to be taken. There is no reason whatever why leave should be given.

As to Paragraph (b)

29 The essential contention of the appellant is that s 21E of the Crimes Act 1914 (Cth) is unconstitutional as being in breach of s 71 of the Commonwealth Constitution. The written submissions of the appellant propound the following particular propositions in support of that broad ground of appeal:

“(a) It is predicated upon the exercise of a power that is not exclusively administrative in character, being the exercise of a power that is incidental to the Judicial power of the Commonwealth.

(b) Vesting of the power in the Director of Public Prosecutions is inconsistent with the separation of the Judicial power of the Commonwealth affected by Ch III of the Constitution.

(c) The exercise of the power has the effect of compromising the integrity of the judicial system brought into existence by Ch III of the Constitution.

(d) The forming of an ‘opinion’ by the Director, which has the effect following the institution of an appeal of increasing a person’s sentence, is inconsistent with the exercise of the judicial function which is constituted by the judicial act of imposing a penalty consequent upon conviction.”

30 Section 21E of the Crimes Act 1914 (Cth) is, relevantly, in the following terms:

“(1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

(a) If the sentence imposed is reduced – specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and

(b) If the non-parole period is reduced – specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.

(2) Where:

(a) A federal sentence is imposed or a federal non-parole period is fixed; and

(b) The sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and

(c) After sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking;

The Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or the non-parole period.

(3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person’s undertaking to co-operate with law enforcement agencies, the court hearing the appeal:

(a) If it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking – must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and

(b) If it is satisfied that the person has failed in part to co-operate in accordance with the undertaking – may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.”

31 Section 71 of the Commonwealth Constitution provides for the exclusive vesting of the Judicial power of the Commonwealth in the High Court of Australia “and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.”

32 In Reg v “YZ” [1999] NSW CCA 48, this Court (Beazley JA, Sully and Dunford JJ), considered the proper construction of s 21E. We agree with the following propositions, which we take from paragraphs 29 and 44 of the joint judgment of Sully and Dunford JJ:

“It seems to us that the purpose or object underlying s 21E is, notwithstanding the manifest deficiencies in the drafting of the section, clear. The purpose or object is that an offender who fails to co-operate in accordance with a relevant promise in that regard, is not to have his sentence of imprisonment increased unless, in fact, the failure to co-operate is ‘without reasonable excuse’. We consider that the legislative object or purpose, as thus conceptualised, is better served by a construction of s 21E that would leave in this Court a jurisdiction, a power and a duty, independent of any power or duty attaching under s 21E to the Director of Public Prosecutions, to decide whether, as a matter of fact, there has been a relevant failure to co-operate ‘without reasonable excuse’.

We are therefore satisfied that on the proper construction of s 21E, although the Director, to justify the institution of the appeal, must form an opinion that the non-co-operation has been without reasonable excuse, it is for the court hearing the appeal, as a pre-condition of the exercise of its powers under subs (3), to make its own determination whether the offender has reasonable excuse for not co-operating in accordance with an undertaking given by him or her. …”

33 The joint judgment in “YZ” noted specifically that no argument had been addressed upon the question whether the determination of the question of lack of reasonable excuse under s 21E, which can have the effect of increasing the term of imprisonment to be served, constituted the exercise of the judicial power of the Commonwealth. The appellant seizes upon this portion of the joint judgment as leaving open the correctness in law of the proposition, for which the appellant now contends, that when the Director of Public Prosecutions decides, pursuant to s 21E(2): first that there has been a failure “without reasonable excuse” to co-operate in accordance with a particular undertaking; and secondly, that it is, therefore, “in the interests of the administration of justice … (to) … appeal against the inadequacy of the sentence or of the non-parole period”; then the Director, in respect of each of those two considerations, is exercising the judicial power of the Commonwealth, something which the Director cannot be empowered lawfully to do because of the imperative requirements of s 71 of the Commonwealth Constitution.

34 The appellant bolsters that submission by referring to the following propositions, which are taken from the joint judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs and Anor (1992) 176 CLR 1 at 27:

“There are some functions which, by reason of their nature, or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and ‘could not be excluded from’ the judicial power of the Commonwealth. …

In exclusively entrusting to the courts designated by Ch. III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form.”

35 We do not accept the submissions of the appellant. In our opinion, s 21E does not entail, upon its proper construction, any attempt to vest in the Director of Public Prosecutions any power the proper understanding of which is that the power is a judicial power. Nothing that the Director of Public Prosecutions is empowered by s 21E to do results, and can result, in any automatic, self-executing increase in the particular offender’s sentence. The most that the Director of Public Prosecutions can achieve is to bring the particular offender back before a Court of competent jurisdiction, appealing to that Court for an order of that Court, that order having the effect of increasing, in accordance with the provisions of s 21E, the discounted sentence imposed at first instance upon the particular offender. It is the power of the court to form and act on particular opinions reflected in its findings which is judicial power, not the power of the Director to initiate the proceedings before the court.

36 The notices given by the appellant pursuant to s 78B of the Judiciary Act raise for consideration the following question:

“Whether there has been a breach of s 71 of the Constitution in so far as the Crown, by exercising powers and/or functions conferred on the Commonwealth Executive pursuant to s 21E of the Crimes Act 1914, has usurped the judicial power of the Commonwealth.”

37 We consider, for the reasons previously given, that this question has been framed upon the basis of a misconception of the nature of the power conferred upon the Director of Public Prosecutions by s 21E. Be that as it may, the appellant’s trial did not raise any question concerning the exercise by the Director of Public Prosecutions of his power pursuant to s 21E. The witness Chan was sentenced to a term of imprisonment before he was called as a witness for the Crown at the trial of the appellant. Chan was given the benefit of a discounted sentence in return for his undertaking to give evidence for the Crown at the trial of the appellant. It is not contended, and in our opinion it could not be contended correctly, that the sentencing Judge who dealt with Chan was not lawfully empowered so to discount the sentence that would otherwise have been thought appropriate to be passed upon Chan. That is how matters stood at the moment when Chan was called to give evidence; and that is how matters stood at the moment when Chan’s evidence at trial concluded.

As to Paragraph (d)

38 The written submissions of the appellant say that the appellant:

“Relies on the circumstances of this case as detailed in these submissions, coupled with the submissions made under Ground 2(a) in support of this particular ground.”

39 We have already dealt with Ground 2(a). We will deal, otherwise, with Ground 2(d) when dealing with Ground 3.

Ground 3

“The trial of the appellant was rendered unfair in that the Crown Prosecutor failed to act fairly in the discharge and performance of her functions:

(a) By calling Chan Chi Keung to give evidence in the Crown case;

(b) By failing to concede that a direction regarding the good character of the appellant was available given the circumstances of the case.”

As to Paragraph (a)

40 In our opinion, this part of Ground 3 is without substance for the reasons appearing in the following exchange which took place at the hearing of the present appeal:

“SULLY J: Is this correct, the Crown put Chan before the jury; it did not suppress from the defence, the accused, any of the material that it had in connection with Chan; is that a correct understanding; all his statements were disclosed?

[COUNSEL]:Yes.

SULLY J: There is no question that anybody was taken by surprise?

[COUNSEL]: No.

SULLY J: Everybody knew who he was, what he was, what he had said, when he had said it?

[COUNSEL]: Yes.

SULLY J: Nobody impeded the proper cross-examination of Chan as a witness called in the Crown case, is that right?

[COUNSEL]: No.

SULLY J: So it became important to ensure that the trial Judge gave the jury the appropriate warnings and directions proper to such a case?

[COUNSEL]: Yes.

SULLY J: Leaving aside for the moment the complaint, if there is any, that the trial Judge did not give the proper directions appropriate to that difficult situation, what is the complaint about the Crown?

[COUNSEL]: The complaint is, it was the way the evidence was led and the reasons that I hope I have outlined.”

41 It appeared, thus, that no complaint was made of any alleged impropriety on the part of the Crown Prosecutor at trial. The appellant’s submissions, as they subsequently unfolded, moved away from any suggestion of impropriety on the part of the Crown Prosecutor, to a more generalised complaint which was put by learned senior counsel for the appellant in the following way:

“It was rather the way the approach or imprimatur of the Crown on his evidence had a substantial impact on the way the Judge gave rulings on the s. 38(1)(c) point because once the Crown’s view or presentation of his evidence became entrenched in the course of the trial, that view was picked up in the course of rulings by the Judge which allowed the Crown to cross-examine Chan, to visit upon Chan the Crown’s imprimatur which we say could have conveyed to the jury that this is the reason he has been called, this is the view the Crown has of his evidence, we have heard the Judge’s ruling on certain aspects, the Crown has been able to cross-examine him, the Crown is controlling this evidence, and it gave the Crown an unfair advantage. Even the example where the Crown was allowed to cross-examine its own witness gave the Crown a tactical advantage.”

42 We are unclear of what precisely is the complaint that this passage of submissions is intended to convey. Chan was, on any view, a problem witness. He had himself been implicated significantly in the illicit activities that were the subject of the trial. The fact that he had, so to speak, turned his coat, entailed, without more, that he was a potentially unreliable witness. In so far as the Crown pointed those matters out to the jury, we do not see that the appellant has any just cause for present complaint. Chan made a number of statements, some induced, and others not. Provided only that all of this material was available to the appellant at his trial, - and the contrary was not suggested at the hearing of the appeal, - then we do not see how the appellant was unfairly prejudiced by the calling of Chan as a witness in the Crown case. Chan was an indemnified witness, a fact which was disclosed fully and frankly to the jury at trial. It appears to be the case that certain statements made by Chan in connection with the grant of his indemnity were not tendered in evidence, although the indemnity itself was so tendered. Quite why the statements supporting the indemnity were not tendered was not explained at the hearing of the appeal. There does not appear to be any reason why counsel appearing for the appellant at trial could not have called for the statements and have ensured that they did go into evidence. All that we can say, as at present advised, is that counsel at trial did not, for whatever reason, take that course.

43 To suggest that there was some unfairness or impropriety in the Crown’s calling Chan at all at the trial of the appellant, is, in our opinion, a proposition which cannot be sustained. Chan was obviously, on the given facts, a witness of the greatest potential significance to the Crown case. It cannot be correct to say, simply and peremptorily, that Chan ought not to have been called as a witness at all. No objection was made at the trial to the calling of Chan as a witness.

44 We accept, as of course, that the Crown, having decided to call Chan as a witness in its case, was thereupon obliged to disclose in accordance with proper principle and practice the entirety of any statements made by Chan to the police, the prosecuting, or any other relevant authorities. As is clear from the passages earlier quoted, it is not contended by the appellant that this was not done.

45 As to the application by the Crown to cross-examine its own witness, it cannot be correct to suppose that there was anything improper or untoward in the making by the Crown of that application. Whether the application, once made, was or was not properly to be granted, was not a question for the Crown; but was, rather, a question for the exercise of a judicial discretion on the part of the trial judge. That the trial judge decided, in the exercise of that discretion, to permit the Crown to cross-examine its witness, might be indicative of error on the part of the trial judge (though no ground of appeal was propounded or contention advanced to suggest that there was any relevant error); but it cannot possibly be indicative of anything untoward on the part of the Crown in the Crown’s having sought such a ruling from the trial judge.

46 As to the proposition that there was something untoward in the Crown’s having invited the jury, in effect, to pick and choose among the various pieces of evidence given by Chan, we do not see anything amiss in the Crown’s having taken that approach before the jury.

47 In Bunning v Cross (1978) 141 CLR 54, Stephen and Aickin JJ speak, albeit in a context different from the particular context of the present appeal, of considerations respecting the obtaining of evidence in what their Honours describe as:

“… an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods, whether of identification, by finger prints or voice prints, or of ascertainment of bodily states, as by blood alcohol tests and the like.”

48 Their Honours observe that in such a context there is:

“… no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry.”

49 Those latter observations are, in our opinion, equally applicable to the use, in the detection and in the proper prosecution of crime of the kind here in point, of such a witness as Chan. It would be, no doubt, preferable in an ideal world that recourse never be had to the evidence of so problematic a witness as the witness Chan in the present case. But it is not an ideal world. Large scale drug importation is a significant scourge in contemporary Australian society. Such illicit activities frequently involve, and plainly did involve in the present particular case, planning and execution of great sophistication. It will frequently be the case, whether palatable or not as a matter of abstract principle, that the opportunistic treachery of such a witness as the witness Chan in the present case will be a significant factor in the proper detection of, and in the proper prosecution of, serious drug-related crime. In any such particular case, it is, in our opinion, not only the entitlement, but the duty, of the prosecuting authorities to make every proper use of such evidence. The guiding principles are well established, and they are straight forward. They require of the Crown a full and a frank disclosure of the existence of the witness; and of all statements made by the witness, whether favourable or not to the case that the Crown proposes to pursue at trial; and the full and frank disclosure by the Crown of any other factor known to the Crown and capable of influencing the assessment by the jury of the credit of the particular witness, whether or not that assessment can be expected, reasonably, to favour the Crown case.

50 In our opinion, Ground 3(a) has not been made good.

As to Paragraph (b)

51 The relevant facts are as follows:

[1] When the appellant was arrested on 14 October 1998 he was found to be in possession of a Chinese passport in the name of Xu Chang Wen. The passport photograph was that of the appellant. The appellant, when asked by the arresting police to give them his name, gave them the name Chen Wei-Ming. He was subsequently charged, and later still brought to trial, under that name.

“Q. I just want to ask you about the passport in the name of Zu and other names. Do you know the one I’m referring to it is Exhibit S in this trial?

A. Zu or Xu, sir.

Q. Xu, I think it is. We have heard evidence, and it is undoubtedly the case, that that appears to be a photograph of the accused, Mr Chen on the passport, is that right?

A. That’s right.

Q. Just to go over very briefly a couple of things that were put to you by the Crown. Your document examiner is clear that that is a substituted photograph, is that right?

A. Yes, that’s right.

Q. It is not put over the top of another photograph, for instance, the original appears to be missing completely?

A. Yes.

Q. This passport having been in the possession of the investigating police for sometime led you to make some inquiries did it not, of the People’s Republic of China as to the origins of this passport?

A. That’s right.

Q. Is it your understanding that this is an authentic Chinese passport that was issued [in] this name of Xu Chang Wen?

A. Yes it is.

Q. But you can see there within the document the identity card number which appears in another panel?

A. Yes.

Q. Your inquiries in China haven’t enabled you to be able to confirm whether that identity number corresponds with the name that appears on the passport, is that right?

A. That’s right, the Chinese authorities haven’t responded to our requests.

Q. It is not a matter of your trying to trace the history of this passport, you’ve tried but you haven’t been able to be provided with any information from the officials in China, is that correct?

A. That’s correct, Sir.

Q. So far as the accused name by which he stands indicted in this trial, Mr Chen Wei Ming, that is a name that he provided to arresting police at some stage shortly after he was taken into custody on the beach, is that right?

A. That’s correct.

Q. Is it the case sir that inquiries as to that name, the origin of the person with that name identifying numbers, things of that kind, sorry things of that type, have similarly been unsuccessful so far as the police investigation was concerned?

A. That’s correct.

Q. Because of the lack of response from China, is that the situation?

A. Yes sir.”

[AB 648-649]

“Well, I’ve got instructions on what I’m entitled to raise, but I’ve always formed the view that one doesn’t do it until one gets confirmation from the Crown.”

“[COUNSEL] … I have no objection your Honour just as long as its on the understanding that in effect between us the concession has been made.

HIS HONOUR: Yes, in fact it doesn’t require, as I understand it, a concession by the Crown.

[COUNSEL]: No, it doesn’t.

[COUNSEL]: On that basis I have no objection.

[5] On 6 November the present appellant gave evidence in chief. He was asked, in the circumstances to which we have hitherto referred, no questions concerning character. The appellant was cross-examined in part on 6 November and in part on 7 November. The cross-examination, too, did not raise the question of character.

[6] On 7 November learned senior counsel for the Crown orally advised counsel then appearing for the appellant that the Crown instructions were that the holder of the identification card, the number of which had been provided to the Crown, had been identified as belonging to a named Chinese male who was not the present appellant.

“The question of whether character is going to be raised on behalf of Mr Chen hasn’t been fully ventilated yet because we were ever hopeful that the information we provided would bear fruit. If at the end of the cross-examination Agent Zuccato or someone hasn’t come through that door and confirmed in a way that I’d hope they’d confirm my instructions, I intend to seek your Honour’s leave to ask him one further evidence [sic] in chief, namely, do you have any criminal convictions and which I anticipate the answer would be in accordance with my instructions, but I have delayed doing that because we were ever hopeful the Federal Police could provide us with the material one normally seeks to protect our position.”

“[COUNSEL]: … Can I just indicate that notwithstanding having spent the whole of the lunch hour in attempt to resolve this problem that we still have so far as the identification and the consequences are with my client, it hasn’t been able to be resolved to our mutual satisfaction. I am going to ask the Crown’s further indulgence not to close the door on direction at this stage, that if this could somehow [be] done at a later stage in the trial and it anyway becomes highlighted because its done in a different fashion, so be it, but at this stage all avenues have not been exhausted, especially as I’m instructed that certain steps have been taken in relation to his fingerprints, something which one would hope would remain constant so that they may resolve the matter.

HIS HONOUR: Well I think that it can be done at any time before I charge the jury and although I am not intending to bind the Crown I am sure that they would agree that that could be done. If its available it will be done.

[COUNSEL]: I just don’t want to prejudice my friend’s position because they are in a position to avail themselves of that privilege during the course of their addresses. If I had to appear to be somewhat one out at some later stage in the trial, well that’s the price I pay for it.”

“If it were miraculously to happen in the next day or so [that] the negative information was received by the Crown, then I would most certainly include it in my charge to the jury. In the absence of that and in the absence of him clearly raising character, then I will not stop.”

His Honour asked counsel then appearing for the present appellant whether what his Honour had said was clear; and counsel responded affirmatively.

52 Against the foregoing factual background, we are of the opinion that the following simple propositions are sufficient to dispose of the ground of appeal which we are now considering:

[1] The Crown was under no obligation to concede that the appellant was a person of good character without having first satisfied itself by reasonable inquiry that such was in fact the case. In view of the doubts about the appellant’s identity, there were considerable difficulties in making inquiries.

[2] The Crown was under an obligation to make a full and frank disclosure to the then representatives of the appellant, of any material in, or coming into, the possession of the Crown and bearing, whether favourably or unfavourably to the appellant, on the question whether the appellant was entitled in fact to be dealt with upon the basis that he was, in the relevant legal sense, a person of good character. It has never been the appellant’s case, whether at trial or on appeal, that the Crown was in breach of this particular obligation of fairness.

“Do you have any criminal convictions in any country?”.

53 In our opinion, Ground 3(b) has not been established. Nor has Ground 2(d).

Ground 4

“There was a miscarriage of justice in that the Trial Judge erred in his directions to the jury as follows:-

(a) By failing to give a proper and/or adequate direction regarding how the jury should approach the evidence given by Chan Chi Keung;

(b) By failing to give a direction in respect of the good character of the Appellant.

(c) By failing to give a proper and/or adequate direction to the jury about the application of the burden and standard of proof as it applied to the case of the Appellant.

(d) By failing to give a proper and/or adequate direction to the jury regarding the use to be made of the banking evidence led by the Crown in its case against the co-accused Lau.

(e) By failing to give a direction that, even if the jury preferred the evidence of the prosecution, they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence.

(f) By directing the jury that, in so far as Chan Chi Keung was cross-examined about prior inconsistent statements, such cross-examination related only to the credit of that witness.”

At the outset it may be noted that counsel appearing for the appellant at the trial (who was not counsel appearing on the appeal) did not ask for directions correcting any of the errors which it is now said the trial judge made. Rule 4 applies.

As to Paragraph (a)

54 At a very early point in the summing-up, the learned trial judge gave the jury the following directions:

“Experience has shown that it is dangerous to convict on the evidence of an accomplice alone. Accomplices to a crime have much to gain and little to lose in giving evidence for the Crown. Fear of consequences, remorse, revenge, blame shifting and spite might provide motive enough for an accomplice to give evidence against a fellow criminal. He may have committed himself to a version of events which he cannot now change. Further encouragement might come from an offer of a shorter sentence or the ignoring of other crimes. The problem which jurors have with such evidence of people who are criminally concerned is that you never know where the true motivation might be and it may never be revealed to you. What then is a person who is criminally concerned, or an accomplice? He is in fact an accessory before the fact or a principal or an accessory after the fact. That is, he is a person who helps in the preparation of the crime or commits a crime or assists a criminal to escape liability. There seems to be absolutely no doubt that Mr Chan falls firmly into that category. It is of course a matter for you [to] determine but once you form that view, it is dangerous to convict on that evidence alone. Corroboration or evidence from outside Chan’s evidence should be considered to see if support can be obtained for the account which he has given.”

Uniana

253 His Honour expressly stated that he was persuaded beyond reasonable doubt that Lau was:

254 His Honour then turned to the Crown case against Chen on the issue of knowledge. Chen accompanied the heroin from the shore to the speedboat and on the speedboat to the Uniana. Chen unpacked the heroin from the sacks and rearranged the blocks in the sports bags; this was done at night in the hold of the vessel where the speedboat had been replaced in its cradle. He found it to be a reasonable inference that Chen secreted the bags in compartment below the deck of the hold and further, that it would have been clear from the size and the nature of the small packages that they contained heroin. Chen accompanied the heroin to Australia when it left the vessel; he was found in possession of a Glock semi-automatic pistol and false passport. His passport disclosed a number of journeys through South-East Asia and because of the clothing he was wearing in the picture displayed on that document, that document was obtained at some other time than the last journey, for that clothing was never found in his possession at Grant’s Beach.

255 His Honour referred to the evidence given by Chen as to his ignorance that the vessel was to receive the heroin and to the effect that his accompanying the drugs was a “mere coincidence”. His Honour said that inherent in Chen’s evidence was a complete denial of knowledge. His Honour came to the view that the testimony of Chen as to his journey through Vietnam and Burma was “riven by inconsistencies and relied heavily on strange coincidences”. The jury, according to his Honour, must have accepted the Crown case on knowledge and in so doing rejected the evidence given by Chen.

256 His Honour’s express finding (beyond reasonable doubt) in relation to Chen were that he was:

“…a person in this organisation in whom was reposed sufficient trust for him to have been given the responsibility of accompanying approximately 400 kilograms of heroin powder through its journey from wherever it was exported to the middle of the Andaman sea and thence to Australia, where, armed with both a gun and a false passport, the prisoner saw the heroin to the shore. As with Lau, I regard him as not merely one of the two most responsible persons amenable to the criminal law in this country but one of the principals in this enterprise”.

257 His Honour, having dealt with the other offenders (here appellants) by adopting a similar approach, said the following about the objective nature of the crime with which he was concerned:

“This represents a crime of massive proportion perpetrated by people with substantial skills and substantial means. The organisers were attentive to detail and left little to chance. Only excellent detection and the prompt seizure by Customs and the Royal Australian Navy of the Uniana when it strayed into Australian territorial waters frustrated the successful perpetration of this crime. It is an offence which carries the most serious penalties in Australian law and because of the magnitude of the enterprise it must fall within that band of the most serious cases.”

258 His Honour turned to the subjective component of the case for Lau and Chen on sentence. Lau gave no evidence during the trial or at the sentence hearing. Lau and Chen came before the Court as persons “of good character” a fact which his Honour said would be given “its appropriate weight”. In relation to Lau he noted that he was a 46-year-old married man with a child aged 4 with an elderly mother living in China; he spoke no English and came from an impoverished background. His Honour noted that he was unlikely to receive any visits whilst in custody. As to Chen, his Honour noted that nothing more was known about him other that he is a person of prior good character and married with one child; he was a process worker in the Chinese province of Hainan.

259 Having determined that prison sentences were the only appropriate punishment, his Honour said that he had given consideration to the matters required under s16A of the Crimes Act 1914 (Cth) and in particular s 16A (2)(a), (j), (k), (n), (m) and (b). He was conscious of the foreign cultural background of the offenders of the fact that their sentences would fall more heavily upon them than other prisoners and of the fact that the sentences would fall “very heavily upon their families in China and Indonesia”. General deterrence, his Honour held, must be given precedence over all other features, subjective or objective.

260 In respect of Lau and Chen his Honour again stated his satisfaction beyond reasonable doubt that “they are principals in this massive importation, that is, they are most seriously involved in the most serious of offences of this nature and I can see no reason why they should not be dealt with by imposing the maximum penalty permissible by law.” (emphasis added)

261 The sentences which are the subject of the applications for leave to appeal were then imposed. It is to be noted that the offender Siregar was sentenced to life imprisonment with a non-parole period of 20 years as was the offender Ismunandar.

262 It is further to be noted that his Honour later sentenced the offender Mandagi (the Master of the vessel) to life imprisonment with a non-parole period of 25 years. This sentence was the subject of a successful appeal to the Court of Criminal Appeal (Dowd and Greg James JJ, Smart AJ) [2002] New South Wales CCA 57, 11 March 2002. The judgment in that appeal (which had been heard on 28 May 2001) was handed down after the conclusion of submissions in the current appeal.

263 The applicant Lau submitted that the learned sentencing Judge fell into error on two discrete bases; first, by failing to take into account comparative sentences for like offences in determining the appropriate sentence to be imposed; and, secondly by failing to take into account and/or give any consideration, when imposing the maximum sentence permissible under the law, to relevant and applicable human rights instruments and precepts relating to the detention and imprisonment of detainees.

264 The written submissions (there were no oral submissions) acknowledge that the applicant was sentenced on a basis consistent with the finding of the jury that he had knowledge of the presence of heroin and reference was made to his Honour’s remarks above as to the “massive proportion” of the offence and the “magnitude of the enterprise” and his Honour’s view that the crime fell within the band of the most serious of cases. The submissions refer to his Honour proceeding to sentence the applicant Lau because he was satisfied beyond reasonable doubt that he was a principal and because in the circumstances he saw no reason why he should not impose the maximum penalty under the law.

265 The applicant then makes the bald submission that his Honour fell into error. This, as we understand it, is amplified by the contention that there was insufficient evidence to warrant such a finding beyond reasonable doubt. The applicant acknowledges that it was not appropriate for his Honour to have found Lau to have been a mere courier but goes on to assert that his role was somewhere in-between and more akin to a “lieutenant or a mid-level executive”.

266 It is argued that the task of his Honour was rendered difficult given the jury’s verdict rejecting (in the absence of any evidence from Lau) the asserted lack of knowledge. It is contended that this gave rise to a situation to which recourse is had to certain statements made by the High Court in Cheung v The Queen (2001) 185 ALR 111; [2001] HCA 67 (22 November 2001). The applicant seeks comfort from certain observations made by Gleeson CJ, Gummow and Hayne JJ in paragraphs [7] and [8] where reference is made to the traditional or familiar aspects of the inscrutability of a jury’s verdict. Their Honours referred to the proposition that in order to convict a jury must find beyond reasonable doubt the constituent elements of the offence charged and that provided they reason to such a conclusion in a manner consistent with properly framed judicial directions their process of reasoning does not necessarily have to be unanimous. Their Honours went on to say:

“ On occasion, this may mean that a jury’s verdict on the black and white issues of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender’s capability, and the proper measure of punishment. There are many cases involving either a plea of guilty or a conviction following a plea of not guilty, where the task of assessing an offender’s culpability is more difficult than that of determining his or her guilt”.[8]

267 With this component of the submissions in support of the application we simply cannot agree. It must be borne in mind, as stated above, that the only issue of substance in the trial generally in relation to Lau especially (and he gave no evidence) was knowledge; the circumstances of the importation otherwise were not in dispute. The jury’s verdict, as the applicant acknowledges, amounted to a rejection of the applicant’s asserted position in relation to knowledge and acceptance beyond reasonable doubt of all the constituent elements of the offence. The factual issues with which his Honour was confronted upon the jury’s verdict were equally as “black and white” as those which the jury had to decide. The mere assertion that there was no evidence upon which his Honour could be “satisfied beyond reasonable doubt” is simply not available. In our view there was an abundance of evidence upon which his Honour, upon reviewing it as he did, independently could come to the view to that level of satisfaction for the purposes of the sentencing exercise, with the same confidence as that which was apparently experienced by the jury in the performance of its task.

268 The next component of the first basis for attacking the sentence falls under the heading “Failure to take into account comparative sentences”. As the applicant rightly says, his Honour refers to no comparative cases in his remarks. As the applicant rightly states, the Crown in its written submissions to the learned sentencing Judge refers to no other cases. It is not clear whether his Honour was assisted by Counsel appearing for the applicant in the sentencing process by references to other cases. In any event, a submission under this heading contends that there are “two recent cases which provided” comparative support to what is asserted to be the appropriate sentence to be imposed. Regrettably, the first of the two “recent” cases, Regina v Gonzales-Betts [2001] NSW CCA 226 was a decision of this Court (Dowd, Barr and Greg James JJ) on 8 June 2001, well after the date of his Honour sentencing the applicant. That case involved an appeal against conviction and sentence in elation to an importation of a commercial quantity of cocaine (224.8 kilograms bulk, 172.2 kilograms pure). The applicant had appealed against the severity of sentence that had been imposed upon her - life with a non-parole period of 22 years. In that case the importation involved the use of a mother ship to bring the cocaine to Australia from which could be launched a smaller vessel to enable the transfer of the drugs to the mainland. In the 6 short paragraphs of the principal judgment (Greg James J) dealing with sentence the real issue in that appeal was whether the learned sentencing Judge in that case had been in error in treating the applicant as a “mid-level executive” and thus exaggerated her role. It was found that the judge was not in error in so characterising that offender and the appeal against sentence was dismissed. No assistance is gained from that case at all. In our view, here, his Honour found Lau to be the “paymaster if not financier” and regarded him as a “principal” in the enterprise and not merely one of the most important persons in it. We add that in the written submissions there is a passing reference to the sentence imposed upon Ms Gonzales-Betts’ co-accused Megitt [1999] NSW SC 606, to what end is unclear as Megitt pleaded guilty.

269 The identity of the second of the “two recent cases” is unclear. In submissions references were made to the decision of the Court of Criminal Appeal in Cheung (1999) 154 FLR 259 which was the subject of the unsuccessful appeal to the High Court referred to above. The appellant in that matter had been sentenced to imprisonment for life with a non-parole period of 21 years and 11 months having been instrumental in arranging for the shipment of 50 kilograms (38 kilograms pure) of heroin to Australia. All that the applicant here does is draw our attention to the Court having found that the sentence was implicitly within the available range given the seriousness of the matter.

270 Contrary to the expectation of the applicant, the Crown did not rely or indeed refer us to the sentence imposed by Ireland J in Regina v Law Kuan (SC NSW, unreported, 31 March 1999). No doubt the reason for that was that the Court of Criminal Appeal quashed the conviction and the sentencing did not receive consideration [2001] NSW CCA 291. In any event in relation to the submission with respect to comparative sentences, the applicant fails to identify “relevantly identical” features in cases to which reference is made. Nor does the applicant provide any authority for the proposition that the mere failure to refer to “comparative sentences” of itself constitutes an error. In this context, as the Crown submits, it is desirable to bear in mind what the High Court said in Wong and Leung (2001) 185 ALR 233; [2001] HCA 64 at [65]:

result

relevantly

different

271 The submissions for the applicant then proceed to what really is the nub of what was being put on his behalf. The contention is that his Honour was in error in not setting a non-parole period. The applicant acknowledges that in making that submission it is not contended that it was not open for his Honour to impose the maximum penalty (namely a life sentence) but that his Honour fell into error by failing to fix a non-parole period. First, the applicant relies upon the comparative sentences: they offer no support in our view.

272 The applicant goes on to argue that his Honour’s reasoning process points to a view he held that the size of the importation was determinative of the sentence that should ultimately be imposed. This submission is founded in the decision of the High Court in Wong v The Queen; Leung v The Queen (2001) 185 ALR 233; [2001] HCA 64 (15 November 2001) per Gaudron, Gummow and Hayne JJ (at [64]):

“In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles”.

273 No fair reading of his Honour’s remarks on sentence can lead to the conclusion that his Honour gave improper, undue or disproportionate weight to the quantum of drugs involved in the offence. The quantum of drugs was merely one factor which led to the result now sought to be impugned, as we understand his Honour’s reasoning. Another was the sophistication of the enterprise in terms of its planning and logistics. There is even greater difficulty in impugning the result on the basis advanced for the applicant when it is clear that the circumstances of the importation were not in dispute and the findings of knowledge in relation to Lau were adverse. His Honour was confronted with virtually a non-contentious factual component involving a massive quantity of drugs and the jury’s verdict rejecting the applicant’s position as to knowledge. On no fair or rational basis can anything which his Honour said be isolated to the point where it can be concluded that contrary to what was said in the High Court (in the passage extracted above) improper or undue weight was given to the quantity of drugs. In our view his Honour’s approach to the several components, both objective and indeed subjective, to the extent that the latter were available to him, was balanced. We find there to have been no error on the part of the learned sentencing Judge on the discrete basis advanced that undue weight was given to the quantity of drugs.

274 Next it is contended that his Honour failed to provide proper and/or adequate reasons as to why he was of the view that a non-parole period should not be fixed in circumstances where the head sentence of life imprisonment was to be imposed. In this regard s19AB (4)(a) of the Crimes Act (Cth) states that where the Court decides that a non-parole period is not appropriate it must state its reasons.

275 As referred to above, in his remarks on sentence his Honour said: “I can see no reason why they should not be dealt with by imposing the maximum penalty permissible by law”. Clearly his Honour did not embark upon any separate statement of reasons as to why a non-parole period should not be fixed. What is quite evident from the statement cited above is that the reason for the non-fixing of a non-parole period was the view formed by his Honour that the gravity of the offence was so great that the maximum sentence should be imposed. In those circumstances we do not consider any error arising from his Honour not cataloguing separate reasons for not fixing a non-parole period in the context where his Honour has catalogued reasons for fixing the maximum which of their very nature exclude a non-parole period.

276 It is next argued that his Honour was in some way in error by failing to take into account “the principle of proportionality”. This is not amplified in the submissions. It is merely stated for the applicant that the length of the sentence imposed is “grossly disproportionate” to the offence that was committed. It is submitted that the test of proportionality must be applied “generally” and not on an individual basis and that such a test requires a sentencing judge to make a comparison with punishments imposed for like crimes committed within the same jurisdiction.

277 Insofar as this proposition is repeating the submission as to an asserted error by failing to have regard to comparative sentences, it is unacceptable. We assume that the submission is directed to the fundamental proposition that there should be proportionality between a sentence and the facts of the crime itself or “that punishment be proportional to the crime” (Veen v The Queen [No 2] (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson, Toohey JJ). We are of the opinion that his Honour in no way offended this principle. His Honour makes perfectly clear in his sentencing remarks his findings as to the objective facts, the way he took into account such subjective material as was available and, most importantly, his characterisation of the offence in the highest band of seriousness. Having followed that path and otherwise, in our respectful view, complied with the requirements of Part 1B of the Crimes Act 1914 (Cth) his Honour imposed a sentence within his discretion as conceded by the applicant. We are not persuaded that there was a want of proportionality between the facts and the offender, between the crime and the punishment, merely by reason that his Honour otherwise in the proper exercise of his discretion and with sufficient explanation did not set a non-parole period.

278 We are satisfied that the applicant has failed to make good any of the components of the first basis of his application.

279 As to the second basis (the human rights precepts basis) in the written submissions reference is made to s10 of the Bill of Rights 1688 (UK) c2 as applying to this appeal and forming part of the common law of the Commonwealth. We are informed in the written submissions that s10 of the Bill of Rights and the principle embodied in it have found expression in what are described as a number of human rights instruments to which Australia is a signatory/party, for example article 7 of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Reference is also made to article 5 of the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment to which it is said that Australia became a party on 8 August 1989. It is also submitted that article 10.3 of the International Covenant on Civil and Political Rights is significant.

280 Briefly stated, it is the contention of the applicant that the common law and such human rights instruments and/or precepts “must be taken into account in determining the appropriate sentence to be passed”, this relating both to the imposition of an appropriate head sentence and the determination of whether or not a non-parole period should be fixed in accordance with s 19AB of the Crimes Act.

281 The end to which these submissions in writing were advanced is uncertain; it may be in effect to assert that the proper application of these instruments to the law of the Commonwealth as embodied in Pt 1B of the Crimes Act should bring it about that a sentence for the term of the offender’s natural life would never be imposed. It is otherwise difficult to understand these submissions as affecting the question of proportionality, comparative sentences and the failure to fix a non-parole period additionally to what hitherto has been put and put unsuccessfully. No submission has been made that the power to impose a life sentence without parole was outside the Constitutional reach of the Parliament or the exercise of the power by the trial judge being otherwise contrary to law. His Honour had formed, as we have said, a view as to the gravity of the objective circumstances of the crime and otherwise took into account, as there was available to him, factors subjective to this applicant in the context where deterrence was of critical importance. There is nothing, as the Crown submits, in his Honour’s reasons for sentence to suggest that he was not acutely aware that the sentence he was to impose would maintain the applicant in custody for the term of his life and thus be separated from civil society and the amenities of such family life as he had thitherto enjoyed. Parliament regarded a life sentence without parole as a sentence which ought to be imposed for crimes of the type under consideration in appropriate cases. Parliament did not regard a life sentence without parole in an appropriate case as cruel, unusual, inhuman or degrading. If ever there was an appropriate case to impose a life sentence without parole it was each of these two cases.

Chen

282 With respect to the applicant Chen the identical submissions are made. The only additional matter raised with respect to Chen was a complaint that his Honour accepted that the applicant was of good character, something that he had not been prepared to direct the jury on during the trial itself. That aspect has been dealt with in relation to the conviction appeal. His Honour did take into account in the discrete exercise of sentencing Mr Chen the matter of his good character.

283 In all other respects the observations made above in relation to the application of Lau apply equally to Chen.

Conclusion

284 We are not persuaded that any error has been shown to have been made by the learned sentencing Judge in relation to any of the discrete matters raised by each of the applicants, that is, with respect to his Honour’s finding beyond reasonable doubt the role in each case, his Honour’s characterisation of the objective circumstances of the crime, his Honour’s conclusion that the crime fell within the band of the most serious of cases, the issue of proportionality, the matter raised in relation to comparative sentences, his Honour’s approach to all the factors including the propriety of the weight he attached to the quantum of drugs, the question of deterrence and the ultimate penalty imposed.

285 We are of the view that the crime so offended the public interest that the maximum sentence was appropriate. His Honour the learned sentencing Judge in his overall approach did not offend anything the High Court said in Wong and Leung with respect to sentencing for offences of this kind. The ultimate result correctly reached by his Honour consequent upon his proper characterisation of the crime as in the band of the most serious of cases conforms with what we consider still to be available as a statement of general principle as enunciated in this Court (Carruthers, Finlay and Badgery-Parker JJ) in Twala (unreported, 4 November 1994) where Badgery-Parker J said at 7:

“However, in order to characterise any case as being in the worse case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed”.

Regina v Kalache

Regina v Thomson and Houlton

286 Certain observations made by Sully J in 1991 are still relevant and bear repetition: what his Honour said in Regina v Cheung Wai Man and Ors, on sentence, 22 March 1991, was:

“The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the wellbeing of the Australian community. The same is to be said of any form of trafficking in heroin within this country.

The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.

In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who…engage in drug related crime…”.

287 Reference has been made above to the decision of this Court (Dowd, Greg James JJ and Smart AJ) in the appeal of Mandagi [2002] NSW CCA 57 on 11 March 2002. Mandagi was the master of the Uniana and had been sentenced by his Honour Judge Shadbolt after conviction on 8 March 2000 (that is, after his Honour had sentenced the present appellants) to life imprisonment with a non-parole period of 25 years. Mandagi’s appeal against conviction was dismissed. His sentence appeal however was allowed and his sentence was varied to one of imprisonment for 27 years with a non-parole period of 19 years. The sentence appeal in Mandagi was allowed on the issue of parity with the sentence imposed upon the controversial witness Chan. Chan had been sentenced, consequent upon a plea of guilty, to 13 years imprisonment with a non-parole period of 10 years. The parity issue is discussed at paragraphs 89 and following of the judgment of the Court in Mandagi. The conclusion reached by Smart AJ on the discrete issue of parity with which his Honour was concerned is as follows [111]:

“The crime committed by the appellant was a very grave one as was that committed by Chan. Both were involved over a lengthy period in the intended importation. Both the appellant and Chan had a propensity to lie and this makes sentencing more difficult. Both tried to play down their roles. Their roles were different but Chan’s criminality and the appellant’s criminality were about equal. Both were in difficult financial circumstances and both needed work. The financial rewards for Chan were to be much greater than those of the appellant. Even allowing for Chan’s plea of guilty and his assistance to the authorities the disparity between the sentences imposed upon Chan and the appellant is marked and gives rise to a justifiable sense of grievance on the appellant’s part”.

288 We do not consider either the outcome or reasons therefor as enunciated by Smart AJ in Mandagi have any relevance to or effect upon our approach to our determination of the present applications for leave. Nor do we consider it either necessary or appropriate to remark upon the correctness or otherwise of the decision of the Court in Mandagi. This Court is concerned with applications for leave to appeal circumscribed by the ambit of the grounds thereof and submissions made in support as referred to above. None of these included any question of parity. That is not surprising in view of the fact that whatever significance the respective roles and relationships of crew members such as Mandagi, Siregar and Ismunandar might have from the sentencing point of view, Lau and Chen are in a wholly different category.

289 The principles in relation to parity are well known: Lowe v The Queen (1984) 154 CLR 606: Postiglione v The Queen (1977) 189 CLR 295, subsequent Court of Criminal Appeal (1997) 98 A Crim R 134. A further principle in this context of course is the entitlement in the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance, that entitlement being a discretionary one. The exercise of that discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Regina v Diamond (NSW CCA, unreported, 18 February 1993 per Hunt CJ at CL at 5-6, with whom James J agreed, Smart J – as he then was- dissenting). The application, if any, of such principles in the light of what the Court chose to decide in Mandagi is, in our view, academic.

Siregar and Ismunandar

290 Counsel for Siregar submitted that if Mandagi’s sentence were interfered with, there would “seem to be a basis for an application” that Siregar’s sentence should be reduced. Counsel for Ismunandar appeared to want his application for leave to appeal against sentence not to be dealt with until after the conviction appeals had been decided. No further submissions have been received. We think that the best course is to stand the applications of Siregar and Ismunandar for leave to appeal against sentence into the next Registrar’s callover with a view to the Registrar ascertaining from those applicants whether it is desired by them that their applications should be prosecuted and, if so, for the Registrar to make the directions for the filing of written submissions and for the conduct, if the applicants so desire, of an oral hearing.

291 Orders

1. The appeals against conviction by Chen, Siregar, Ismunandar and Lau are dismissed.

2. The applications by Chen and Lau for leave to appeal against sentence are allowed; the appeals against sentence are dismissed.

3. The applications by Siregar and Ismunandar for leave to appeal against sentence are stood over to the next Registrar’s callover.

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Citations

R v Chen [2002] NSWCCA 174

Most Recent Citation

The Queen v Tian Chew Quah [2016] VCC 1753

Cases Citing This Decision

75

Williams v The Queen [2016] ACTCA 15

R v Scott [2017] SASCFC 96

R v Constant [2016] SASCFC 87

Cases Cited

18

Statutory Material Cited

4

R v Gonzalez-Betes [2001] NSWCCA 226

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64

Bunning v Cross [1978] HCA 22

CITATION:	R v Chen & Others [2002] NSWCCA 174
FILE NUMBER(S):	CCA 60079/01; 60082/01; 601220/01; 60099/01
HEARING DATE(S):	10, 11 December 2001
JUDGMENT DATE:	11 June 2002
PARTIES :	Regina v Wei Ming Chen Regina v Saud Siregar Regina v Sidiki Ismunandar Regina v Khong Hoi Lau
JUDGMENT OF:	Heydon JA; Sully J; Levine J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0061 00/11/0371 99/11/0730 99/11/0375
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	E L Fullerton SC (Crown A J Bellanto QC/P Lowe (Chen) A M Barrie (Siregar) D G Dalton (Ismunandar) A J Bellanto QC/P Lowe (Lau)
SOLICITORS:	Commonwealth DPP (Crown) Raymond Lee & Co (Chen) George Sten & Co (Siregar) Freemans (Ismunandar) Borak & Co (Lau)
CATCHWORDS:	Criminal law - Customs Act 1901 (Cth) s 233B - importation of prohibited goods -narcotics - heroin - appellants convicted at trial - appeal against conviction and sentence - Courts - jurisdiction - inherent powers - acts of Commonwealth marine vessel in pursuit of appellants' vessel - pursuit of compulsive nature - whether nature of pursuit deprived court of jurisdiction - whether proceedings an abuse of process - Evidence - admissibility - Evidence Act 1995 (NSW) s 138 - discretion to exclude illegally or improperly obtained evidence - whether seizure and search of marine vessel within Australian waters unlawful or irregular - whether evidence so obtained colourable by any such unlawful or irregular conduct - whether admission of evidence a miscarriage of discretion - Constitutional law - judicial powers - Constitution Act 1901 (Imp) s 71 - whether power of Director of Public Prosecutions under Crimes Act 1914 (Cth) s 21E to apply to Court for increase of sentence an exercise of Commonwealth judicial power - Evidence - admissibility - Evidence Act 1995 (NSW) s 102 - whether evidence of undertaking relevant only to a witness' credibility - evidence of witness' status - Criminal law - sentence - serious drug offences - life term without parole - principles relating to orders for
LEGISLATION CITED:	Crimes Act 1914 (Cth) Customs Act 1901 (Cth) Evidence Act 1995 (NSW) Judiciary Act 1903 (Cth)
CASES CITED:	Adam v The Queen (2001) 183 ALR 625 R v Booth (1982) 8 A Crim R 81 Bunning v Cross (1978) 141 CLR 54 Cheung v The Queen (2001) 185 ALR 111; [2001] HCA 67 R v Checconi (1988) 34 A Crim R 160 R v Diamond (NSWCCA, unreported, 18 February 1993) R v Gonzales-Betes [2001] NSWCCA 226 R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42 R v Kalache (2000) 111 A Crim R 152 R v Law Kuan (NSWSC, unreported, 31 March 1999) Liberato v The Queen (1985) 159 CLR 507 Chu Kheng Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1 Lowe v The Queen (1984) 154 CLR 606 R v Mandagi [2002] NSWCCA 57 R v Megitt [1999] NSWSC 606 Postiglione v The Queen (1977) 189 CLR 295 Salmon v The Queen [2001] WASCA 270 R v Schmahl [1965] VR 745 R v Thomson and Houlton (2000) 115 A Crim R 104 R v Twala (unreproted, 4 November 1994, Badgery-Parker J) R v Wong and Leung; (2001) 185 ALR 233; [2001] HCA 64 R v 'YZ' [1999] NSWCCA 48 Veen v The Queen [No 2] (1988) 164 CLR 465
DECISION:	See paragraph 291