R v Fung - [2002] NSWCCA 479

No judgment structure available for this case.

Reported Decision:
(2002) 136 A Crim R 95

New South Wales

Court of Criminal Appeal

CITATION: Regina v Vincent Yiu Chen Fung [2002] NSWCCA 479

FILE NUMBER(S): CCA 60107/02; 60041/02

HEARING DATE(S): 6 September 2002

JUDGMENT DATE:
5 December 2002

PARTIES :

Regina
Vincent Yiu Chen Fung

JUDGMENT OF: Beazley JA at 1; Sully J at 2; Hulme J at 76

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0178

LOWER COURT JUDICIAL
OFFICER : Dodd DCJ

COUNSEL : D. Woodburne - Crown
G. Bashir - Fung

SOLICITORS: S. E. O'Connor - Crown
Murphys Lawyers Inc - Fung

LEGISLATION CITED: Drug Misuse & Trafficking Act 1985 (NSW)
Criminal Appeal Act 1912 (NSW)
Customs Act 1901 (Cth)
Evidence Act 1995

CASES CITED:
Bahri Kural v The Queen [1987] 162 CLR 502
Pereira v Director of Public Prosecutions [1988] 35 A Crim R 382
Festa v The Queen [2001] HCA 72 (13 December 2001)
M v The Queen (1994) 181 CLR 487
KRM v R (2001) 206 CLR 221
Lau (1998) 102 A Crim R 167

DECISION: Appeal against conviction allowed; conviction and sentence quashed; new trial ordered

- 53 -IN THE COURT OF

60107/02
60041/02

BEAZLEY JA
SULLY J
HULME J
Thursday 5 December 2002

REGINA v vincent yiu chen FUNG

Judgment

1 BEAZLEY JA: I agree with Sully J.

2 SULLY J: In October 2001 the appellant, Mr. Fung, stood trial in the District Court at Sydney. He was charged with having supplied not less than the large commercial quantity, as prescribed by statute, of a prohibited drug, namely heroin. Such an offence contravenes section 25(2) of the Drug Misuse & Trafficking Act 1985 (NSW) and attracts upon conviction, relevantly, a statutory maximum penalty of imprisonment for life. On 11 October 2001 the jury found the appellant guilty as charged. On 2 November 2001 the appellant was convicted and sentenced to imprisonment for 5 years with a non-prole period of 3 years and 9 months. The appellant appeals against his conviction and applies for leave to appeal against his sentence. The Crown appeals, pursuant to section 5D of the Criminal Appeal Act 1912 (NSW), against the asserted inadequacy of the sentence passed in the District Court.

The Crown Case at Trial

3 The appellant did not come under police surveillance until the afternoon of 24 June 2000. Observations were then made of the appellant and of two men named Tony Micalizzi and Gary Lammas.

4 On 26 May 2000 police officers who were conducting surveillance operations at the Qantas Sydney International Departure Terminal observed Micalizzi in the course of leaving Australia. On 22 June 2000 Lammas was observed near a baggage collection carousel in the Qantas Sydney Domestic Terminal. He met Micalizzi outside that terminal, and they drove together to Warwick Farm in a Holden motor vehicle with the registration number MYV-263. On 10 June 2000 Micalizzi had received at his place of employment, namely Wallace Laboratories, where he was employed as a driver, a fax. Evidence was led at the trial that Micalizzi had told another employee that he was expecting a fax from Hong Kong about what he described as “raw material”.

5 Police surveillance of Micalizzi and Lammas had entailed, among other things, the obtaining of authority to intercept telephone calls on a mobile telephone used by Micalizzi. At 12.15 p.m on 24 June 2000 the police intercepted a telephone call made to Micalizzi’s mobile phone from a public telephone booth in the Telstra Plaza Building in Pitt Street, Sydney. Evidence was led that the caller was the appellant, and that Micalizzi himself took the call. The intercepted conversation proceeded as follows:

“Appellant: Tony?

Micalizzi: Yeah.

Appellant Yeah. Ah, ah, where can I see you?

Micalizzi: Well, where? Parramatta, the City? Where? You tell me and I’ll be there.

Appellant: Okay. In the city?

Micalizzi: Yeah. That’ll be alright. That’ll be fine.

Appellant: Um. Do you know where um Pitt Street is?

Micalizzi: Yeah.

Appellant: At the corner of Pitt and um Liverpool.

Micalizzi: Okay

Appellant: There’s a convenience store there.

Micalizzi: Yeah. No worries. I know where it is.

Appellant: And so are ----

Micalizzi: What time but? See, because I’m out west. You got to give me time to get there.

Appellant: Yeah. Okay. So, what time can you make it here?

Micalizzi: Say, three o’clock?

Appellant: Three o’clock is it?

Micalizzi: Yeah.

Appellant: Okay. And what colour are you wearing?

Micalizzi: Eh?

Appellant: What kind of dress are you wearing?

Micalizzi: I dunno yet (Laughing) I dunno yet.

Appellant: So, I – I know who you are.

Micalizzi: Yeah. Well, when I – when I get there just ring me. At three o’clock ring me.

Appellant: Okay. Alright

……………………………………………………………………

6 At 2.50 pm police officers observed Lammas and Micalizzi together in a Holden motor vehicle, MYV-263, at the corner of Pitt Street and Liverpool Street. At 2.53 pm Lammas parked the vehicle outside a hotel on Liverpool Street. At 2.54 pm the two men walked together into a book and CD shop near the corner of Liverpool and Pitt Streets. At 2.55 pm Micalizzi came out of the shop apparently talking on a mobile phone. At 2.56 pm. Micalizzi stopped talking on the mobile phone; and he and Lammas together began to walk back and forth on the corner outside a convenience store .

7 The police surveillance of Micalizzi’s mobile phone intercepted the telephone call. The relevant interception record shows the call as having been timed at 2.55 pm, and as having occupied some 44 seconds. The transcript of the intercepted call reads, relevantly, as follows:

“Micalizzi: Hello?

Appellant: Hello?

Micalizzi: Yeah.

Appellant: Tony?

Micalizzi: Yeah.

Appellant: Tony you here yet?

Micalizzi: Yeah. I’m at uh the corner of Pitt and Liverpool.

Appellant: Yeah. Pitt and Liverpool, convenience store.

Micalizzi: Eh?

Appellant: Convenience store.

Micalizzi: Yeah. There is a store here, yes.

Appellant: Yeah. Are you there yet?

Micalizzi: Yes, I’m here.

Appellant: What colour – what what top are you wearing?

Micalizzi: I got a jacket on with a light shirt and dark black pants.

Appellant: Okay. What colour is the jacket?

Micalizzi: It’s blue.

Appellant: Okay. I come see you.”

8 Thereafter, and at 2.57 pm the appellant was seen to walk across Pitt Street from the direction of Castlereagh Street. By this time Micalizzi had separated from Lammas and was standing outside a convenience store located at 379 Pitt Street. The appellant and Micalizzi met and shook hands. Lammas, who was standing separately on the corner of Liverpool and Pitt Streets, was observed to be looking around the general vicinity of where he was standing. The appellant and Micalizzi were seen to walk together along Pitt Street, and then across Pitt Street, where they stood together for a time. They appeared to be having a conversation. They then recommenced walking along Pitt Street, in the direction of Liverpool Street, and at 2.59 pm the appellant was seen by the police observers to be using a mobile phone.

9 At 3.02 pm the appellant and Micalizzi walked together to a motor vehicle parked in Castlereagh Street outside the Commonwealth Bank building at the corner of Castlereagh and Liverpool Streets. This vehicle was a red Nissan Pulsar sedan, with a NSW registration number: WHT-607. The appellant got into the driver’s seat of that vehicle, and Micalizzi got into the front passenger seat. The appellant drove the vehicle from Castlereagh Street to Pitt Street in the Haymarket. At 3.04 pm he stopped the vehicle at the intersection of Pitt Street and Cunningham Street, in the Haymarket, and Micalizzi got out of the front passenger seat, carrying a small, soft-sided black and brown back-pack. The appellant drove away and was lost to the sight of the police observers.

10 Surveillance of Micalizzi continued. He was seen to put the back-pack over his right shoulder and to walk back to the Holden MYV-263. Micalizzi was seen to put the back-pack into the back of the Holden; to get into the front passenger seat of the vehicle; and to drive away with Lammas in the direction of the Haymarket.

11 At 3.20 pm the police stopped the Holden in the Haymarket and arrested Micalizzi and Lammas. The back-pack was found on the floor of the vehicle behind the front passenger seat. A quick inspection of the back-pack and its contents revealed that the back-pack contained a green garbage bag within which was a number of smaller packages. These packages were wrapped in multi-coloured paper. Each measured about 15 cm x 10 cm x 5 cm. The police opened one of the packages and found that it contained four blocks of compressed powder. The back-pack and the whole of its contents were thereupon seized for further analysis. The clip on the outside of the back-pack was broken; and the cover of the back-pack had to be moved to one side to obtain access to its contents.

12 At about 9 pm, the police saw the red Nissan Pulsar parked and unattended on Pitt Street in the Haymarket, at the intersection of Pitt and Barlow Streets. The police kept the vehicle under observation, and at about 10.50 pm they saw the appellant walk across Pitt Street to the vehicle. He got into the driver’s seat. Police approached, identified themselves, and thereupon arrested the appellant. He was searched, and was found to be carrying among other things: a business card for discount car rentals; a Panasonic mobile phone charger; and a driver’s licence.

13 In due course the contents of the back-pack were further analysed. Inside the green garbage bag were four smaller packages, each of which was wrapped and sealed with adhesive tape. One had a pink floral pattern on it; the second and third had a multi-colour wrapping with little pictures of mobile phones; and the fourth had a multi-colour wrapping with the symbol of a computer. Inside each of the four wrapped packages was a “Glad” clip seal plastic bag containing a freezer bag, yellow wrapping and a thin layer of white wax. Inside all of that wrapping was compressed powder of an off-white colour. There was as well, a fifth package which had been opened at the time of the arrest of Micalizzi and Lammas. The fifth package contained four smaller packages with yellow wrapping.

14 Detailed examination and analysis of the contents of the packaging revealed a quantity of heroin having a gross weight of 3.519 kilograms and an average purity of about 60%. The estimated street value of the total quantity of heroin ranged from about $1 million to about $8 million, the marked variation being explained as depending upon: first, how the heroin was cut in preparation for its distribution; and secondly, whether its ultimate distribution was in ounce lots or in other particular weights.

15 Extensive fingerprint testing was conducted on the various materials previously described; but the only fingerprints identified as being those of the appellant were two prints on a paper bag found in the red Nissan Pulsar.

16 There is evidence that the appellant had hired the red Nissan Pulsar on 20 June at about 3.15 pm. He had dealt on several previous occasions with the particular company, Discount Car & Truck Rental. On 20 June, the appellant had used a legitimate driver’s licence and credit card in connection with his hiring of the red Nissan Pulsar.

17 At about 5.30 pm on 24 June the appellant was telephoned on his mobile phone by a representative of Discount Car & Truck Rental, with an inquiry about the return of the vehicle. The appellant told the representative that he had meant to call earlier and to extend the period of the hiring, but that he had been too busy to do so. The appellant and the representative agreed that the appellant would return the vehicle on the afternoon of the following Monday, that is, 26 June.

18 The Crown led evidence of the separate supply and possession of heroin by persons named Michael Lam, his father Lam Sik, and Chi Luong. It is contended by the appellant that this evidence was wrongly admitted against him at his trial. It will be convenient to deal with the detail of this particular evidence, and with all questions relating to its admissibility at trial, when discussing, later herein, the first ground of appeal.

The Defence Case at Trial

19 The appellant gave evidence at his trial. He explained as follows the circumstances which led to his taking the back-pack and its contents to Micalizzi:

“It actually a request by a very good friend of mine and do him a favour and to drop off this bag. And I was given the telephone number of the person called Tony at that time to me and as well as one pay phone card and which I did ring Tony and I went to drop off the bag and what you heard on the tape.”

20 The appellant went on to explain that the “very good friend” was none other than Michael Lam. The appellant explained that Michael Lam was “a very good friend of mine and we went to the same high school”. The appellant explained, further, that his younger sister had married Michael Lam’s older brother at Christmas 1999.

21 The appellant said that Michael Lam had given him a phone card, which he had used in order to make calls from a public telephone. The appellant said that he supposed that Michael Lam had given him the phone card in order to “…………….. reduce my telephone costs” …………….. because …..“I doing a favour to him … ..”.

22 The appellant said that he had met Michael Lam in the city when “…….. I just happened to go out to the city to have lunch with friends”. It was then that Michael Lam had given him the bag and asked him to deliver it to Micalizzi. The appellant admitted that he had telephoned Michael Lam a couple of hours after he had handed over the bag to Micalizzi; but the appellant maintained that the sole purpose of that call had been to arrange to have dinner with Michael Lam. In fact, the appellant said, the two men had not met for dinner as arranged.

23 The appellant was at pains in his evidence-in-chief to emphasise to the jury that he had no knowledge whatsoever that the back-pack contained heroin; and that the entire sequence of his handling of the back-pack was inconsistent with his having known that it contained something as commercially valuable as 3.5 kilograms odd of bulk heroin.

24 The appellant was extensively cross-examined; and his cross-examination amplified somewhat particular features of his evidence-in-chief.

25 It appeared, thus, that the appellant’s version was that his lunch-time meeting with Michael Lam had been a chance one. They had happened to meet, and had decided on the spur of the moment to have lunch together, which they did for about half-an-hour. It was during that meeting that Michael Lam first asked the appellant to deliver a bag to a man called “Tony”. When the appellant made the first of the two telephone calls to Micalizzi, Michael Lam was actually standing nearby while the call was placed. He had told the appellant that he did not wish to speak himself to “Tony” because the appellant would be the person doing the delivery, and so it was better that he do the necessary talking.

26 The appellant denied that he had deliberately left the back-pack in his car before going to meet Micalizzi. The appellant’s explanation for this was that “…………..I can’t give to anyone. I’m meant to give to Tony”; but the appellant was unable to explain what difference it would have made had he taken the back-pack with him when he first went to meet “Tony” at a location which he, the appellant, had himself set..

27 Part of the appellant’s cross-examination dealt with his telephone contacts, between 1 April 2000 and 24 June 2000, with either Michael Lam or Lam Sik. The appellant and the two Lams had mobile telephones; and the relevant telephone records showed a pattern of intense contact between the appellant and one or other of the Lams within the stated period. There was, in particular, evidence that the appellant’s mobile telephone number had been called from Michael Lam’s mobile telephone at 11.06 pm on 19 June 2000, that is to say, the day before the day on which the red Nissan Pulsar had been hired by the appellant. Thereafter, those records showed a call placed on the appellant’s mobile telephone at 12.46 am on 20 June to the mobile phone connection of Lam Sik, that call being followed by another such outward call at 11.44 am on 20 June; incoming calls from Lam Sik’s mobile phone connection at 2.02 pm, 2.05 pm, 4.53 pm and 10.45 pm on 20 June; an outgoing call at 11.09 pm on that day; and an incoming call at 11.45 pm on that day. No calls, either inward or outward, were recorded thereafter and until 24 June, when there was a record of an outgoing call to Michael Lam’s mobile telephone service at 4.56 pm, followed by a brief incoming call at 6.16 pm, and a further outgoing call at 6.47 pm.

28 The appellant was adamant that he had not mentioned during any of the calls of 20 June anything about the hiring of the red Nissan Pulsar. There followed the following cross-examination:

Q. So, what are you on the phone for to Lam Sik on 20 June?

A. I just cannot recall.

Q. Cannot help us at all? Is that right?

A. Well, the reason I rang him is just to, basically to ask where Michael Lam is?

Q. That’s what I’m asking you, you see.

A. Oh, okay.

Q. What are you on the phone for to Lam Sik?

A. To look for Michael Lam.

Q. You’re chasing Michael Lam all day are you?

A. I just cannot get in touch with him, I just keep on ringing.

………………………………………………………………

Q. Am I right, ……….. you seem to be chasing him a lot on 20 June, is that right or not?

A. Well, I’m just confusing.

Q. Was there some reason you didn’t ring Michael Lam’s numbers?

A. Sorry?

Q. Was there any reason why you didn’t ring Michael Lam on any of his two numbers?

A. What I know to me is only one telephone number that belongs to Michael Lam, so I think I have tried his numbers. Probably it is not – it could be out of touch and so I rang Sik Lam’s number.

Q. What’s Lam Sik calling you for? Do you know?

A. Well, just probably returning my call and tell me about Michael.

Q. Do you know or are you guessing?

A. I just can’t recall.

Q. That’s your evidence is it, you can’t recall?

A. Yes.

Q. Why Lam Sik is calling in to you on 20 June last year?

A. Yes.

Q. And your evidence, am I right, is that you’re calling Lam Sik because you are trying to track down Michael Lam?

A. Yes.

Q. What happened, did you finally track him down?

A. No.

Q. Cast your mind back please if you would, 20 June is the Tuesday?

A. All these numbers.

Q. Tuesday, a lot on Tuesday, I suggest, you are trying to track down Michael Lam, right?

A. Hmm

Q. And you see him on the Saturday, right?

A. Yes.

Q. That’s what you’ve said, you had lunch with him?

A. Yes.

Q. What happened in between, did you ever track him down. No, is that your answer?

A. Yes.

Q. So between 20 June and 24 June you were unsuccessful in tracking him down until you met him by accident, is that right?

A. Yes.

Q. Just bumped in to him?

A. Yes.

Q. That’s your evidence, you just bumped into him by accident?

A. I don’t know what you mean by bump into him, it just happen that I met him on the day that he pop into the shop of Newtech.

Q. So you were at pains to try and get on to him on 20 June but you didn’t succeed, is that right?

A. Yes, you can put it this way.

Q. I’m asking you what you are saying about it you see. The Tuesday, the 20th, you try to find him and you can’t, am I following you?

A. Yes.

Q. Wednesday, Thursday, try, no contact?

A. No.

Q. And you give up trying to find him, am I right?

A. Yes.

Q. And Saturday by coincidence you run into him and you have lunch together?

A. Yes, that’s correct.”

29 The general tenor of the cross-examination of the appellant was that the appellant was at pains, on 24 June, to leave no clues, such as his name, telephone numbers or details of that kind, that could be traced back to him. It was put to him by the cross-examiner that the overall effect of what he could be shown to have said and done on 24 June indicated that he knew full-well that the favour which he was being asked to do for Michael Lam involved the handing over of drugs. The appellant denied, simply, comprehensively and consistently that he had ever had any such knowledge.

The Appeal against Conviction : Ground 1

“The learned trial judge erred in allowing “relationship evidence” to be admitted in the form of:

A. Times and duration of telephone calls between the appellant and Mr. Michael Lam and Mr. Sik Lam

B. Evidence of the surveillance and arrest of Mr. Michael and Mr. Sik Lam for supplying heroin on occasions subsequent to the alleged supply by the appellant.

C. Evidence of similar packaging and method of supply by Mr. Michael and Mr. Sik Lam on subsequent occasions.

30 At the inception of the trial, the Crown indicated an intention to lead the above categories of evidence as part of the Crown case. Objection was taken by counsel then appearing for the appellant. The trial transcript does not record details of the submissions put, respectively, by the Crown and by counsel for the appellant. There is, however, a transcript of a judgment delivered ex tempore by the learned trial Judge. It is useful to quote the following passages from that judgment in explanation of the way in which the competing submissions were framed:

[sic

The transcript is described as a revised transcript, but I suggest that the last sentence should read: “The question for the jury then, as I apprehend it, will be whether Mr. Fung knew that heroin was in the back pack. The Crown must prove it in order for the jury to convict Mr. Fung.”]

The Crown relies upon circumstantial evidence to make out its case as to knowledge. In that context the matter has arisen for determination by me after the swearing in of the jury before any evidence has been called or the Crown has opened.

[sic: but I suggest that the reference to ‘Mr. Gary Lammas’ is incorrect and that it is clear from what follows that his Honour was intending to refer to either or both of Mr. Michael Lam and Mr. Lam Sik].

That evidence has two steps to it. One is that Mr. Fung from 1 April 2000 to the evening of 24 June 2000 at 18.47, that is 6.47 p.m, engaged in numerous telephone calls with either Mr. Michael Lam or his father Lam Sik. In particular, the Crown wishes to rely on the three calls on 24 June 2000 at 16.56, 18.16 and 18.47, the first and last of which were from Mr. Fung’s mobile telephone to Michael Lam and the intervening one from Mr. Michael Lam’s phone to Mr. Fung.

The Crown wishes to establish from that evidence that there was, prior to the drop off of the heroin, an intimate relationship between the accused and Mr. Lam and his father, at least so far as telephone contact was concerned and so far as the last three phone calls to which I have referred, the Crown seeks the jury to draw the inference that they were made for the purpose of reporting to Mr. Michael Lam. That latter inference from those last three telephone calls depends upon what is to be made of the other evidence which is the second step and that is that Mr. Lam and his father were arrested in possession of heroin packaged, the Crown says, in a remarkably similar way to the packaging of the heroin delivered by the accused, Mr. Fung, to Mr. Micalizzi on 24 June 2000.

[sic: but I suggest that there should be a full stop after the word ‘Lams’; and a comma rather than a full stop between the words ‘the case’ and the words ‘The Crown’].

On its own, the evidence of the relationship of the accused to the Lams and to the finding of the heroin in the possession of the Lams would not be sufficient for any firm inferences to be drawn adverse to the accused and the Crown does not suggest otherwise but the Crown says that in combination with the other evidence sought to be adduced in the case, that it provides sufficient evidence for irresistible inference to be drawn on a circumstantial basis in respect of the accused on the question of knowledge.”

31 His Honour then summarises as follows the competing submissions that had been put by counsel at trial for the present appellant:

“The accused through his representative ……… opposes the calling and the adducing of that evidence, firstly on the basis it is irrelevant and cannot give rise to any of the inferences sought by the Crown whether in combination with other evidence or not, and then on the basis that under s 137 of the Evidence Act 1995 there is a danger of unfair prejudice to the accused which outweighs any probative value it might have and therefore must not be adduced. [Counsel] has also made reference to s 135 of the Evidence Act. …………………….”

32 Having thus summarised the competing submissions, his Honour is recorded as having given this ruling:

“I am of the view that in combination with other evidence sought to be adduced by the Crown the evidence as to the accused’s relationship with the Lams and the Lams being found in possession of heroin packaged in a similar way to that delivered by the accused to Mr. Micalizzi does have significant probative value and is highly relevant, and therefore the question is whether s 137 applies.”

33 His Honour then went on to consider the effect of s 137; but it is not necessary for the moment to refer in detail to that portion of his Honour’s ruling.

34 His Honour was, in my respectful opinion, correct in his perception that the crucial issue which would have to be determined by the jury was the issue of the extent of the appellant’s knowledge at the time of the handing over by him to Mr. Micalizzi of the back-pack and its contents. It will be observed that his Honour’s ruling, as recorded, does not give any indication of what had been suggested to his Honour by the Crown as being “the other evidence sought to be adduced in the case”. It will be observed, further, that his Honour’s ruling, as recorded, does not expose any process of reasoning supportive of the conclusions stated baldly by his Honour “……….. that in combination with other evidence sought to be adduced by the Crown the evidence as to the accused’s relationship with the Lams and the Lams being found in possession of heroin packaged in a similar way to that delivered by the accused to Mr. Micalizzi does have significant probative value and is highly relevant, ………….”.

35 It is, therefore, necessary for this Court now to examine more particularly the controversial material. Before doing that, it is useful to say something about the nature of what it was that the Crown was required to prove beyond reasonable doubt in connection with relevant knowledge in the appellant.

36 The leading Australian authority is the decision of the High Court of Australia in Bahri Kural v The Queen [1987] 162 CLR 502. That was a case involving, not a supply of a prohibited drug in breach of the Drug Misuse & Trafficking Act 1985 (NSW), but an importation of a prohibited drug contrary to the Customs Act 1901 (Cth). The principles stated in the following passages are, however, equally applicable to the former, as to the latter, class of offence:

“Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.

Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law……….”. [162 CLR, 504, 505 per Mason CJ, Deane and Dawson JJ]

37 A subsequent decision of the High Court, Pereira v Director of Public Prosecutions [1988] 35 A Crim R 382, a Court judgment, adds to the exposition in Bahri Kural the following propositions:

“………………………….. (W)here knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer’s shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.” [35 A Crim R, 385]

38 In the present case, there were no pre-trial admissions, and there were no admissions at trial, by the appellant concerning the matter of his relevant knowledge. It became, therefore, necessary for the Crown to prove beyond reasonable doubt as part of its case against the appellant facts and circumstances which, taken in combination, entailed that the only rational available inference was an inference that, beyond reasonable doubt, the appellant knew, when he handed over the back-pack and its heroin contents to Mr. Micalizzi, that he was in fact handing over a quantity of prohibited drugs.

39 Leaving aside the disputed material concerning the Lams, the Crown was able to point to “…………… a combination of suspicious circumstances and failure to make an inquiry ………. [which might] ………..sustain an inference of knowledge of the actual or likely existence of …………. [the relevant knowledge in the appellant].” Those “suspicious circumstances” are summarised sufficiently for present purposes in the following extract from the written Crown submissions in the present appeal:

“ - The appellant had the back-pack containing the heroin in his car;

- The calls to Micalizzi were made by a means preventing the caller from being identified, that is, from a public phone;

- At the time the calls were made the appellant was in possession of a mobile phone, yet went to significant inconvenience to go a public phone for minimal cost saving;

- The extremely guarded content of the two phone calls to Micalizzi. The appellant did not introduce himself, he did not say why he was ringing or that he was ringing on behalf of anyone else, he did not mention the backpack, he did not give his mobile phone number for Micalizzi to ring him back;

- When the appellant went to meet ‘Tony’ he did not take with him the very object of the exercise, namely the backpack. Rather he left it secured in his car parked outside the Commonwealth bank;

- Having met Micalizzi they then walked off up Pitt Street towards Bathurst Street, that is in the direction opposite to where the Nissan containing the backpack was;

- When the appellant went to his car with Micalizzi, the appellant drove Micallizzi away from the meeting place;

- The appellant provided the backpack to Micalizzi and let him out away from the original meeting place;

- The use of a hire car, albeit in the appellant’s name, due back the very afternoon of the supply.”

40 The written Crown submissions summarise also, and as follows, the substance of what the Crown sought to get out of the controversial evidence concerning the Lams:

“ - Records of phone calls established that between 1 April 2000 and 24 June 2000 the appellant rang both those men and they rang him on a number of occasions. In particular, there was some phone contact on the day the car was hired and later on on the day that the backpack was delivered to Micalizzi;

- Evidence (in the form of a statement of events ex Z), that on 6 September 2000, Lam Sik and Michael Lam supplied to a Mr. Chung 2.779 kg of heroin;

- A search warrant on Michael Lam’s home at Parramatta that day located a further 1.801 kg of heroin and other items;

- The heroin was packaged in basically the same distinctive way as the heroin supplied by the appellant on 24 June 2000 and scientific examination revealed that it came from the same batch of heroin as that supplied by the appellant on 24 June 2000.”

41 The fourth of the items quoted in the preceding excerpt from the Crown submissions, needs some further careful examination in the light of the evidence actually given at trial.

42 The Crown called at trial a Federal Agent named Christine Geisler, and one Snezana Skopec who was described as “……….. a senior profiling and research chemist at the Australian Forensic Drug Laboratory ……….a section of the Australian Government Analytical Laboratories at Pymble”.

43 Federal Agent Geisler was the witness through whom the Crown sought to establish the distinctive nature of the packaging of the heroin which was handed over by the appellant to Micalizzi on 20 June. The cross-examination of this particular witness elicited the following evidence:

“Q. As far as heroin is concerned, would you agree that from your knowledge it’s normally manufactured in a country where opium is produced?

A. Yes.

Q. After the harvest, multi-kilo lots are made then cut up and put into blocks and distributed around the world?

A. Generally, yes.

Q. As far as the heroin is concerned, the chemical make-up is much the same with some variation depending on how it’s been mixed?

A. Yes.

Q. And as far as how it’s wrapped is concerned, it doesn’t vary much in the way it’s transported, for instance, as in this case, there’ve been some wrapped in wrapping paper and plastic bags and are inside a silver foil, sometimes it appears like that?

A. Sometimes it does, yes.

Q. Sometimes it appears just in wrapping paper with plastic bags and no silver foil?

A. Sometimes, yes.

Q. But it’s all essentially done the same way, that it’s wrapped a number of times in items to try to keep it together so that it won’t break and fall out and have little bits of white powder falling out of it or however they bring it into Australia?

A. Usually, yes.

Q. It’s wrapped then also a number of times to try and keep the scent in so drug detector drugs dogs and things like that won’t come across it as they are going through the Customs barrier?

A. Yes.

Q. No doubt you see from time to time wrappings such as in exhibit G which wasn’t put before you, but you’ve seen the wrapping paper with little mobile telephones on it, some with pineapples on it similar to exhibit NN?

A. I’ve seen gift wrapping on heroin before, yes.

Q. And the idea of that is that if it comes in and Customs inspect it, if they don’t start opening it, they assume it’s just a gift for somebody in gift wrapping?

A. That’s possible, yes.

Q. So, it’s all part of the drug trafficker’s modus operandi, for want of a better word, of how they have found it reasonably successful to import drugs into Australia without them being detected?

A. That’s possible, yes.

[identifying the seizures made in September 2000]

A. Yes, I can agree to that.”

44 The relevant cross-examination of the specialist forensic chemist reads, as recorded, somewhat disjointedly, but its effect is completely clear:

“Q. Then the first one you did in time if you just assume that was a seizure made on 24 June?

A. That’s correct.

Q. The second lot both your groups were seized roughly the same time in September the same year, just accept that for a moment?

A. Yes.

Q. I think you’ve given evidence in relation to those, you are quite certain that they had similar, same, identical?

A. We describe it as closely similar in chemical terms, that means produced in the same laboratory.

Q. What you are able to say is you are not able to say if they were all made on the same day in the same batch, all you are able to say is the same lab?

A. Yes and they were produced overseas in South East Asia.

Q. As far as those seizures are concerned it’s possible one is made in a batch in June, imported to Australia in June, that may well have happened?

A. Perhaps. I really don’t know. I couldn’t comment on this.

Q. You can’t dispute that, you can’t say that’s impossible it couldn’t have happened?

A. That’s correct. I can’t say imported at the same time but sold in a different period of time. I really can’t speculate on those matters.

Q. As far as the lot that came that you analysed from the amount seized in September you have nothing to say other than that could have been produced in another batch months later and imported into Australia months later, you have no chemical availability to say anything other than that, you agree with that?

A. No.

HIS HONOUR:

Q. When you say ‘no’ you don’t agree or you do?

[sic: but I suggest the relevant sentence ought to read: ‘There is no such chemical analysis. Neither can we determine how old the samples are.’]

45 In my opinion, a fair reading of the passages quoted from the evidence of these two Crown witnesses does not convince that the evidence, if accepted at its highest point in favour of the Crown, was capable of establishing beyond reasonable doubt that the packaging of the heroin seized on 20 June, when compared with the packaging of the heroin seized subsequently in September, was so distinctive that any heroin found packaged in that fashion could be sourced back to either or both of the Lams. That consideration, alone, would be sufficient, in my opinion, to demonstrate that the materials categorised as B, C and D in the statement of Ground 1 were not relevant to proof of the issue of relevant knowledge in the appellant as at 20 June. I observe that, as best the fact can be judged from the available trial transcript, there was no application for a hearing on the voir dire in order to test the admissibility of this particular evidence. It would have been, as I respectfully think, appropriate for the learned trial Judge to have taken evidence on the voir dire in order to determine the admissibility of the challenged evidence. Had that course been followed, and had there been elicited on the voir dire the evidence that came subsequently to light in the trial proper, then the learned trial Judge would have been assisted much better than in fact happened, in coming to a properly reasoned conclusion about the relevance of the particular material.

46 I observe that, if the material in the categories B, C and D were not relevant and admissible, then there is no added consideration that would have made relevant and admissible the materials categorised as A in the statement of Ground 1.

47 In addition to the foregoing considerations, there is one additional consideration that militates against the relevance and the admissibility of the controversial material.

48 What had to be proved beyond reasonable doubt was relevant knowledge in the appellant as at 20 June 2000, and at the time when he actually handed over the heroin to Micalizzi. I can understand readily how the drawing of an inference beyond reasonable doubt that the appellant had the requisite knowledge might have been assisted by proof that the appellant, prior to 20 June 2000 had acted as a drug courier for the Lams; although, of course, much would have depended in that regard upon the precise nature of the tendered evidence of anterior dealings.

49 I do not understand, however, what basis there was thought to be for the proposition that proof of illicit drug dealings by the Lams some 4 months after 20 June 2000 could have had any rational part to play in the drawing of an inference beyond reasonable doubt that the appellant, 4 months prior to those dealings, had the requisite knowledge in connection with the particular transaction of 20 June. That is, in my opinion, even more the case when the evidence does not suggest in any way whatsoever any connection of the appellant himself with the September transactions.

50 It should be noted, in fairness to the Crown, that the Crown’s written submissions in the present appeal put the following argument to the contrary:

In those circumstances proof of the origin of the heroin was relevant.

51 The proposition that in the circumstances of this trial “proof of the origin of the heroin was relevant” is, in my opinion, dangerously imprecise. If the proposition is intended to convey that it was relevant to proof of the appellant’s knowledge to establish: first, that the heroin handed over by the appellant on 20 June had come to him from either or both of the Lams, and secondly, that the appellant was a good friend of the Lams; then, in my opinion, that bare proposition is wrong. The minimum that the Crown needed to prove, in my opinion, was first, that the heroin handed over on 20 June did in fact come to the appellant from either or both of the Lams; and, secondly, that the nature and the circumstances of the appellant’s close friendship with the Lams were such that the only rational inference was that he must have known that the Lams were active drug traffickers, so that there was at least a significant or real chance that what he was being asked to do for Michael Lam was something connected to drug trafficking.

52 In my opinion, the evidence tendered by the Crown in connection with the Lams was not capable, on a fair view, of making out such a case.

53 For the whole of the foregoing reasons, I am of the opinion that Ground 1 has been established.

54 That being so, it is necessary to take up, next, the Crown submission which is put as follows in the Crown’s written submissions:

“Even if an error of law was made in admitting the evidence, the appellant is not thereby entitled to have his conviction automatically set aside. No unfairness or prejudice arose by reason of admission of the evidence. In fact the evidence was also available to support the appellant’s defence that, in effect, the Lams, heroin dealers, used him in a ‘despicable and wicked’ way (SU 29).”

55 In my opinion, this submission should not be upheld. The relevant guiding principles are well established. It is convenient to take them from a frequently cited passage in the judgment of Barwick CJ in R v Storey (1978) 140 CLR 364 at 376:

“If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed, and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted.”

56 See also the recent decision of the High Court of Australia in Festa v The Queen [2001] HCA 72 (13 December 2001) where these principles are further discussed.

57 In applying the foregoing principles to the facts of the present case, care needs to be taken, in my opinion, not to be distracted from a correct analysis by the fact that the appellant gave evidence at his trial, and in the course of so doing admitted that it was from Michael Lam that he had collected the back-pack containing the heroin.

58 Had the evidence now challenged been rejected at trial, as in my opinion ought to have happened, then the Crown case would have contained, at its conclusion, no evidence respecting the origin of the heroin in the back-pack; no evidence connecting either of the Lams with that heroin; and no evidence connecting the appellant with either of the Lams. It is impossible to say what course the appellant might have followed at trial had the Crown case been in that condition when closed. Had the appellant not given evidence, then it does not seem to me that the Crown case, taken at its highest point in favour of the Crown, must inevitably have resulted in a conviction. Had the appellant given evidence, then there would have been, in my opinion, no readily apparent way in which the Crown could have cross-examined him in such a way as to have made admissible the material which, in my opinion, ought not in fact to have been admitted at all at the trial.

59 There is the further consideration that there is, in my opinion, a risk which is both real and unacceptable that the prejudicial effect of the wrongly admitted evidence unfairly influenced the verdict of the jury. It is true that the jury was given some direction by the learned trial Judge as to the impermissibility of a process of reasoning that is normally described as guilt by association. It seems to me, however, that the very nature of the evidence which was wrongly admitted entails a risk, real and unacceptable, not that the jury wilfully ignored the directions of the trial Judge, but that the subliminal impact of the wrongly admitted evidence might have had an influence that it ought not to have had.

60 For those reasons, I am of the opinion that there was, in the relevant statutory sense, a substantial miscarriage of justice by reason of the wrongful admission at trial of the evidence that I have been discussing in connection with Ground 1.

61 That conclusion, alone, would be sufficient to require the upholding of the appellant’s conviction appeal. Whether that result should entail a new trial or the entering by this Court of a judgment of acquittal is something to be determined in the light of this Court’s conclusion respecting Ground 8 to which I now turn.

The Appeal against Conviction ; Ground 8

62 The ground is:

“The conviction of the appellant is unreasonable having regard to the evidence in the case.”

63 The relevant principles are not in doubt. They are as established by the decision of the High Court of Australia in M v The Queen (1994) 181 CLR 487. Those principles are well known and frequently cited, and it is not necessary now to repeat them in detail.

64 On the given facts of the present case, I think that the key to the question raised by Ground 8 is to be found in the passage, earlier herein quoted, from the decision of the High Court in Pereira.

65 I do not think that it can be said that a properly presented Crown case, untainted by the wrongful admission of what I might call the Lam evidence, could not properly be left to a jury. I have quoted previously the summary contained in the Crown’s written submissions of the circumstantial case, exclusive of the Lam evidence, upon which the Crown relied at the appellant’s trial, and would presumably rely again at a re-trial. That circumstantial case seems to me to exhibit precisely that “combination of suspicious circumstances and failure to make inquiry” of which the High Court says plainly in Pereira that it “may sustain an inference of knowledge of the actual or likely existence of the relevant matter”. No doubt, and as the High Court was particular to emphasise, great care needs to be taken in the way in which such a case is left to the jury by the presiding Judge; but that is a long way short of saying that such a case cannot properly be left at all for the consideration of the jury.

66 If that be a correct analysis, then it would not be appropriate, in my opinion, for this Court itself to pre-empt what might be done by a reasonable jury properly instructed at a properly conducted re-trial.

67 I, therefore, would not uphold Ground 8. In the result, I would quash the appellant’s conviction and order a re-trial.

68 That being my ultimate conclusion, I do not think that any useful purpose is now served by discussing Grounds 2, 3, 5, 6 and 7 of the notified grounds of appeal against conviction. I do think, however, that it would be appropriate and useful for this Court to express a view upon Ground 4.

The Appeal against conviction: Ground 4

69 The ground is:

“His Honour erred in not allowing evidence to be adduced of a phone call on 23/06/00 at 22.10 hrs between Lammas and El Khouri (T221, Exhibit VD2).”

70 This particular phone call was made to Lammas by a woman named Maureen El Khouri. Lammas speaks of having just left a meeting, and of being “still with Tony”. Lammas tells Miss/Mrs. El Khouri that he is “red hot”. The only explanation of what this description is intended to convey has to be drawn from one or two fragments of conversation. Lammas says:

“………….. Somebody’s told – I know who it is – told a pack of lies to somebody and they’ve passed it on.”

71 And later:

“……….. Oh well, it’s going to cost me a lot of money to get out of it.”

72 It seems that the source of Mr. Lammas’ difficulty, whatever in particular it actually is, is somebody whom he describes as: “just one bloody smart arse that’s a mongrel”.

73 The question of the admissibility of evidence of this particular telephone conversation arose at a time when the accused had given his evidence-in-chief and was about to be cross-examined. Counsel at trial for the appellant, arguing in support of the admission into evidence of the contents of the conversation, put to the learned trial Judge that:

“………………..this call directly precedes the call that is made to Mr. Micalizzi from the person named Tony. I would suggest an available inference from that call is that some people in the group involved in the drug trafficking were either aware or suspected that – where the words are ‘so I’m hot. I’m red hot, somebody’s told’ etc. - indicates that somebody is aware or suspects that they have been tipped off to the authorities.

………….

[sic: but I suggest “call”]

74 The exclusion at a re-trial of the body of evidence which was wrongly admitted at the original trial would entail, in my opinion, that evidence of this conversation could not be relevant in the requisite statutory sense to the issue of the appellant’s relevant knowledge.

Orders

75 I propose the following orders:

[1] That the appeal against conviction be allowed;

[2] That the conviction and sentence be quashed;

[3] That there be a new trial of the appellant.

76 HULME J: Sully J has set out in some detail the nature of the Crown case against the Appellant and the evidence given in his trial and it is unnecessary that I repeat what his Honour has said. I should however provide a little more detail of the evidence the subject of objection in the first ground of appeal. It was put before the jury in a document Exhibit Z, copies of which were distributed to the jury. Then, in accordance with a modern practice which seems to have no benefits except to a jury member who cannot read, the Crown Prosecutor took a police witness in detail thorough the document line by line.

77 The document is entitled “SUMMARY OF EVENTS AND OCCURRENCES RELATING TO MICHAEL LAM AND OTHERS”. It refers to police surveillance of Michael Lam and his father Lam Sik and interception of telephone services they were using. It then refers to Mr Lam Sik’s movements in connection with a particular motor vehicle VBK-430, taking something which he placed in a pocket from the vehicle, walking to where another vehicle driven by Michael Lam was parked, opening a door of that vehicle, removing and then walking away with an “Officeworks” brand carry bag. Soon after Lam Sik is recorded as having approached a third vehicle driven by Mr Chung, speaking to Mr Chung and placing the “Officeworks” bag in that vehicle. The document described Lam Sik’s arrest soon afterwards.

78 The vehicle driven by Mr Chung was pursued. The pursuit, including substantial departures by Mr Chung from the traffic laws, was described. Mr Chung was then said to run from the vehicle carrying the Officeworks bag until he fell and was arrested. The contents of the Officeworks bag were described in a detail it is unnecessary for me to recount. They included 15 blocks of compressed heroin powder wrapped in ways which were described in detail. The net weight of the heroin found in the unit was 1.723kgs.

79 The document went on to say that later that day a search warrant was executed at Michael Lam’s apartment. In the course of the search 7 blocks of compressed heroin powder and other items were found. Again the wrapping was described in detail. The net weight of the heroin found in the unit was 1.11kgs.

80 It is unnecessary for me to recount here the details of the wrapping of all of these parcels. It is sufficient to say that, within the limits of lay description, there were points of identity and great similarity with that delivered by the Appellant.

Ground 1
The learned trial judge erred in allowing “relationship evidence” to be admitted in the form of:
A. Telephone calls and records of conversations between the appellant and Mr Michael Lam and Mr Sik Lam.

B. Evidence of the surveillance, arrest and search of Mr Michael and Mr Sik Lam (and Mr Chung) in relation to supplying and possessing heroin on occasions subsequent to the alleged supply by the appellant.

C. Evidence of similar packaging and method of supply by Mr Michael and Mr Sik Lam on subsequent occasions.

81 The first question which arises when there is a challenge to the admissibility of evidence is what, if anything, is its relevance. To use the words of s55 of the Evidence Act, is it “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue”? Here the fact in issue was whether at the time the Appellant delivered what was undoubtedly heroin, he knew, in the relevant sense of that term, that what he was delivering was heroin.

82 In considering the test posed by s55, it is important to recognise the width of the expression “could rationally affect” and that, where the evidence sought to be adduced is circumstantial, while it is obviously necessary to consider each component of the evidence the admissibility of which is challenged, it is not sufficient to consider each such component in isolation.

83 I turn first to the topic of the packaging. On this topic I agree with Sully J that the packaging of the heroin seized on 24 June and the subject of the charge against the Appellant, when compared to the packaging of the 2 parcels of heroin seized subsequently in September, was not so distinctive that one could conclude beyond reasonable doubt that the heroin supplied by the Appellant could be sourced back to either or both of the Lams. On the other hand, there were very substantial similarities between the parcels and, if the balance of the evidence the subject of this ground is admissible, then the details of the packaging are also.

84 And there was another feature of all three parcels of heroin which is of more significance. Mr Skopec, the specialist forensic chemist called by the Crown, examined a number of samples from the parcel of heroin which the Appellant delivered and a number of samples from each of the two parcels with which the Lams were involved in September. Mr Skopec said that all samples from any one parcel showed that they had been produced as part of the one production batch of heroin. He also said that all three parcels of heroin were produced in south-east Asia in the same laboratory and using the same manufacturing method – T191.7. It was made clear that Mr Skopec was not saying that all three parcels came from the same production batch. However, Mr Skopec also said that some samples from all three parcels showed a contamination, probably from the packaging material, which was almost unique. The particular contamination had been found in only one other parcel of heroin of the thousands he or the Australian Forensic Drug Laboratory had analysed in the past 6 years. That other parcel had been seized in Fiji. – T192

85 Of itself, this evidence demonstrates no connection between the Lams or the heroin with which they were associated and the Appellant or the heroin with which he was involved beyond, perhaps, a common packager. On the other hand the fact that the contamination, and by inference the particular packaging, was so rare does raise the possibility of a connection more downstream in the distribution chain.

86 I turn to the evidence of phone contacts between the Appellant on the one hand and Lam Sik and Michael Lam on the other. The evidence of the phone calls shows that between 1 April 2000 and 24 June there were calls on an almost daily basis. The number of calls varied but rarely was there only one. At times the calls were very frequent. Thus in the week commencing 25 April the number of calls each day was 8, 8, 18, 5, 3, 1 and 11. In the period when calls were most frequent, viz. in the week commencing 23 May, the number of calls each day was 11, 10, 6, 23, 34, 35 and 23. In the period from 13 to 24 June the number each day was 3, 2, 9, 2, 1, 1, 1, 8 (on 20 June) 0, 0, 0 and 3. It is not uncommon to find calls in the very early morning e.g. between midnight and about 2 am, then none until the early afternoon and then numerous calls, albeit at irregular intervals until midnight and into the early hours of the next morning. Many of the calls were of short duration. For example, using the 24 hour clock, the calls and their duration on 15 June were at 0115 hours (4 minutes, 5 seconds – (4.05)), 1533 (1:37) 1644 (0:19) 1713 (0:06) 1714 (1:31) 1756 (0.09) 2243 (0.17) 2244 (2:18) 2327 (0.19).

87 It may be that some allowance should be made for the possibility that some calls fell out or were otherwise accidentally disconnected but even so, the frequency shows an extraordinarily close association in some activity or activities. Of more significance is the fact that the pattern of calls does not reflect any form of normal social or business contact.

88 The third aspect of the evidence objected to in this ground is the evidence of, on 6 September 2000, the delivery by Lam Sik of the parcel of heroin in the Officeworks bag and the finding of heroin in Mr Michael Lam’s apartment. Of itself, this evidence could say nothing about the Appellant’s state of knowledge over 2 months earlier. Indeed of itself, it says nothing on the issue of whether the Lams had any involvement with heroin in June 2000. Two months is time for circumstances to change, for Lam Sik and Michael Lam to commence an activity with which they had no prior involvement.

89 But, as I have indicated, it is not sufficient to consider the matter to which I have referred in isolation. Both the Appellant and the Lams participated, albeit on separate occasions, in the supply of large quantities of heroin. The heroin supplied on both occasions shared similarities and in particular a very unusual characteristic. For some months up to the Appellant’s arrest on the day of the seizure in June, the Appellant and the Lams had an extraordinarily close association in some activity or activities of other than a normal social or business nature. Considered in totality, it seems to me that the evidence of the similarities and the unusual characteristic in the heroin, the evidence of the association and the evidence of the Lams’ activities “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability” that at the time the Appellant delivered heroin, he knew that what he was delivering was heroin.

90 The evidence argues for the conclusion that over a period leading up to the Appellant’s arrest the Appellant and the Lams were jointly engaged in an illegal activity, that the extent of the Appellant’s involvement meant that he knew what that activity was, that the Lams carried on the activity after the Appellant’s arrest, that the activity included the supply of heroin and that therefore, when the heroin was supplied by the Appellant on 24 June, he knew it was heroin. The evidence was therefore relevant and, subject to other provisions of the Evidence Act, admissible.

91 In further opposition to the admissibility of the evidence reliance is also placed on behalf of the Appellant on the provisions of s98, 135 and 137 of the Evidence Act. So far as is presently relevant section 98 provides:-

(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar; and

(b) the circumstances in which they occurred are substantially similar.

92 The first thing to be noticed is that the section does not make evidence of related events completely inadmissible. What the section does is to make evidence of such events inadmissible to prove, by a specified method of reasoning, the specific matters to which the section refers. The next observation to be made is that there is nothing in the record of the trial to suggest that the evidence the subject of this ground of appeal was admitted or used in the way which s98 proscribes. Counsel for the Appellant sought to suggest that references by his Honour in the course of his Reasons for admitting the evidence to the effect that the heroin seized from Messrs Lam was packaged “in a remarkably similar way” to that supplied by the Appellant indicate that s98 was offended. However, the similarity had other functions to perform, viz to suggest that the heroin supplied by the Appellant came from, or was connected with the activities of, the Lams. The similarity did not tend to prove that, because of the improbability of the events occurring coincidentally, the Appellant did a particular act or, given the fact in issue, had a particular state of mind.

93 The third matter to be noted is that although in totality the evidence was directed to proving that the Appellant had a particular state of mind, in totality it does not fall within the definition of “related events”. Nor, do most of the component parts.

94 The similarity and characteristics of the heroin in each seizure are not an “event”. Although phone calls are phone calls and thus have some characteristics in common, there was no suggestion that those in evidence here were otherwise substantially and relevantly similar or that the circumstances in which they occurred were substantially similar or that the evidence of them was directed to proving that, because of the improbability of them occurring coincidentally, the Appellant did a particular act or had a particular state of mind. The evidence of the calls was directed to proving that there was an association between the Appellant and the Lams which had certain characteristics.

95 The evidence of the Accused’s heroin dealing was directed to proving the physical component of the charge against him. The evidence of the Lams’ dealing was directed to proving the nature of the business in which they, and by inference the Accused, was involved. I rather doubt whether there was sufficient similarity in the events or circumstances to enable the dealings to fulfil the requirements of s98(2) for related events but the evidence of them was not directed to proving that “because of the improbability of them occurring coincidentally” the Appellant had a particular state of mind. Nor was the evidence of the similarity in the heroin so directed.

96 Sections 135 and 137 provide:-

135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

137. In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

97 There can be no doubt that the admission of the evidence involved a danger of unfair prejudice to the Appellant. There was a risk that the jury might use it by impermissible reasoning to infer the Appellant’s guilt by reason of his association with the Lams. However, the evidence also had high probative value particularly as the primary facts demonstrated by it would not seem to have been in dispute (although the inferences to be drawn no doubt were). Furthermore, although I do not need to rely on it, on one view that probative value was increased by reason of the fact that other evidence on the issue of whether the Appellant had a state of mind necessary to any conviction was by no means strong.

98 The issues posed by s137 were considered by the learned trial judge. He took the view that the section did not require the exclusion of the evidence – a view with which I agree. His Honour took the view that, in those circumstances, no separate consideration of s135 was required. In this I also agree with his Honour.

99 There is one further argument advanced on behalf of the Appellant to which I should refer. Counsel appearing for him characterised the evidence the subject to this ground as “relationship evidence” and then sought to pray in aid numerous references in the authorities to the effect that evidence so described is admissible only if it has strong probative force. The term “relationship evidence” is nowhere to be found in the Evidence Act. It is a description of evidence often convenient to use in a particular context. But I deprecate the attempt to use it in this case and then to seek to apply to the evidence so described remarks that have nothing to do with the circumstances here. The evidence the subject of this ground is no more usefully described as relationship evidence than would be evidence of any friendship, or of a partnership under the Partnership Act, or of the relationship of any partner with another.

100 In the foregoing I have directed attention to the more significant aspects of the evidence the subject of the first ground of appeal. In that the ground refers to “Evidence of the surveillance, arrest and search of Mr Michael and Mr Sik Lam (and Mr Chung)” and “Evidence of similar .. method of supply by Mr Michael and Mr Sik Lam on subsequent occasions”, it covers matters to which I have not specifically referred. These seem not to have been the subject of any specific attention at the Appellant’s trial separate from the evidence of the possession by the Lams of heroin, and indeed there is no reason to distinguish them. The additional matters are largely just incidental features appropriate to be mentioned to place the possession in context and to the extent to which they may go further, the reasons given above justify the admissibility of the vast bulk of the additional matters also. There is some evidence which was unnecessary and irrelevant, such as details of the chase of Mr Chung but, in terms of its impact on the Appellant, it is inconsequential.

101 The way in which this ancillary evidence came before the jury was as follows. On the first day of the trial and over objection his Honour held that “the evidence as to the accused’s relationship with the Lams and the Lams being found in possession of heroin packaged in a similar way to that delivered by the accused … does have significant probative value” and decided to admit it. So far as one can judge from his Honour’s remarks, no attention was given otherwise to the “Evidence of the surveillance, arrest and search of Mr Michael and Mr Sik Lam (and Mr Chung)” and “Evidence of similar .. method of supply by Mr Michael and Mr Sik Lam on subsequent occasions”.

102 At the commencement of the fourth day of the trial the topic was again referred to. So far as is presently relevant, the transcript records T144:-

“The Crown… continued that in relation to Michael Lam’s evidence Counsel have now agreed on a summary of facts.”

103 Soon after Exhibit Z, the “SUMMARY OF EVENTS AND OCCURRENCES RELATING TO MICHAEL LAM AND OTHERS”, was tendered and, according to the transcript, admitted without objection. In effect, once his Honour ruled that evidence showing the involvement of the Lams with heroin was admissible, no objection was taken to the detail. Although I have given consideration to this detail, I am satisfied that rule 4 of the Criminal Appeal Rules should be invoked and the Appellant precluded from relying on any complaint relating to it. Of course I do not suggest that Rule 4 has any relevance to what I may call the substance of the ground.

104 This ground of appeal is not made out.

Ground 2

The directions of the learned trial judge in respect of the use of “relationship evidence” were erroneous and insufficient

105 Included in his Honour’s directions was the following:

“The specific matter in the evidence that I wish to go to and give you a warning about is the evidence adduced by the Crown in relation to Mr Fung’s friendship with, association with Michael Lam and his father, Lam Sic. The Crown has adduced that evidence for a specific purpose and that is for the purpose of asking you to make the inference from that evidence along with other evidence in the trial that because there was, this is what the Crown says, an intimate relationship between the accused and in particular Mr Michael Lam and the Lam family in the form of Soc Lam in particular, and because Michael Lam and Sic Lam are demonstrated by the evidence to be dealing in heroin, that it is more likely that the accused knew of their dealing in heroin. That is, it is improbable bearing in mind his relationship with them and in particular the intimacy through the telephone calls in the period leading up to 24 June 2000, it is improbable that the accused did not know that Mr Michael Lam and Sic Lam were dealing in heroin and it is a matter that the Crown asks you to take into account along with the other evidence in the case.

If that were the only evidence alone then it would certainly not be sufficient to prove beyond reasonable doubt the guilt of the accused but the Crown asks you to take it into account and suggests to you that when you take that into account with the other evidence that it has the result the Crown contends for, namely, that you would be satisfied beyond reasonable doubt of the guilt of the accused. The warning I must give you is that while you can if you decide to accept that submission of the Crown, and that is a matter entirely for you, while you may use it in that way if you see merit in that argument you must not use that evidence for a purpose of prohibited reasoning, if I can put it that way.

You must not use it for the purpose of what we call guilt by association. In other words you must not reason from it that just because the accused knew Mr Michael Lam and Sik Lam and that they dealt in heroin that he is therefore guilty because he knows people who deal in heroin. As I say that is a line of prohibited reasoning and you will obviously see why that must be prohibited. It is a part of our sense of fairness in general life that people are not condemned on the basis of what we call guilt by association and so it must be in this case.

106 A number of complains were made arising from this passage. It was submitted that there was no evidence of “intimacy through the telephone calls in the period leading up to 24 June.” Given that the evidence of the telephone calls covered the period from 1 April to 24 June, it is clear that this was the period to which his Honour was referring, not merely the last few days of that period, and the jury would not have otherwise understood the reference. And the reference “intimacy” is clearly a reference to the extraordinary frequency of the calls. This was no misdirection (and counsel’s absence of objection at the trial would suggest he did not think so either).

107 Further complaints were that the jury were not told:-

(i) that they could not reason that, because others dealt in heroin, then the Appellant did;

(ii) as to how to use the evidence of the police pursuit and arrest of the person Chung; or

(iii) that they could not reason that “because of the improbability of the similar events occurring in the case of the Lams and similar “gift wrapping” packaging of heroin found in Michael Lam’s possession that the Appellant had a particular state of mind at the time of the offence that the jury were considering”.

108 One response to these complaints which, while not conclusive is of significance, is that the judge was not asked to so inform the jury. That is an indication either that counsel considered it preferable that no such direction be given or that the possibility of the chain of reasoning now said to be impermissible was, or was thought to be, insignificant.

109 Secondly, it is no function of a summing up to address whatever possible, but improbable, lines of reasoning counsel later appearing for an accused in the Court of Criminal Appeal may be able to imagine and which were never raised at a trial. Putting before the jury possible (but impermissible) chains of reasoning just for the sake of knocking them down runs the risk of increasing the chances the jury will follow those chains or, at the every least, of a ground of appeal that, despite the instruction, the unnecessary raising of the matter by the trial judge was liable to lead the jury into the forbidden reasoning – c.f. KRM v R (2001) 206 CLR 221 at [37]. I do not doubt that, at times, when the risk of a jury following an impermissible line is judged sufficient, such a course may be required but I am not persuaded that it was so in this case except insofar as his Honour warned the jury about not inferring guilt by association.

110 Thirdly, in the case of the first complainant referred to, there was no need for his Honour to raise the matter because there was no reasonable possibility that the jury would reason that way. Nor was there any need for his Honour to raise the second because the evidence of the pursuit and arrest of Chang was only, and was clearly only, an incident in the proof that what Lam had handed to Chung was heroin.

111 So far as the third of the complaints I have listed is concerned, it is in the highest degree improbable that any jury would reason as suggested in that complaint. Furthermore, I am by no means persuaded that counsel’s omission to ask for the direction the subject of this complaint was not a tactical one. The similarity in packaging had become largely irrelevant once the Appellant gave evidence that he had in fact received from the Lams the heroin he supplied and his case was not likely to be served by the judge reminding the jury of such similarities there were in the heroin deliveries, and of the similarity in packaging and then telling the jury that they could not reason from the coincidences towards the Appellant’s state of mind.

112 The next complaint is that there was no mention in the summing up of the fact that the Lams’ dealing in heroin was later than the events with which the Appellant was charged and his Honour did not explain to the jury how these events of September could have affected the Appellant’s state of mind in June. As a matter of fact, this complaint is correct. However, the way in which the Crown put its case was so clear that these omissions are in my view insignificant. The events in September were directed to showing the Lams were dealing in heroin then and, given the Appellant’s evidence of Mr Michael Lam having supplied heroin to the Appellant in June, that the Lams were in the business of heroin dealing and, given the relationship, the Appellant must have known this.

Ground 3

The learned trial judge erred in refusing to admit evidence of the character and criminal history of alleged co-offenders, in circumstances where the appellant was of good character.

113 The transcript of the trial does not readily identify who all these co-offenders were except by the reference “these other people the names have been coming up through the brief” (sic) and a question by his Honour “Mr King (defence counsel) is trying to move the others were all criminals” to which the Crown Prosecutor responded “correct”. (Given the context it seems clear that the recorded “move” should be “prove”). According to what defence counsel said when arguing the admissibility of the evidence “some (of these people) have long lengthy convictions for drugs and imprisonment for heroin trafficking.” (sic.) However the co-offenders clearly included Messrs Micallizi and Lammas.

114 It was submitted that the admission of this evidence tendered to provide support for the Appellant’s assertion that he had been set up. It was submitted that it was relevant to contrast the Appellant’s character with that of Micallizi and Lammas in order to counter the Crown’s argument referred to in the summing up that the delivery was the product of a “slick professional outfit.”

115 I confess I cannot follow the logic in that last proposition. Given that there was no (significant) dispute that what the Appellant delivered to Mr Micallizi was heroin, the evidence in the case clearly established that Messrs Micallizi and Lammas were criminals by reason of their involvement with the heroin the subject of the charge. But whether this was their sole criminality or they had indulged in criminality in the past, of itself says nothing on the issue of whether in making the delivery with which he was charged, the Appellant was a willing criminal or an unwary dupe. It is unnecessary for me to embark on a consideration of whether evidence along the lines of that now pressed would ever be admissible. It is sufficient to say that in the circumstances here, the evidence of prior criminality of others involved says nothing on the issue of the Appellant’s guilt.

Ground 4

His Honour erred in not allowing evidence to be adduced of a phone-call on 23/06/00 at 22.10 hrs between Lammas and El Khouri

116 During this phone call, recorded by the police, Mr Lammas said at various times, inter alia:-

“so, I’m not –I’m red hot…

Yeah. Somebody’s told – I know who it is – told a pack of lies to somebody and they’ve passed it on…

It’s going to cost me a lot of money to get out of it…

Just one bloody smart arse solicitor that’s a mongrel. I’ll explain it all to you…

I’ll get out – you know, I’ll get out of it but by Jesus, you know, I feel like going around and wantin’ to shoot this guy.”

117 It was submitted that these remarks tended to show that Mr Lammas knew that the police were watching him and such a conclusion provided a possible reason why the Appellant, who claimed to be an unwary innocent, was asked to deliver the backpack containing the heroin. It was submitted the evidence, if accepted, could thus rationally affect the probability of a fact in issue in the proceedings.

118 At the trial the Crown objected to the evidence on the ground of relevance. In rejecting the evidence his Honour said that the conclusion sought to be drawn was entirely speculative and for that reason the evidence was irrelevant.

119 In the appeal, the Crown did not seek to support his Honour’s ruling, contenting itself with a submission that the rejection of the evidence still left it open to the Appellant to claim he was an unwary innocent and resulted in no substantial miscarriage of justice.

120 I agree with the learned trial Judge. The references may certainly be thought to reflect a belief on the part of Mr Lammas that someone was displeased with, or pressing him but whether that someone was the police or someone else, perhaps drug dealers or other criminals is something for which the conversation provides no guidance. And if it was the police who were being referred to, Mr Lammas’ concerns were not such as to preclude his own direct involvement.

121 This ground fails.

Ground 5

The directions given by the learned trial judge as to the requirement of proof of the appellant’s knowledge was inadequate.

122 What his Honour said relevant to this ground included:-

“You may in your role as judges of the facts draw inferences from the direct evidence … In a criminal trial you must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things that means you should be extremely careful about drawing any inference. … In the context of a criminal trial where proof is required beyond reasonable doubt, you should not draw any inference against the accused from the direct evidence unless it is the only rational inference in the circumstances.

You have been presented with an amount of telephone intercept material. … However, if you think that any of what is said or what is meant in those conversations is, contrary to the Crown’s arguments, reasonably open to an innocent interpretation you must give the accused the benefit of that innocent interpretation. …

The onus of proof is the subject of the next important direction of law which I must give you. This is, as has been emphasised, a criminal trial and the burden of proof of the guilt of the accused is placed firmly upon the Crown. That onus remains upon the Crown in relation to every issue in this case. This does not mean that the Crown has to prove the truth of each assertion of each Crown witness. What the Crown must prove beyond reasonable doubt is each ingredient of the charge. There is no onus of proof on the accused at all. …

Well members of the jury as you have already been told what is at issue in this case is whether the accused knew that he was in possession of heroin when he handed it over to Mr Micalizzi.

In this case it is necessary in order for the Crown to establish its case for you to be satisfied beyond reasonable doubt that when the accused gave the heroin to Mr Micalizzi he, that is the accused, Mr Fung, knew that what he was giving to Mr Micalizzi was heroin and that it was of an amount which as the charge says was not less than the large commercial quantity applicable to heroin. Now let me deal with the question of knowledge. There is no technical legal concept involved in this. A person cannot know in the relevant sense that I am dealing with unless he actually knows. He cannot have that knowledge just because you think in the circumstances you would have known or just because you think he should have known. The Crown must establish to your satisfaction beyond reasonable doubt, subject to something that I am shortly going to say to you, that he actually did know that what he was delivering to Mr Micalizzi was heroin. …

Now that is subject to this that I tell you. The Crown is obliged to prove as I say that the accused had actual knowledge that what he was handing over to Mr Micalizzi was heroin and that the amount was not less than the one kilogram or a belief that there was a significant or real chance that such was the case. Now I will repeat that. The Crown is obliged to prove that the accused had actual knowledge that what he was giving to Mr Micalizzi was heroin and that the amount exceeded one kilogram or a belief that there was a significant or real chance that such was the case. That is a belief on the part of Mr Fung.

Now you can see why I gave you that last part of the direction. It must be so because even apart from whether someone actually looks in the package and sees whether it is powder or not of course you would ask the question, well, how do they know it is heroin without doing an analysis back in the laboratory? The answer very shortly would be, well, you do not, do you? But if someone has told you it is heroin and you expect it to be heroin and everything points to it being heroin because that is the way that everybody is dealing with it then a person dealing with the heroin in terms of in this case supplying it, if every other element of the offence is made out, will be guilty of the offence because they have a belief that there is a significant or real chance that it is heroin. …

Now members of the jury I have said to you that the crux of this matter is the question of whether the accused, Vincent Fung, knew that when he handed over the backpack to Mr Micalizzi it contained heroin. And that really comes down in the end I suggest to you to whether he had a belief at the time that there was a significant or real chance that such was the case. That is, whether the Crown has established to your satisfaction beyond reasonable doubt that he had such a belief.

123 Later when his Honour was summarising the Crown case he said:-

The Crown says that you would come to the conclusion beyond reasonable doubt that there was a significant or real chance that Mr Fung knew or believed he was dealing with heroin of an amount over one kilogram precisely because that was what he was asked to do. He did not need to look in the bag to see whether there was powder there. He did not need to have it analysed because that was precisely what he understood his task to be. And the same applied of course to Mr Micalizzi. He did not look in the bag because he knew what he was getting. Everybody knew and believed that it was heroin without needing to look.

124 It has been submitted that these directions amounted to a reduction in the standard of proof in that the jury were told that they could be satisfied beyond reasonable doubt if they were satisfied that there was a significant or real chance that the Appellant believed there was heroin in the bag.

125 There is no doubt that in his Honour’s statement of the Crown case as set out in the passage last quoted there is an erroneous statement of the law. The words “Mr Fung knew or believed” are misplaced and should have appeared after “doubt that” rather than “chance that”.

126 On the other hand, the earlier directions of his Honour that what the Crown had to prove was knowledge or a belief that there was a significant or real chance that what he was handing over was not less than 1kg of heroin were correct – Lau (1998) 102 A Crim R 167. These directions were repeated at the time they were given and repeated again in the passage commencing “now members of the jury.” They were consistent, in a way the statement made when summarising the Crown case was not, with the more general direction that the Crown have the onus of proof of every issue beyond reasonable doubt and the direction that, subject to the qualification about belief that there was a significant or real chance that the subject of the delivery was heroin, that the Crown had to prove that the Appellant knew that what he was delivering was heroin.

127 In these circumstances I have no doubt that despite the error during the judge’s summary of the Crown submissions the jury properly understood the test they were to apply. In this regard and although I do not need to rely on it, it is noteworthy that although objection was taken to his Honour’s directions to the jury on this topic of knowledge, the particular error to which I have pointed was not adverted to. That is some indication that, in context, it was of minimal or no impact.

128 The objection which was taken at the trial to the summing up in this regard was that his Honour had placed undue emphasis on the issue of belief of a significant or real chance as distinct from knowledge simpliciter. Having read and re-read what his Honour said, I do not agree that there was any undue emphasis.

129 A further point which was taken under this ground of appeal was that his Honour’s direction that the jury should not draw any inference against the Appellant unless it was the only rational reference in the circumstances was limited to inference “from the direct evidence” as apposed to circumstantial evidence. Commonly a distinction is drawn between circumstantial and direct evidence, the latter term being used to refer to evidence directly linking an accused with an offence, such as persons who saw an accused committing an offence. However, when his Honour’s use of the expression “direct evidence” is considered in context, it is clear that he was not so restricting it and was referring to what might be otherwise described as primary evidence and which was in fact circumstantial evidence – evidence of events on circumstances from which inferences might be drawn. This ground fails.

Ground 6

The learned trial judge erred in refusing to discharge the jury following the admission of the “relationship evidence” and his directions to the jury on the requirement of proof of the appellant’s knowledge.

130 In light of the conclusions earlier expressed in relation to grounds 2 and 5, this ground also fails.

Ground 7

The learned trial judge erred in failing to fully and fairly leave the defence case to the jury

131 The complaints made under this ground fall into two categories. The first is that his Honour erred when, in the course of summarising the Crown case he said:-

132 It was submitted that the Appellant had not said “he forgot to take the backpack with him to the meeting.”

133 As a matter of literal accuracy, the submission is correct but it is appropriate to record what the Appellant in fact said. His evidence included the following:-

134 There is a difference between “I just never thought of it” and “forgot” but, in context, the difference is very small. The error was in recounting the evidence, or the Crown’s summary of it and there is no reasonable possibility that it could have had any effect on the result. I should perhaps add that, at their request, the jury was given a copy of the Appellant’s evidence. This occurred at some time between 2.10 when the jury retired to consider its verdict, and 3.55 that afternoon. They returned with their verdict at 1.45 pm on the following day so there was plenty of time to read the exact words used if the jury regarded the matter as significant. However the Appellant’s evidence did extend over 56 pages and one could not assume all members of the jury read the passage I have quoted. Thus I prefer to base my conclusion on what I regard as the insignificance of the error.

135 The second aspect of this ground lay in remarks of his Honour which were said to undermine defence submissions. These remarks were:-

“In this context it is appropriate that I refer to the role of counsel. They have as was their right referred to the evidence or parts of it and addressed various arguments to you. In doing so they were seeking to assist you in your task.

Now in this context also, it is appropriate that I make reference to something that Mr King had to say to you. He mad reference to the stage show “Chicago” and made reference to the role of apparently one of the characters in that show and he made reference to the Crown attempting to “razzle dazzle” the jury. He made reference at one stage to “moving the goal posts” and at another stage he made reference in the context of the show to the character “attempting to pull the wool over the eyes” of the jury. Now he indicated to you that he did not mean to cast any personal aspersions upon the Crown in this case but I have to say this to you. If I had the slightest thought that the Crown had attempted to pull the wool over your eyes then I would be obliged to and I would intervene to indicate that to you and to correct the Crown. In fact that would apply either to the Crown or to any counsel for any accused and I have to say to you quite seriously that in this case there is no cause for me to correct the Crown in terms of any attempt being made to pull the wool over your eyes. It is the job of the Crown to address to you arguments properly based upon the evidence that has been adduced in the trial and there is absolutely no reason for me to say to you otherwise than that the Crown has performed that job.

136 This court does not have a copy of defence counsel’s address to the jury which apparently inspired his Honour’s remarks. There is nothing therefore to suggest that they were not an appropriate response to what defence counsel had said. Indeed it would seem that, in the course of discussion immediately prior to the commencement of the summing up, defence counsel agreed to a direction in terms similar to those in the first of the passages I have quoted when considering this ground of appeal.

137 While counsel addressing a jury are entitled to a deal of latitude, judges have a duty to ensure that that latitude is not carried to excess and that the result is not unfairness to either party. One may accept that attempts to redress any exceeding of the bounds is liable to lessen the standing in the eyes of the jury of the counsel or address corrected but, insofar as that is an inevitable consequence of the occasion for redress, it provides no justification for complaint.

138 Here the trial judge’s remarks were cast in moderate terms, directed at what would seem to have been particular, and his Honour thought, inappropriate, remarks during the course of defence counsel’s address. His Honour’s remarks were not directed at counsel himself nor to the defence case. There is, as I have said, nothing to show that his Honour’s remarks were not called for. In these circumstances the remarks provide no basis for any interference with the jury’s verdict.

Conclusion

139 It follows that the Appellant’s appeal against his conviction should be dismissed.

Sentence

140 There was also an appeal by the Crown against the sentence imposed. In light of the conclusion at which the majority of the Court have arrived as to the disposition of the appeal, it is not appropriate that I embark upon a consideration of the Crown Appeal.

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Citations

R v Fung [2002] NSWCCA 479

Most Recent Citation

R v Micalizzi [2004] NSWCCA 406

Cases Citing This Decision

4

R v Batak (No 2) [2022] NSWSC 425

RH v R [2014] NSWCCA 71

Christian v The Queen [2013] NSWCCA 98

Cases Cited

4

Statutory Material Cited

4

Gallagher v The Queen [1986] HCA 26

Festa v The Queen [2001] HCA 72

CITATION:	Regina v Vincent Yiu Chen Fung [2002] NSWCCA 479
FILE NUMBER(S):	CCA 60107/02; 60041/02
HEARING DATE(S):	6 September 2002
JUDGMENT DATE:	5 December 2002
PARTIES :	Regina Vincent Yiu Chen Fung
JUDGMENT OF:	Beazley JA at 1; Sully J at 2; Hulme J at 76

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0178
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL :	D. Woodburne - Crown G. Bashir - Fung
SOLICITORS:	S. E. O'Connor - Crown Murphys Lawyers Inc - Fung
LEGISLATION CITED:	Drug Misuse & Trafficking Act 1985 (NSW) Criminal Appeal Act 1912 (NSW) Customs Act 1901 (Cth) Evidence Act 1995
CASES CITED:	Bahri Kural v The Queen [1987] 162 CLR 502 Pereira v Director of Public Prosecutions [1988] 35 A Crim R 382 Festa v The Queen [2001] HCA 72 (13 December 2001) M v The Queen (1994) 181 CLR 487 KRM v R (2001) 206 CLR 221 Lau (1998) 102 A Crim R 167
DECISION:	Appeal against conviction allowed; conviction and sentence quashed; new trial ordered