R v He & Bun
[2001] VSCA 58
•10 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 10 of 2000
| THE QUEEN | |
| v. | |
| PEN HE | |
| THE QUEEN | No. 11 of 2000 |
| v. | |
| SAMBO BUN |
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JUDGES: | PHILLIPS, C.J., BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 April 2001 | |
DATE OF JUDGMENT: | 10 May 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 58 | |
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CRIMINAL LAW - Accomplice – How and by whom determined whether witness an accomplice – Warning not sought – Duty in circumstances to give – Convictions quashed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J. Champion | Office of the Commonwealth Director of Public Prosecutions |
For the Applicant He | Mr. P.G. Priest Q.C. with Mr. M.J. Croucher | Christopher Traill and Associates |
For the Applicant Bun | Mr. P.F. Tehan Q.C. with Ms S. Cure | Cole and Magazis |
PHILLIPS, C.J.
BATT, J.A.:
The applicants, (hereafter referred to as He and Bun) and who are aged 41 and 40 respectively, were convicted by a jury in the County Court at Melbourne on 21 December 1999 on several counts. He was convicted on counts 3 and 4 on the indictment and Bun was convicted on counts 1 and 2. A third accused person, Kho Iv, was acquitted on counts 5 and 6. In all three cases the first count was one of possession of prohibited imports, namely heroin of not less than a trafficable quantity, and the second one of attempted possession of the same. These pairs of offences were said to have been committed at Melbourne respectively on 11 June 1997 and between 8 and 11 June 1997. Neither applicant had prior convictions and, after hearing pleas for leniency, the learned judge, on 24 January 2000, sentenced each to be imprisoned for five years (commencing on that day) on the count of possession and seven years four months (commencing on that day) on the count of attempted possession making for a total effective sentence of seven years and four months. His Honour fixed a non-parole period of six years and seven months.
The applicants later lodged notices of application for leave to appeal against conviction and sentence and, after leave to substitute or add grounds was given by the learned Registrar, the grounds pleaded in relation to conviction came to read as follows in the case of He:
“1.The trial judge erred in failing to give any direction at all to the jury concerning criminal complicity.
2.The trial judge erred in failing to direct the jury sufficiently or at all as to the evidence which was admissible, and that which was inadmissible, against the applicant.
3.The trial judge failed to put the defence case to the jury sufficiently or at all.
4.The trial judge failed to warn the jury sufficiently or at all as to the dangers in acting upon the evidence of Thath Pech.
5.The verdicts of the jury are unsafe and unsatisfactory; and in particular, a reasonable jury, properly instructed, ought to have entertained a reasonable doubt as to the applicant’s guilt.”
The grounds relating to conviction ultimately pleaded by Bun were:
“1.That having regard to all the circumstances, the verdict of the jury was unsafe and unsatisfactory.
2.The learned trial judge erred by failing to give any sufficient warning in relation to the witness Thath Pech.
3.The learned trial judge erred:
(a)in failing to put or adequately put the defence of the applicant; and
(b)in delivering a charge which was unbalanced.”
As regards sentence, only one ground need be mentioned. He as ground 2 and Bun as ground 3 pleaded that the judge erred –
“(a)in fixing a non-parole period which was only nine months shorter than the head sentence;
(b)in failing to give reasons for fixing a non-parole period which was only nine months shorter than the head sentence.”
It is now necessary to set out in summary form the evidence given at the applicants’ trial. For this purpose the Summary of Facts supplied to the Court has largely been utilised, there having been no challenge to its accuracy.
On 6 June 1997 two brown paper parcels were selected for examination by Customs in Sydney, at the Australian Customs Mail Centre. White powder was located inside glass jars in the parcels, which presumptively tested positive for heroin. The powder was later identified as heroin, of about 71% purity. In total, the white powder amounted to 309g. of white powder, making approximately 219g. of pure heroin.
The parcels had been sent from Cambodia, and were destined for delivery in Melbourne. Writing on the parcels indicated that they were for delivery to a “Mr Kho, 77 Jesson Crescent Dandenong 7175”. As the place of delivery was intended to be in Melbourne, the parcels, with the powder, were conveyed to Melbourne, to the headquarters of the Australian Federal Police.
Samples of the powder were removed and prepared for forensic analysis. Further samples were taken which were to be re-packed for the purposes of a controlled delivery. The amounts involved in the controlled delivery packages were designed to exceed the description “trafficable amount” as used in the Customs Act 1901 (C’th.). Further, electronic devices were installed in the controlled delivery packages to allow for the interception of sounds, as well as revealing whether or not the parcels might be tampered with.
Following their final preparation, the parcels were delivered by Federal Agent Petty, posing as a member of Australian Post, to 77 Jesson Crescent, Dandenong, at 3.15 p.m. on 11 June 1997. At that address Federal Agent Petty delivered the package to a female who described herself as “Mrs Kho”, and signed for the parcels. Federal Agent Petty then left the premises. The female was later identified as Thath Pech, the de-facto partner of Kho Iv.
At the time that the parcels were delivered, the premises at 77 Jesson Crescent Dandenong were under surveillance by members of the Australian Federal Police. That surveillance was maintained and various observations of Bun, He, Iv and Thath Pech took place.
The surveillance evidence revealed that Bun and He were inside the premises at 77 Jesson Crescent at the time of delivery of the packages. Iv was not then present, but arrived by car within 15 – 20 minutes of the delivery taking place. Between the time of the delivery and the arrival of Iv, Bun and He, and also Thath Pech, were observed to be outside the house.
After the arrival of Iv, all three men went inside the house, and emerged a few minutes later, then getting into a motor vehicle driven by Iv. The three men travelled to another address in Dandenong at 5 Benga Avenue. Thath Pech’s sister was living there. At that address all three alighted from the motor vehicle. He and Iv went inside those premises. Bun remained outside for two or three minutes, watching all passing vehicles and pedestrians in the vicinity. He appeared nervous. Then he too went inside. A short time later Iv was seen to emerge from the house and go to the motor vehicle. He took a white plastic bag from the car and then went into the back yard of the premises. All three men were again seen later near to the rear of the house, milling around between the shed and the car. A few minutes later, upon attempting to leave the premises (without the bag) in the same motor vehicle, all three men were arrested by members of the Australian Federal Police.
Searches were conducted of the two houses. At 77 Jesson Crescent police located pieces of torn brown wrapping paper in a rubbish bin at the rear of the premises. That wrapping paper was identified as the same paper that had been used to construct the controlled delivery packages by members of the police. Within the paper, wires (relating to the electronic devices) were visible.
At 5 Benga Avenue, police located the three glass jars that formed the controlled delivery sample prepared by the police. The jars were still contained within newspaper wrappings. The parcels were located behind a refrigerator in a shed at the rear of 5 Benga Avenue.
At the conclusion of the search, all three men were arrested and conveyed to the Dandenong Police Station. All were interviewed by police.
Further investigations revealed that on 8 June 1997 Bun and He had travelled from Sydney to Melbourne by air on a one-way ticket, which was booked and paid for on the day of travel. He used a false name. On the evening of 8 June 1997, Bun and He checked in to a local Melbourne motel. On the following night they stayed with a man called Sambath Bou, and on the third night they stayed at the house of Iv, being present (as mentioned) when the delivery took place at 3.15 p.m. the following afternoon.
A taped record-of-interview was conducted with Bun on 11 June 1997. Essentially Bun said he had travelled to Melbourne with He by bus. (It was not disputed at the trial that this was a false account.) Bun denied knowing of any delivery of a parcel at Jesson Crescent, saying that he was asleep at those premises. He did agree that he left those premises on two occasions. The first was to buy a drink at a shop and the second was to buy a small notebook. He said he had walked to the shop to do these things. He denied ever seeing Iv carrying anything. Shown the cylinders the subject of the controlled delivery he denied ever having seen them.
Thath Pech was called as a witness by the Crown. It was common ground that the police had initially treated her as a suspect and that she later assumed the role of prospective Crown witness. A Basha enquiry was conducted during the trial with respect to her evidence. It emerged at the trial that she had made a number of statements. Indeed, one of the defence counsel asserted that, taking into account police interviews, sworn evidence and discussions with lawyers either for the Crown or the defence, some eight accounts were involved. In the first, made on 18 June 1997, she acknowledged that she was Iv’s de facto wife and that she had lived with him for about ten years. She acknowledged signing for two packages “for Mr Kho” on 11 June. At that time she said two men were visiting her from Sydney. She only knew one of these men, “Pen”. She admitted that after the delivery Iv came home. She said she did not hear anything about the packages, nor did she see anyone open them. She last saw them when she had left them on the kitchen table. The police later came and she did not know what happened to the packages. Pen and the other man had arrived the previous day. She made a second statement on 1 August indicating that what she had said in her previous statement was “not all completely true”. She said that she had been told by Iv that if she didn’t incriminate Bun or He she would be assisted. She had not received any money. When she had made her previous statement she was frightened that Bun, He or an associate might harm her or her family. She had received mysterious telephone calls. She again acknowledged that Bun and He had arrived at her house on 10 June. Referring to the controlled delivery, she said she brought the two packages into the house where Bun and He told her to put them in the rubbish bin. She later saw Bun get a kitchen knife and take the packages out of the bin and cut them open. He then put the brown paper wrappings in the bin and suggested she burn them. He asked her to ring Iv and tell him the packages had arrived. She did this and he came straight home. On arrival he asked what was in the package. She did not hear any response but Iv told her later that she should not have signed for it. She said Iv left the house later with Bun and He and that she thought they took the packages with them.
In her evidence at the trial she said that at the time of the delivery Iv was at her sister’s. She was with the two men who had come from Sydney. She signed for the packages. She said that when the two men saw the packets “they” told her to put them in the kitchen. She said it was Bun who spoke, but they were close to each other. They later left to go to the milk bar. They asked her to ring Iv and she did so. He was to come home and he later arrived there. She did not notice where the packages were at this time. Extensive cross-examination occurred of Thath Pech, much of it relating to her previous statements. She admitted visiting Iv’s solicitor and her partiality, in giving evidence for Iv.
We here interpolate that Iv participated in two records-of-interview with the police and later gave sworn evidence at the committal proceeding. Essentially, while admitting he handled the contents of the package and hid them, he denied any knowledge as to the contents of the packages or the contents of the containers that came out therefrom. He allowed only some suspicion in his mind. His out-of-court statements were, of course, not admissible against the applicants.
At their trial, the applicants stood mute, as did Iv. Evidence which Iv had given at the committal proceeding was, however, before the jury. Neither applicant called any witness as part of his defence.
Accomplice warning
In considering the applications for leave to appeal against conviction, we take first the respective applicants’ grounds asserting failure on the part of the trial judge to give any sufficient warning in relation to the dangers of acting upon the evidence of Thath Pech, namely, ground 4 in the case of He and ground 2 in that of Bun.
At the close of the prosecution case, counsel for Bun sought a “Faure”[1] direction from the judge concerning the evidence of Thath Pech on the basis that she was a potentially unreliable witness. Counsel for He supported the application. In the course of his submissions in support of the application counsel for Bun did say that the witness had been thought, in the first instance, to constitute an accomplice and that it was open to the jury to take the view that her involvement was greater than she represented to them. However, towards the end of the discussion of the application, in response to an indication by counsel for Iv that he would oppose any attempt by counsel for Bun or He to invite the jury to consider Thath Pech as an accomplice, counsel for Bun made it crystal clear that he had no intention of inviting the jury to regard her as an accomplice. Counsel for He did not expressly mention the question whether Thath Pech was an accomplice, though he in substance adopted and supplemented the submissions for Bun. He did not seek to disassociate himself from Bun’s counsel’s disavowal of any suggestion that Thath Pech was an accomplice, even though Iv’s counsel’s remarks had referred to him as well as to Bun’s counsel. In our view, Mr. Priest, appearing for He before us, was realistic in saying that counsel below probably accepted Bun’s position and in being content that this Court should act on the view that an accomplice direction was not sought on behalf of Pen any more than on behalf of Bun.
[1]D.P.P. v. Faure [1993] 2 V.R. 497.
Counsel for Iv opposed the applications for a Faure direction. The prosecutor, describing the question whether the direction sought should be given as a “nice” one, made ambivalent comments and concluded by saying that it was a matter for his Honour, though the judge, who had the benefit of hearing and seeing counsel, took him to oppose the application. His Honour ruled that he would not give a warning that Thath Pech was a potentially unreliable witness, being of the view that the grounds for such a warning had not been established. He did, however, state that he would invite the jury to take into account, first, that Thath Pech initially, and particularly when interviewed by the police, believed that she was a suspect; secondly, that she said in evidence that she saw it as her role to help Iv and to give evidence against the two applicants; and, thirdly, that she had a long-standing and continuing relationship with Iv involving substantial mutual dependency.
In the course of his charge his Honour did point out those three matters as, in substance, matters which the jury were to take into account when considering the reliability and truthfulness of her evidence. Although in doing that his Honour used words such as “must” and “should”, his observations occur in the part of the charge which he had introduced by stating that he turned to remind the jury of the evidence, in the course of which he more than once indicated that he was making comments. Nor did his Honour speak of these observations as a warning or direction. Mr. Priest’s submission may therefore be accepted that they were not such and did not have the authority of the judge’s office.
Counsel for both applicants submitted that the circumstances demanded a warning about the dangers of acting on the evidence of Thath Pech in the absence of corroboration (as we shall for convenience continue to call confirming or supporting evidence). Indeed, they submitted, although only a Faure direction was sought, it was plain that an accomplice warning should have been given. Although Mr. Priest said that all below had been “on the wrong track” in considering Faure, he did submit in the alternative that, if he failed in relation to an accomplice warning, at least a full Faure direction should have been given. Mr. Tehan for Bun in his oral submissions, as opposed to his written outline, distinctly refrained from making such an alternative submission.
If Thath Pech was an accomplice[2], his Honour was required, as a matter of law[3], to give the jury an accomplice warning. That was so even though such a warning had not been sought and indeed had been disavowed for Bun at least.[4]
[2]To anticipate the next paragraph, this is not strictly accurate: there is an alternative condition, namely, if it was open to the jury, acting reasonably, to find her to have been an accomplice.
[3]See, for example, Davies v. D.P.P. [1954] A.C. 378 at 395-399; Tripodi v. The Queen (1961) 104 C.L.R. 1 at 9; and R. v. Miletic [1997] 1 V.R. 593 at 605.
[4]See, for example, R. v. Malouf (1918) 18 S.R.(N.S.W.) 142; cf. R. v. Cox [1986] 2 Qd.R. 55 at 66 per Thomas, J. (dissenting). Compare generally BRS v. The Queen (1997) 191 C.L.R. 275 especially at 306; and R. v. Stokes and Difford (1990) 51 A.Crim.R. 25 at 32 and cases there cited.
The question, then, is whether Thath Pech was an accomplice. By whom, and how, it is to be decided whether a witness was an accomplice was authoritatively stated by Lord Simonds L.C., with the concurrence of the other members of the House of Lords, in Davies v. D.P.P.[5] in a passage which has been treated as authoritative in this State and elsewhere in Australia. Speaking with reference to the primary – and, here, the relevant - meaning of the term “accomplice” as a participant in the actual crime charged whether as principal, procurer or aider and abettor, his Lordship said:
“In many or most cases this question answers itself, or, to be more exact, is answered by the witness in question himself, by confessing to participation, by pleading guilty to it, or by being convicted of it. But it is indisputable that there are witnesses outside these straightforward categories, in respect of whom the answer has to be sought elsewhere. The witnesses concerned may never have confessed, or may never have been arraigned or put on trial, in respect of the crime involved. Such cases fall into two classes. In the first, the judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. ... But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a ‘participant.’ In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.”
It is unnecessary to refer to the numerous Australian decisions, given both before and after Davies v. D.P.P., in which it has been held that the question whether a witness was an accomplice or not is to be decided by a jury. The jury must be affirmatively satisfied on the balance of probabilities: R. v. Turner and Davison[6]; R. v. Cox; and R. v. Schioparlan and Georgescu[7]. Here, the question was not answered by the witness herself, to adapt his Lordship’s expression, and thus the issue on appeal becomes whether there was or was not evidence on which a reasonable jury could have found that Thath Pech was a participant in the crimes with which the applicants were charged. If so, his Honour was required to give an accomplice warning. As appears from the passage quoted from Davies v. D.P.P., such a warning would be conditional or proleptic, for it could not be known whether the jury would find the witness to have been an accomplice.
[5]At 401-402.
[6](1985) 17 A.Crim.R. 370.
[7](1991) 54 A.Crim.R. 294 at 299-300.
In our opinion, there was evidence on which a reasonable jury could have found on the balance of probabilities that Thath Pech was an accomplice, in the sense of a participant as a principal, in the crimes charged. The evidence showed the following facts amongst others. She lived at the address to which the parcels containing the heroin were directed; she was in a long-term relationship with the addressee of the parcels, Iv; she signed for the parcels and placed them on the kitchen table; she summoned Iv home by telephone after the parcels arrived; she was observed outside the house at Jesson Crescent before the return of Iv; it was to premises occupied by her sister at 5 Benga Avenue that the parcels were transported in a car containing Iv; and it was there that Iv hid them. Each of those matters was equivocal in that it was capable of an innocent explanation from the point of view of Thath Pech. But, in addition Thath Pech initially thought that she was a suspect, as is suggested by the record of her interview on 18 June 1997, in which she went out of her way to distance herself from any illegal activity, and as she indeed agreed in cross-examination. The jury were, we think, entitled to use that fact to conclude that the matters mentioned earlier were not to be explained innocently. The jury were of course not bound to accept her evidence that Bun in the presence of He gave her instructions about the parcels and about telephoning Iv.
These grounds, so far as they relate to the failure to give an accomplice warning, therefore, succeed; and there must be a new trial unless this Court should be of opinion that no substantial miscarriage of justice has actually occurred, so that the proviso to s.568(1) of the Crimes Act 1958 can be applied: Davies v. D.P.P.[8]. There is a qualification to the statement we have just made. This is that, if He’s ground 5 (the so-called unsafe and unsatisfactory ground) succeeds, he will be entitled to the entry of a judgment and verdict of acquittal. The qualification does not apply in the case of Bun because his unsafe and unsatisfactory ground (ground 1) was put simply as deriving from and bringing together his other grounds, each of which, if successful, would lead only to a re-trial. We defer consideration of He’s fifth ground and return to the question of the proviso. In R. v. Teitler[9], the majority of the Full Court laid it down that, where a warning about the evidence of an accomplice ought as a matter of law to have been given, but was not given, there was a miscarriage of justice and that the proviso should not be applied “unless there was, apart from the evidence of the accomplice, substantial evidence implicating the applicant and upon which the jury could properly have convicted the applicant even if they had disregarded the evidence of the accomplice”. That statement has been applied since[10]. Essentially for the reasons given below in considering He’s fifth ground but with appropriate references to Bun also, we have come to the conclusion, albeit reluctantly in view of the conduct of the applicants’ cases below, that the jury could not properly have convicted either applicant if they disregarded the evidence of Thath Pech.
[8]At 399. At the time of that decision and in contrast to the position in Victoria, a re-trial was not possible in England.
[9][1959] V.R. 321 at 330. See also at 332.
[10]In, for example, R. v. Fuhrer [1961] V.R. 500 and R. v. Anthony [1962] V.R. 440 at 444.
He’s “unsafe and unsatisfactory” ground
This ground invokes the first limb of s.568(1), inviting this Court to set aside the verdicts against He on the ground that they are “unreasonable or cannot be supported having regard to the evidence”. The question is one of fact which this Court must decide by making its own independent assessment of the evidence, the ultimate question being always whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v. The Queen[11].
[11](1994) 181 C.L.R. 487 at 492 and 494-495.
For He it was pointed out that the prosecution had not relied on the fact that He had travelled to Melbourne under a false name as demonstrating a consciousness of guilt, and that there were no admissions attributed to He. It was said that there was no evidence that the applicant even handled, or directly had control over, the packages containing the heroin and that indeed, on one view of the evidence, his knowledge (if any) of the package could only be inferred – if at all – from his presence at 77 Jesson Street and 5 Benga Avenue. It was submitted that the whole of the case for the prosecution was founded on presence. Even had the jury been properly instructed about the acts and declarations of others, presence would not of itself have been sufficient to prove the case against him. A properly instructed jury ought to have entertained a reasonable doubt as to his guilt on both counts.
Having reviewed and assessed the evidence for ourselves we think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that He was guilty on each count. If the evidence of Thath Pech were put aside, we do not think that it would have been open to the jury to be satisfied beyond reasonable doubt that He was guilty on either count. The undisputed travel and living arrangements of He in the company of Bun over a period of a few days, his presence in the company of He at the time of delivery of the packages containing heroin at the house to which they were consigned from Cambodia, the unwrapping of the packages before he left that house by car, his coming out of that house shortly thereafter, walking to a nearby milk bar and then returning to the house, his travelling with Bun to 5 Benga Avenue in a car transporting the heroin and his presence in the backyard of those premises when the packages were hidden, in combination, excite a high degree of suspicion. But each of those matters is equivocal, in that it is capable of an innocent explanation,[12] and, the case of the prosecution being a circumstantial one, it was for it to exclude all innocent hypotheses beyond reasonable doubt. Essentially the evidence without that of Thath Pech reveals the unexplained presence of He in proximity to the heroin delivered on 11 June 1997 for the whole time it was at, and in transit between, two different premises, and, highly suspicious though that was, it would not have been sufficient to sustain the verdicts on appeal. Something more, to tie He to the heroin and to rule out coincidence or accident, is required. In our view, that is supplied by the evidence of Thath Pech, particularly her evidence that, with He close by, Bun told her to put the packages in the kitchen and asked her to ring Iv to come home, seemingly with some urgency. In the circumstances which we have already outlined it was, we think, well open to the jury to reject beyond reasonable doubt the hypothesis that in giving the directions he gave Bun was acting alone and not in concert with He.
[12]That might not have been so of the last-mentioned matter if the evidence of observations had revealed movements of He close to Iv when Iv was in the shed hiding the packages.
It is true that the jury might have found Thath Pech to have been an accomplice. But, whilst they should have been warned that in that eventuality it was dangerous to act on her evidence without corroboration (and in particular without evidence implicating He), by the same token they should have been directed that it was competent for them to do so if, after taking the warning into account, they thought fit to do so.
It is true, too, that Thath Pech was open to criticism as a witness on the ground of inconsistencies between the various versions of events that she had given and asserted ignorance, lack of understanding and the like. But no evidence contradicting her was tendered by He or Bun nor did the cross-examination of her on behalf of either of them seek to contradict her on her evidence as to Bun’s giving her directions with He close by. This, then, is not a case where those inconsistencies or discrepancies and other matters of criticism lead us to conclude that there is a significant possibility that an innocent person has been convicted[13]. Rather, those matters were, in this case, for assessment by the duly constituted tribunal of fact, the jury.
[13]Cf. M v. The Queen at 494.
We conclude, therefore, when the totality of the evidence is examined that it was open to the jury to be satisfied beyond reasonable doubt that He and Bun knew or were aware, or at the least believed, that the packages contained heroin and that He and Bun, acting jointly, had the means, and the intention, of exercising dominion or control, to the exclusion of others, over the heroin which was in fact delivered and also that by their attendance at 77 Jesson Crescent, Dandenong, they were attempting in concert to obtain dominion or control over the total amount of heroin which they knew or were aware, or at the least believed, had been despatched from Cambodia addressed to that address.
Other grounds
It is unnecessary to discuss closely any of the other grounds of the applicants as they could not, if successful, lead to acquittal. But, since a new trial must be directed, it may be of assistance if we make some brief comments on points raised by two of the grounds that are likely to arise at the new trial. The other grounds involve criticism of the form and terms of the particular charge, which are not likely to arise again. As to them we would only say that the charge should not be treated as a model in any new trial.
At least with an accomplice warning, a Faure direction will not be required. Nevertheless, we think it very desirable that in the charge at the new trial the judge should invite the jury to take into account the same three considerations bearing upon Thath Pech’s evidence as the first trial judge did, though the fact that she initially believed herself to be a suspect will presumably have already been mentioned in connection with whether she was an accomplice. In expressing that view, and indeed in all our observations directed to any re-trial, we assume that the evidence at the second trial will fall out substantially as it did at the first trial. If that assumption is falsified in a relevant respect, our observations will have less or no appropriateness. In that regard we note that any evidence given by Thath Pech will be given in the changed circumstance that Iv has been acquitted.
Finally, without meaning to imply that we would, if necessary, have upheld He’s first ground of appeal, we consider it at least desirable, if the Crown case remains one of concert, that the jury be given a direction as to what constitutes acting in concert. The customary direction in Victoria is that in R. v. Jensen & Ward[14]. In the course of submissions on the first ground his Honour’s directions as to possession were criticised. Again without wishing to be taken as endorsing that criticism, we record that, besides Saad v. The Queen[15], which his Honour evidently used, assistance on the concept will also be found in Pearce & Carter v. D.P.P. (No.2)[16].
[14][1980] V.R. 194 at 201, as to which note Osland v. The Queen (1998) 197 C.L.R. 316 at 341ff, especially para.72.
[15](1987) 61 A.L.J.R. 243 at 244.
[16](1992) 59 A.Crim.R. 182 at 183.
Sentence
The resolution of the applications touching conviction makes it unnecessary to dispose of those touching sentence. However, we think we should make some observations on an aspect of the sentences imposed. It will be recalled that in the case of both applicants the period between the total effective sentences of seven years and four months’ imprisonment and the non-parole periods fixed was but nine months. We can find no warrant for such arrangements of sentence. Such unusually short periods may well be appropriate in some cases, for example, where circumstances reveal offenders to be poor prospects for rehabilitation. In the instant case the learned judge gave no explanation for their selection in his reasons for sentence. We are unable to discern any circumstance which might explain them. It
will be recalled that the applicants had no prior convictions and had each attained the age of 40 years. As to the matter of rehabilitation, his Honour noted that it had been submitted on behalf of Bun that he had good prospects thereof but made no finding on this submission. He did not address the matter of rehabilitation in relation to He.
Conclusion
For the reasons given earlier both applications for leave to appeal against conviction succeed. Both convictions of each applicant must be quashed, the sentences passed thereon set aside and a new trial directed to be had.
BUCHANAN, J.A.:
I agree that the applications for leave to appeal against conviction should be granted for the reasons stated by the Chief Justice and Batt, J.A.
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