R v Lam

[2002] NSWCCA 377

Reported Decision: (2002) 135 A Crim R 302

New South Wales

Court of Criminal Appeal

CITATION:

R v LAM [2002] NSWCCA 377

FILE NUMBER(S):

CCA 60194 OF 2001

HEARING DATE(S):

9 September 2002

JUDGMENT DATE:

7 November 2002

PARTIES :

REGINA

v

DUNCAN SAK CHEUNG LAM

JUDGMENT OF:

Levine J at 1; Hidden J at 89; Howie J at 90

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0711
LOWER COURT JUDICIAL OFFICER :	Holt DCJ

COUNSEL :	P Byrne SC (Appellant) P J P Power (Crown)
SOLICITORS:	G K Walsh (Appellant) S E O'Connor (Crown)
CATCHWORDS:	Criminal Law and Procedure - conspiracy to supply large commercial quantity of heroin - conviction appeal only - evidence of "possession" (of set of keys) - admissibility in circumstances - directions as to possession - search warrants - validity - intercepted telephone calls as basis therefor - "expert" evidence on coded language
LEGISLATION CITED:	Evidence Act 1995 Search Warrants Act 1985 Telecommunications (Interception) Act 1979 (Cth)
CASES CITED:	Attorney-General for New South Wales v Stewart (1994) 34 NSWLR 677) Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162 Flanagan v Commissioner of the AFP (1996) 60 FCR 149 Love v Attorney-General for NSW (1990) 169 CLR 307 Ousley v R (1997) 148 ALR 510 Regina v Al Kahair (unreported, NSWCCA, 20 June 1994) Regina v David and Gugea (unreported, NSWCCA, 10 October 1995) Regina v Huynh (unreported, NSWCCA, 13 May 1996) Regina v Khair & Or (unreported, NSWCCA, 20 June 1994) Regina v Markuleski (2001) 52 NSWLR 82 Regina v Van Phanh Huynh (unreported, NSWCCA, 13 May 1996) Vincent v Randall & Anor [1999] NSWSC 833
DECISION:	Appeal dismissed

- 35 -IN THE COURT OF

60194 of 2001

LEVINE J
HIDDEN J
HOWIE J

7 NOVEMBER 2002

REGINA v DUNCAN SAK CHEUNG LAM

Judgment

1 LEVINE J: The appellant was charged for that between 24 January 1999 and 9 February 1999, at Sydney in the State of New South Wales, he did conspire with Ting Fong So (also known as Man Kwong Lam, also known as Peter So), Ting Man Ngai and Kim Loan Nguyen, to supply a prohibited drug, namely heroin, being not less than the commercial quantity applicable to that drug, namely a large commercial quantity.

2 The appellant pleaded not guilty and on 7 March 2001 following a trial before his Honour Judge Holt QC and a jury of twelve was found guilty. This was the second trial of the appellant, the first having terminated upon the jury being unable to agree. Upon conviction the appellant was sentenced to 16 years imprisonment with a non-parole period of 12 years commencing on 8 February 1999. The appellant does not seek leave to appeal against that sentence.

3 The better to understand the import of the grounds of appeal, it is desirable to set out the course of evidence.

THE CROWN CASE

4 The appellant, together with three others, Peter So (hereafter So), Ting Ngai (Ngai) and Kim Nguyen (Kim) conspired to supply a large commercial quantity of heroin between 24 January 1999 and 9 February 1999. The appellant, according to the Crown, was the principal of the four conspirators; he had resided in Australia since 1976. Ngai and So arrived from Hong Kong on 9 August 1998.

5 The appellant and Kim had been in a relationship since mid 1998. Her role was to identify to the appellant prospective buyers; he then directed arrangements for the supply which involved delivery by Ngai to various vehicles, with So nearby. The heroin was stored in a green Holden Gemini NSZ-972 garaged at 2 Tenterfield St, North Strathfield. The appellant, Ngai and So possessed keys giving them all access to both these premises and the vehicle. Those keys attained prominence on the hearing of the appeal.

6 Surveillance evidence, tapes of mobile phone intercepts, tapes of listening devices, videotapes and photographs of certain events was adduced in support of the Crown case. Evidence was found during the police search pursuant to warrant of premises occupied by and vehicles owned or driven by the appellant, Kim, So and Ngai. One such warrant was the subject of attention during the appeal.

7 Ngai rented the 2 Tenterfield St premises in September 1998. He was living at 50 Hampton St, Lakemba. Police on surveillance duties first became aware of the Tenterfield St premises on 29 January 1999, when a car driven by Ngai was seen there. During this time So occupied a room in a house shared with others at 292 king Georges Rd, Roselands.

8 The appellant rented a unit at 510, 2-10 Mount St, North Sydney through a third party from 28 November 1998. The appellant possessed a security “swipe card” to access the Mount St building (exhibit GG). This also became significant. Police surveillance of the Mount St unit began on 28 November 1998. Officers gave evidence of surveillance of the appellant there with Kim and So, and of surveillance of the appellant, So, and Ngai at other locations, and of So and Ngai at the 2 Tenterfield St premises.

9 The National Crime Authority (NCA) in Sydney obtained warrants to lawfully intercept telephone services used by Kim, So and the appellant and a listening device was placed inside the Mount St unit. Transcripts of the phone calls were tendered, as was a transcript of the conversation monitored and recorded in the Mount St unit. The appellant admitted that the female voice on all the tapes from Kim’s mobile phone was that of Kim, and that it was his voice on 24 of the 35 calls. Many of the intercepted telephone conversations between Kim and the appellant (the “Rig” tapes) and So and the appellant (the “Ferg” tapes) which were translated from Cantonese were in code to mask the nature of the arrangements being discussed. Retired Detective Inspector Drury gave evidence of how drug syndicates communicate in code, identifying such instances in the taped conversations such as “sow the rice”, “give a good one to her or him” and “the black kind”. His evidence was the subject of attention in the appeal. The appellant used a mobile phone to call Kim, although neither he nor Kim was listed as the subscriber to that service. The appellant called the mobile phones of Kim and So from a number of different public telephones, despite the availability of a landline and a mobile phone, so as to avoid detection. Surveillance evidence showed several instances of physical contact between the appellant and the three others taking place in the relevant period, and establishing that arrangements made during the phone calls were in fact carried out in the manner, time and place as directed by the appellant.

10 The contents of the intercepted telephone calls and one listening device conversation, together with the surveillance evidence established that the following events took place as evidence of the appellant’s involvement in the conspiracy.

11 On 24 December 1998, the appellant went with So to visit Kim in Melbourne. He and So stayed at Kim’s for three of four days. He met one “Fatty Bobby” there to whom he later directed So to supply heroin. On 2 January 1999, the appellant picked up Kim at Sydney airport in her vehicle VHJ-110 and was later seen in company with So, Ngai and others at Pinocchio’s Chinese Seafood Restaurant at St Leonards. On 6 January 1999, the appellant, Ngai, So and others boarded a chartered fishing boat in Sydney.

12 On 7 January 1999, Ngai was seen carrying a white plastic bag towards the house he occupied at 50 Hampton St, Lakemba. Later, So and Ngai were seen entering and exiting these premises. The appellant admitted that he was also at Ngai’s premises that day.

13 On 10 January 1999, the appellant was seen driving Kim’s car at the Qantas Domestic terminal in company with So and others. So drove off in Kim’s car, while the appellant boarded a flight to Brisbane.

14 On 19 January 1999, at about 10.40pm, So was seen in the vehicle VHJ-110, parked underneath the Sydney Harbour Bridge in Hickson Road, Dawes Point. At about 10.26pm the appellant was seen close by meeting with another male.

15 On 25 January 1999, in a coded telephone conversation at 8.15pm (“Ferg” tape) the appellant directed So to deliver “one person” to someone, that is to supply one amount of heroin, to a red and white Nissan at 10pm that night at Homebush West near Flemington Railway Station. The appellant supplied the registration number as being RZK-149. He indicated that the last two numbers needed adjustment. The appellant admitted that he instructed So to meet someone at “Little Fay”, which meant Flemington, at 10pm that night and admitted to referring to a red and white Nissan and to giving So the number RZK-149. On 26 January 1999 the appellant told Kim in a coded telephone conversation (“Rig” tape) that the job (or supply of heroin) the previous night was successful.

16 On 27 January 1999, in a telephone call at 7.11pm the appellant told So that the person he met the other night wanted to see him again, that is, to supply heroin to vehicle RZK-194 that night. The appellant instructed So to meet someone at 9.30, to complete “the same” arrangement. The appellant agreed under cross-examination that his words referred to the same place and the same person, and “the same whatever was being dealt with the other night”. At about 9.15pm that night, police sighted So in his car in the Homebush West area. Ngai was sighted at the same time in the same area. A red and silver Nissan RZK-194 was seen parked in the area, in the Crescent near Hornsby St, at the same time. Police were unable to maintain constant surveillance of the Nissan and So and Ngai. No transaction seems to have occurred, as evidenced by observations and a direct reference to a phone call later between the appellant and So, at 9.41pm when So told the appellant that he had turned up at the place, seen the car (RZK-194) specified, but that it had driven away. Just after 10pm that night, So came to the Mount St unit and discussed with the appellant the reasons for the meeting not taking place. The appellant, who identified his voice on the tape, agreed he said “she/he was scared”. In a phone call at 11.14 that night, the appellant agreed that he told Kim that So had “just done a job” and told her about the failed transaction at 9.30 with So and some other person.

17 In the earlier call to So at 9.41pm the appellant also made an arrangement for So to have a meeting at the casino at 3pm the next day. In the conversation recorded later in the Mount St unit, reference was made to giving a “good one…the black kind” to her/him, and to “throw” some vegetables “in there” as “that will look better” (the heroin later seized by police in the car on 8 February was found in a bag containing vegetables). The appellant said that Kim had asked him to make the call (at 9.41pm) to So about the meeting. However, in a phone call to Kim one minute later, no reference was made to the earlier call (in fact, Kim said that she had tried to call the appellant “three times”), or to the meeting she had supposedly asked about earlier. Detective Baker gave evidence that at about 3pm on 28 January 1999 with Investigator Michael Birley he went to the casino. He observed a meeting on video monitors at about 4.11pm between So and an unknown Asian male and an unknown Asian female in the entrance foyer of the casino hotel. All three entered So’s car (vehicle OQX-850) which was being driven by Ngai. They drove around the casino before returning to the entrance. The female and male left the car and entered the hotel, with the male now carrying a black, backpack style bag. In a phone call to Kim at 9.25 that night, from a public phone in Mount St, the appellant refers to having “had dinner” which was “beautiful”, that is, the drug deal that day had been successful.

18 Between 26-29 January, the appellant, in Sydney, had a number of conversations with Kim, in Melbourne. They entered into an agreement to supply an associate of Kim, known as “Fatty Bobby”, with a piece of something (heroin), at 11am on Friday 29 January 1999. in a phone call on 27 January at 12.46pm, the appellant and Kim discussed supplying “Fatty” with heroin for a cheaper price (in coded terms) to which the appellant finally agreed. In a phone call with Kim later that day at 9.42pm, she said “when you bring Fatty dinner…give him [Fatty] good one”. The appellant had discussed this transaction with So during the taped conversation in the unit on the evening of 27 January. On 28 January in a phone call at 12.17pm there is reference to an arrangement the following day at 11am. On the 28th, in a phone conversation between Kim and “Fatty Bobby” at about 4.04pm, “Fatty Bobby” told Kim the car to be used would be a White Holden Barina SYX-642, at the time of 11am. About two minutes later, Kim passed that information on to the appellant: that is, the registration number SYX-642, of a white Holden “Berlina” (Barina). It was in a white Holden Barina SYX-642, driven by Phu, that police later found, on 8 February, a quantity of heroin in a bag with some vegetables. As arranged in the phone calls between the appellant and Kim from 27-28 January, a delivery of heroin to "Fatty Bobby" occurred on 29 January 1999. At about 10.30 am Ngai was observed entering and then shortly thereafter leaving 2 Tenterfield St, North Strathfield. He then drove to the same area in Homebush West where police had previously observed him. In the same area at this time was So, in parked vehicle OQX-850, as were two Asian males in a white Holden Barina SYX-642. One of these men was later identified as the offender Anthony Phu, the other was identified by the appellant as "Fatty Bobby". At about 11am Ngai walked to a vehicle SYX-642, then walked away from it carrying a white bag. The vehicle was later seen in Bondi to contain a white plastic bag. At 11.06, "Fatty Bobby" rang, Kim indicating that the transaction had been successful.

19 On 29 January 1999 the appellant directed So in a phone call at 1.05pm to deliver something (heroin) to a vehicle AGK-09B at about 4pm at Burwood (“little b") that day, and to "go alone". He quoted the numbers and letter 09B, which had been mentioned by the appellant during previous conversations with So and refers to the vehicle AGK-09B. At 2.47pm, the appellant phoned So and cancelled the arrangement as he thought he was being watched: “A while ago, when I went out, it looked like there's somebody nearby". To complete this transaction, on 30 January 1999 the appellant arranged (during a conversation commencing at about 12.07pm) for So to deliver heroin to the vehicle AGK-09B at 5pm that day. At about 4.20pm, Ngai entered the Tenterfield St premises, leaving some 25 minutes later and driving to a car park in Strathfield West. An unknown Asian male and So were observed in the same area of Homebush West in the vehicle OQB-850. Ngai was observed taking a white plastic bag from the front passenger side area of the vehicle he was driving and placing it in the front passenger floor area of a silver Honda Civic AGK-09B. Ngai, and then a short time later So, left the area. Shortly after, the unknown Asia male, previously seen with So, entered the silver Honda Civic AGK-09B and left the area. In a phone call on 30 January 1999 at about 9.38pm, the appellant told So to deliver a quantity of heroin at 11pm that night, in the same place as the last delivery. In a phone call with So at about 6.55pm on 6 February, an arrangement was made to deliver "two persons", or two quantities of heroin, to someone at 9pm that night, mentioning "little zero nine", meaning, the vehicle with registration ending in 09B.

20 On 7 February 1999, during a conversation with the appellant commencing about 12.43pm, Kim arranged for the supply of "two bowls" (a quantity of heroin) to "Fatty Bobby”. In a conversation with So, commencing at 12.46 that day, the appellant told So that a person "from outside of Guan Dong” wanted to buy "two persons"; the appellant also used the phrase "two bunches of vegetables". The appellant also indicated the last time the person was supplied with "one". The transaction was to take place at 11 am the following day. On 8 February 1999, at about 10.29, Ngal entered 2 Tenterfield St, leaving at about 10.40am carrying what seemed to be a white plastic bag. Ngai then drove to Homebush West area. Also in the area was So, as was Phu in the white Holden Barina SYX-642. At about 11.01 Phu walked away from the Barina after checking that the front passenger door was unlocked. At about 11.05, Ngai placed a white plastic bag into the Barina through the front passenger door, and returned to his vehicle and drove away. Phu then re-entered the Barina and drove away. At around the same time, So left the area, and contact with his vehicle was lost. At about 11.09 on 8 February, the white Barina SYX-642 was stopped by NCA investigators and searched. Phu was the only occupant. A white plastic bag was found on the front passenger side floor. It contained a number of vegetables and two blocks of compressed white powder. Phu was arrested. Subsequent testing of the two blocks established that they contained heroin that weighed 1.395kg and were 72 and 75 percent pure heroin respectively. Shortly after, the vehicle driven by Ngai was stopped and he was arrested. He was in possession of five keys and a large silver key (exhibit N) which accessed the front and rear doors of 2 Tenterfield St, and the green Gemini NSZ-972 garaged there. Around the same time, a vehicle VGN-889 (Kim's car) being driven by the appellant was stopped and he was arrested. He was in possession of a security “swipe” card allowing access to the 2-10 Mount St building, and a key to unit 510 in that building. Later, a rental deposit in the name of Winton Marketing Pty Limited was located in that car.

21 On the same day, a search warrant was executed at the Mount St unit. The unit was a studio apartment with one bed partially separated from the living area. Police located men's and women's clothing and a photograph of the appellant with a child. Police found $30,000 in cash in a plastic bag underneath clothes in the washing machine. A set of 8 keys was found, of which four accessed the front and rear doors of 2 Tenterfield St, one the door and boot of the green Holden Gemini garaged there, two accessed Lockwood padlocks, (one of which secured a wire fence accessing the rear of that house) and the last opened So's car OQX-850. The issue of this warrant and the sets of keys received much attention in the appeal.

22 A search warrant was validly executed at 2 Tenterfield St. The search was videotaped. In the boot of a green Holden Gemini NSZ 972 parked in the garage were a number of blocks of compressed white powder. Subsequent testing of these established that they contained heroin between 66 and 79 percent pure and weighing approximately 14 kilograms in total. The combined quantity of heroin found in both vehicles was some fifteen times the large commercial quantity. A search warrant was validly executed at So's room at 292 King George's Rd, Roselands. Detective Sergeant Baker gave evidence that keys seized there fitted locks on the front and back doors of 2 Tenterfield St, North Strathfield. Police also found $43,900 in cash and an electronic note counter in So’s room.

THE APPELLANT’S CASE AT TRIAL

23 The appellant gave evidence. He did not dispute the finding of Peter So's fingerprints on the green Holden Gemini garaged at 2 Tenterfield St, and on other things at these premises. The appellant did not dispute the lease by Ngai of these premises. The appellant did not dispute the possession by So of an electronic money counter and the sum of over $43,900 in cash. The appellant made admissions as to the element of the offence concerning that the blocks of white powder found by police in vehicle NSZ-972 contained 15.4 kilograms of heroin.

24 The appellant gave alternate explanations for being in the company of Kim, So and Ngai and others. On the day of his arrest, the appellant was visiting his ex-wife and children. The day on the boat with So, Ngai and others, which included his son, was in fact a recreational fishing trip; the appellant and So referred to fish caught that day in an intercepted phone conversation. The appellant owned racehorses and was a gambler sufficiently successful to support himself. Kim, whom he first met at the casino, was a moneylender (in the casino) and illegal gold dealer. Because he was living with another woman, the appellant had to see Kim in secret and after she became pregnant, it was more convenient to meet at the Mount St unit than a hotel. The unit was not rented in the appellant’s name because he was unable to obtain references; the agent might check with his de facto wife. He met So through Kim, who was helping So in his money lending ventures. As Kim was Vietnamese, and did not speak Cantonese, and So, who spoke only Cantonese Chinese, had very little fluency in English, the appellant helped Kim’s dealings by passing messages between her and So via the telephone.

25 Other people were given use of the Mount St unit, including So, to whom the appellant gave a key. The appellant had no knowledge of the money found in the washing machine and the keys found there did not belong to him. The two vehicles which the appellant was seen to drive were not seen by surveillance officers in the areas where the deliveries of heroin to vehicles took place. The appellant had never been to 2 Tenterfield St.

26 It was the appellant’s position that the intercepted phone conversations did not concern heroin. If they did, the appellant was not aware of it. The appellant denied using code talk of any kind. Of the intercepted phone conversation on 25 January, he said that it was another example of where he was passing on information to So, through Kim, in the form of a registration number, make and colour of a car and the location of where a meeting was to take place. He said he believed that the person So was to meet was known to So and Kim, and that in order to borrow money from So, the man needed to go through Kim first so that she could earn a commission. The reference to "having a meal", which the Crown alleged was code for a heroin deal, was instead an example of the way in which business was usually done in Chinese culture over a meal or around meal times. The appellant denied inverting the last two numbers of the registration, saying rather that he was unsure of the correct order. He further denied that the reference to having dinner at 10pm was a reference to a successful drug deal.

27 As to the intercepted phone conversation of 27 January 1999, which the Crown alleged referred to an arrangement to supply heroin, the appellant said that he simply passed on a message from Kim to So that the man So had seen the other night wanted to see him again. He did not know, because Kim did not tell him, where the meeting was to be other than at the “same place”. He had no knowledge that it might be Flemington or that So and Ngai were in the same area.

28 As to the Crown allegation that the appellant arranged a meeting at the Casino on 28 January, the appellant said he did not make the appointment at all. So had asked him to pick up some lanolin for his friends visiting from Hong Kong who So was to meet the following day. The appellant said that he bought two dozen bottles or jars of lanolin which he gave to So when So visited him at the Mount St unit later that night. In the phone call fixing the meeting for 3pm at the Casino, the appellant said that it was not his voice, but So's. He said that if heroin was handed over at the Casino the next day, he had no knowledge of it.

29 As to the alleged drug supply on 29 January, the appellant said that the many references to making arrangements concerning “Fatty Bobby” being in Sydney on that day involved him only to the extent that he had been told that "Fatty" might be interested in buying antique Chinese bowls shown to Kim by Simon Wong. He wanted to meet with "Fatty" to discuss the bowls and have an album of photos depicting Chinese bowls returned to him; he said however that as Kim would not allow this, So would meet "Fatty" instead. He had been told that "Fatty" was interested in buying the rare "black" bowls, which the appellant was trying to arrange for him to buy, and that the reference to "veggies" related to the way the bowls were carried out of China. He believed that "Fatty" would be in Sydney anyway in connection with his involvement with Kim as a money lender.

30 As to the arrangement by telephone (and its subsequent cancellation), to supply heroin on 29 January 1999, the appellant said that this was another example of him passing on information to So from Kim about a money-lending client of Kim's. He said he was told So had quarrelled with this person over a shortage of funds in a previous loan transaction, and that he was acting as a go-between to effect a compromise. After making the arrangement, So called back to say he would not meet this person because he was troublesome and because of the earlier dispute. The appellant let Kim know this when she called, and at 2.47 the appellant called So saying, from his conversation with Kim, that So did not have to meet with the man.

GROUNDS OF APPEAL

1. The evidence relating to the finding of a set of keys (exhibit W in the trial proceedings) in a home unit associated with the appellant should not have been admitted pursuant to the provisions of s137 and s138 of the Evidence Act.

2. The directions given by the learned trial judge on the issue of the possession of the keys (exhibit W) were inadequate in that they failed to relate the issues of law to the evidence in the case.

3. The evidence given by retired Inspector Michael Drury should not have been admitted.

4. The verdict is, having regard to the evidence, unreasonable.

31 It is apparent that there had been a broad agreement between the Crown Prosecutor who appeared in the second trial and the appellant’s trial counsel who appeared in both trials that in accordance with usual practice the evidentiary rulings made by the trial judge in the first trial (who was the same judge for the second trial) should apply generally in the second trial.

Ground 1: The evidence relating to the finding of a set of keys (exhibit W in the trial proceedings) in a home unit associated with the appellant should not have been admitted, pursuant to the provisions of section 137 and section 138 of the Evidence Act 1995 .

Ground 2: The directions given by the learned trial judge on the issue of the possession of the keys (exhibit W) were inadequate in that they failed to relate the issues of law to the evidence in the case.

32 In support of these grounds of appeal a number of general propositions were asserted. Inter alia, it was submitted that:

(a) whilst accepting that at the time of his arrest the appellant was found in possession of keys to the home unit situated at 510/210 Mount Street, North Sydney (“the unit”), that the set of keys found in the unit were not in his possession;

(b) that the possession of the keys was a “crucial” part of the prosecution case and that the Crown placed strong reliance on the finding of the items in the unit.

(c) that it was never put to the jury that “if you consider it to be a reasonable possibility that the keys belonged to someone other than the appellant, the case against him effectively fails” and that the trial judge’s summing up was defective in that the issue of possession was not adequately explained to the jury.

(d) that the trial judge should have exercised his discretion to exclude the evidence pursuant to section 137 of the Evidence Act 1995, or in the alternative, the issue of possession of should have been the subject of “careful and comprehensive directions”, more complete than those given.

(e) that the search warrants were invalidly obtained because reliance was placed on intercepted telephone material obtained pursuant to warrants issues under the Telecommunications (Interception) Act 1979 (Cth)

33 It is desirable to consider the substance of the first two grounds of appeal as notified relating to “possession”, before dealing with the matter discretely concerning the validity of the search warrant in a supplementary ground of appeal, the subject of specific attention in oral argument.

34 The learned trial judge asked the appellant's counsel at the end of his summing up if any further directions were required. No re-direction was sought regarding the issue of possession. The Crown relies upon Rule 4. Further, it appears that there was no specific objection made to the search warrants in the first or second trial; again the Crown relies upon Rule 4.

35 At the time of his arrest on 8 February 1999 the appellant was found in possession of the 'swipe' card for the unit. None of the other conspirators was found in possession of such a swipe card. It was the Crown position that the unit was rented for him in November 1998 by an associate, John Lau. Others had their own accommodation. Ngai rented the premises at 2 Tenterfield Street, North Strathfield (a “safe house”), and he lived at 50 Hampton Street, Lakemba. So occupied a room in a house he shared with others at 292 King Georges Road, Roselands.

36 Surveillance evidence revealed that Lam regularly occupied the unit with his girlfriend, Kim. For example, the appellant was seen and photographed (wearing a yellow shirt) in the unit with Kim about 10.00 am on Saturday 28 November 1998. That same day at about 10.45 am a Ford Laser, VGN-889, registered in the name of Kim was seen leaving the premises driven by a man with a yellow shirt: this car had previously been seen parked in the parking bay marked 510 of that building. The appellant was also seen to be in the unit at about 9.00 am on Sunday 6 December 1998 and the same Ford Laser was again seen to be parked in the parking bay numbered 510. The -evidence pointed to the appellant occupying the unit at various times from a period dating from December 1998.

37 The Crown submitted that it would be quite misleading to suggest that an assessment of whether or not the appellant was part of the conspiracy depended upon the jury being satisfied beyond reasonable doubt that the keys in question were in the appellant's possession. The keys were but one slice, it is said, of the circumstantial “evidentiary pie”. There was a body of other far “more damaging” evidence both linking the appellant to So and Ngai and to their joint supply of heroin. The issue of the possession of the keys was but one small part of the evidence in the Crown case. In the Crown submission, the totality of the evidence was clearly capable of satisfying a jury beyond reasonable doubt that the appellant was clearly directing So and Ngai to delivery heroin on numerous occasions. One example was pointed to by the Crown of the way surveillance evidence placeD an important gloss on the telephone intercepts. Two blocks of heroin weighing in total approximately 1.4 kilos were seized by police on 8 February 1999 at 11.09 am when they arrested a man called Anthony Phu. A few minutes before, police had observed Ngai and So driving separately to Homebush West and at about 11 am, Ngai was seen to place a white plastic bag containing “vegetables” into Anthony Phu's car SYX-642 and walk away. A few minutes later Phu returned to SYX-642 and drove off. He was then arrested. These events are to be considered in light of the fact that the previous day, at 12.46 pm, the appellant had spoken to So and told him that "fellow from outside of Guangdong looks for you". The appellant asked So if he knew who he was talking about, "[t]he one who buys vegetables". So indicated he knew about whom the appellant was speaking. The appellant then told So, "He buys two persons". So asked "Oh, Little Fei" again to which appellant replied, "Yes"... "Two bunches of vegetables two bunches wanted". After that call on 7 February 1999 So was observed to visit Ngai at Lakemba. Ngai then drove to the safe house at Tenterfield Street, North Strathfield, stayed there for about five minutes and then drove back to Lakemba.

38 The Crown case relied largely upon circumstantial evidence. The jury were reminded of this and were directed as to the approach they should adopt when assessing the evidence, much of which was not eventually in dispute between the parties. In the summing up the jury were appropriately directed that the Crown relied on circumstantial evidence to establish both the existence of the conspiracy and also Lam’s involvement in it. It was also explained to the jury that not only were they required to be satisfied that there was a conspiracy, but also that the appellant participated in it. These directions were repeated.

39 The jury was given extensive and correct directions regarding the approach they should adopt when assessing the circumstantial evidence. The trial judge then summarised the five individual aspects of the evidence relied upon by the Crown to show the existence of the conspiracy, namely:

(a) the participation of Kim and So respectively in various telephone conversations with the appellant;

(b) the lease of the premises situated at 2 Tenterfield St, North Strathfield by Ngai where car registered number NSZ-972 ("the car") was garaged; These facts were not in dispute.

(c) the fact that the accused and both Ngai and So had possession of keys both to the Tenterfield property and to the car and they were in consequential possession of the heroin stored in that car. The appellant denied he had keys to the Tenterfield St property or the car.

(d) that both Ngai and So's fingerprints were on various items found at the Tenterfield Street property. So's fingerprints were found in the car. These facts also were not in dispute.

(e) the alleged possession by the appellant, Ngai and So of the heroin found in car registered number SYX-642 on 8 February 1999; and

(f) the fact that So possessed an electronic money counter and was found with $43,900 in cash. These facts also were not in dispute in the trial.

40 The trial judge then referred to other aspects of the evidence which the Crown pointed to as establishing the appellant's participation as well as, some cases, the existence of the conspiracy, namely:

(a) the appellant's association with So and Kim, at the unit from December 1998; with Kim, So and Ngai at a restaurant in Crows Nest on 2 January 1999; with Ngai and So on a fishing trip on 6 January 1999; with So and Ngai at a meeting in Lakemba on 7 January 1999. The appellant claimed that his association with the others was innocent and did not have any connection with drugs.

(b) the appellant's participation in telephone calls with Kim in which the Crown alleged the appellant arranged for the supply of heroin. The appellant stated that at no time did he speak with anybody about heroin.

(c) the appellant's participation in telephone calls with So in which the Crown alleged the appellant gave directions regarding the delivery of heroin to various purchasers. The appellant denied this allegation.

(d) the appellant's possession of keys that gave him access, along with Ngai and So, to the drugs stored in the car garaged at Tenterfield Street, North Strathfield. The appellant denied this allegation; and

(e) the appellant's alleged possession of the sum of $30,000 in the unit. The appellant denied this allegation.

41 The trial judge then outlined nine allegations made by the Crown which were relied upon as establishing not only the existence of the conspiracy but also the participation of the appellant.

42 The Crown usefully annexed to its submissions a “Crown Summary of Some Significant Surveillance and Interception Evidence”, much of which has hitherto been the subject of reference.

43 The first conversation specifically relied upon by the Crown occurred on 25 January 1999 between the appellant and So at 8.17pm. It was the Crown case that the appellant was instructing So to deliver heroin. The following day the appellant spoke to Kim; the Crown submitted that this latter conversation was referrable to the events of the previous evening and the appellant said that the delivery had finished "beautifully".

44 The next conversations relied upon were those occurring on 27 January 1999 at 7.11 pm and 10.06 policeman. It was the Crown contention that the appellant directed So to supply heroin that night. The Crown relied upon surveillance evidence which revealed that the car described by the appellant was seen in the Homebush West area, although apparently the supply attempt was unsuccessful. Later that same night the appellant was recorded as saying to So that an appointment had been made for 3.00 pm the following afternoon at the Casino. The next events were those occurring on 28 January 1999 at the Casino when So and Ngai were seen to meet with two other Asians. After that meeting the two Asians were later seen to be carrying a bag with them which they did not have before they met with So and Ngai. The Crown also relied upon a video of some of the events at the Casino that was tendered.

45 The next event was that occurring on 28 January 1999 when the Crown alleged that the appellant arranged with Kim for the delivery of heroin at 11.00 am on 29 January 1999. It was the Crown case that the following morning at about 10.30 am Ngai was seen in Tenterfield Street, North Strathfield. The Crown submitted he went there to collect heroin. He subsequently was seen to walk up to a Holden Barina car registered No. SYX-642 in Homebush West and then walk away with a white plastic bag. That same day, 29 January 1999, the appellant was recorded at 1.05pm as saying to So that yesterday something for another person was “short”, and that he should “give the same back to him/her at 4.00 o'clock". At 2.47 pm that same day the appellant told So not to go out as he, the appellant, had thought someone was nearby, the inference being that that appellant believed he was under surveillance.

46 The following day, 30 January 1999, at 12.07 pm the appellant was recorded speaking to So and instructing So to meet at 5.00 pm with the person in car registered number AGB-09B, who was cancelled the previous day. This telephone call, as with the other telephone calls referred to should not be viewed in isolation. The events involving So and Ngai which were subsequently observed were highly relevant and placed an entirely different “gloss” on the appellant's conversations with So than the explanations the appellant gave in his evidence, the Crown submitted. For example, following the appellant's conversation with So on 30 January 1999, at about 3 o'clock and again at 4.45 pm that day Ngai was seen to go in his car to Tenterfield Street, North Strathfield. It was the Crown case that this trip was to collect heroin. At about 4.50 pm Ngai then was seen to enter the car park in Henley Street, Homebush. At the same time, OQX-850, which was the car So was driving, was observed parked in Hampstead Road, which was fairly nearby to Henley Street, Homebush. At 4.52 pm So and another man were seen in that car park and Ngai went into the car park. Ngai went up to MK-5 10 that was parked there and took from it a white bag bearing the name "Pierre". He went up to the car AGK-09B and opened its door and placed that bag inside. He then went back to his own car RXK-510 and drove off. A little later on, an Asian got into AGK-09B moved the white “Pierre” bag and drove out of the car park. The Crown says this was a delivery of heroin which had been arranged between the appellant and So in the telephone conversation at 12.07 pm on 30 January 1999. The same day, 30 January 1999, at 9.38 pm the Appellant was recorded speaking to So. In the Crown submission, the appellant instructed So to make a delivery of heroin at 11.00 pm that night. So also reported back that the 5.00 pm delivery had been completed.

47 The next conversation relied upon by the Crown occurred on 6 February 1999 at 6.55 pm. The Crown says that this was a conversation where the appellant directed So to arrange for the delivery of two units of heroin in Homebush West at 9.00 o'clock to a car, AGK-09B. It might be noted that Ngai was seen to attend at the safe house at Tenterfield Street at 8.37 pm that night and was later seen in Homebush West.

48 The next conversation relied upon by the Crown occurred on 7 February 1999 at 12.43 pm when the appellant was recorded speaking to Kim. It was the Crown case that in this conversation the appellant agreed to arrange for the delivery of two quantities of heroin at 11.00 o'clock the following day.

49 The next conversation relied upon by the Crown is that which occurred at 12.46 pm on 7 February 1999. The details of this conversation between the appellant and So and the subsequent steps taken by So and Ngai have been already outlined above.

50 After Lam was arrested on 8 February 1999 the unit was searched and $30,000 in cash was found in the washing machine as well as set of eight keys, six of which fitted the safe house and the other two fitted So's car and the Holden Gemini, OQX-850. When So's premises at 292 King Georges Road, Roselands was searched police not only located $43,900 in cash, but also an electronic money counter and keys to the safe house. When Ngai was arrested he was also found in possession of keys to the Tenterfield Street property and to the car garaged there. Any doubt as to the activities of So and Ngai in delivering packages to various cars were put to rest when the safe house and the car garaged at Tenterfield Street was searched and approximately 14 kilos of heroin located.

51 In the Crown submission, only once the totality of the evidence is considered, especially the evidence of contents of the telephone intercepts reviewed in light of the coinciding activities of So and Ngai, can the significance of the appellant's access to the keys can be properly assessed. The Crown rejects the proposition that the finding of the keys and cash amounted to a “crucial part of he prosecution case", as the appellant contended. Rather these items amounted to "icing on the cake". Further, the Crown submitted, it was fallacious to suggest that the case against the appellant would effectively fail if the jury concluded that the keys and cash belonged to someone other than the appellant.

52 The Crown pointed to no objection having been taken when police gave the evidence regarding the finding of the keys and cash in the unit. The trial judge was not requested to exclude the evidence pursuant to s137 of the Evidence Act 1995.

53 The Crown accepts that when the appellant gave evidence he claimed he knew nothing about the keys and cash found in the unit under clothes in the washing machine. When asked: "Did you happen to look into the washing machine from time to time?” he stated “I never wash anything". When he was then reminded that police had observed him hanging out washing on 14 December 1998 at the unit, he stated he had no memory of the event, although he appeared to accept he did hang out clothes for Kim and also placed items in the washing machine. It was clear, however the Crown says, that there was a basis for the jury finding the appellant's explanation of not knowing about the money found in the washing machine less than convincing.

54 The trial judge’s directions to the jury considering the issue of possession were, if anything, more favourable to the appellant than necessary. There appears no reason why the Crown would not be as entitled to rely upon joint possession of the keys and cash found in the unit, but the jury was directed that exclusive possession on the part of the appellant was required. The jury was instructed that:

“Unless the Crown has satisfied you beyond reasonable doubt that the accused and only the accused was in possession of [the keys and cash], that is he knew they were there and exercised custody and control of them, then you are not entitled to take them into account....

If you are not satisfied beyond reasonable doubt that he was in possession of them, then, or indeed any of them, then you must in fact disregard them when considering his guilt”.

55 This direction was clearly more favourable to the appellant than required. The jury was entitled to have regard to this evidence even if it was shown to be in the joint possession of the appellant and for example, So. That there was no application made by counsel appearing for the appellant for any redirection regarding his Honour's directions concerning possession, is, thus, not surprising. In particular, his Honour was never asked, expressly or otherwise, to direct the jury in accordance with the appellant’s proposition (c) above: "that if you consider it to be a reasonable possibility that the keys belonged to someone other than the appellant, the case against him effectively fails". The Crown relies upon Rule 4.

56 The Crown’s entitlement to rely upon Rule 4 is well founded (and indeed counsel for the appellant acknowledged the Rule’s application in respect of all grounds save the last). Little is achieved by this Court seeking to determine whether or not the matter of the possession of the keys is “icing on the cake” on the one hand, or an essential component of the Crown case on the other. As stated above, the Crown case was fundamentally a circumstantial one in respect of which it cannot be gainsaid that the question of possession of the keys was but one of the matters for the jury’s consideration. Nor can it be disputed that the appellant received a very favourable direction from the trial judge to the jury on that issue.

57 Counsel for the appellant drew our attention to the fact that at the first trial of the appellant a charge relating to possession of a firearm (in addition to the conspiracy charge), found at the Mount Street home unit, was the subject of a not guilty verdict. At that first trial the jury was unable to agree upon the conspiracy charge. I am not persuaded that this proposition advances the case of the appellant. Of course the jury was unaware of that outcome. On the other hand, the jury, as I have remarked, was favourably instructed by the learned trial judge on the issue before it in relation to possession of the keys. The approach adopted by the Crown in this appeal, namely approach to the evidence as a whole, is clearly the appropriate one, and provides the proper context for this Court to consider the matter of possession in respect of which the jury was favourably directed, no further direction was sought, and which constituted, as I have said, but one component of a circumstantial case.

58 Grounds 1 and 2 fail.

Supplementary Ground 2: That the search warrants obtained to search the unit and the Tenterfield Street were not valid

Mr Byrne SC for the appellant candidly acknowledged the difficulties standing in the way of the success of this supplementary ground. The first, simply stated, is that no such matter was raised in the course of either trial. Second, insofar as the validity of the search warrant was questionable on the basis of use of intercepted communications founding the application therefor, there was no material at all that this in fact was the case. In the only ruling in any sense connected with the subject matter of this supplementary ground (being that of 29 August 2000) the learned trial judge was concerned with access being sought to documents produced in answer to subpoenas, being documents identified as affidavits relied upon in support of the issue of warrants under the Telecommunications (Interception) Act 1979 (Cth) (“ TI Act” ) and the Customs Act 1901. In short, his Honour came to the view, within the context of that discrete application for access pursuant to the issue of subpoenas, that no “legitimate forensic purpose” had been shown; the exercise was clearly “fishing”. It was also conceded by Mr Byrne that little, if anything, could be done with the problem sought to be encompassed by this supplementary ground. An appeal under s5F of the Criminal Appeal Act would have been the appropriate mechanism if his Honour’s decision, for example, was such as to stand in the way of a fair trial for the accused by his wrongly coming to the view on an antecedent issue (legitimate forensic purpose - notwithstanding the authority of Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162 and Attorney-General for New South Wales v Stewart (1994) 34 NSWLR 677).

59 On what has to be the assumption on the part of the appellant, and one not supported by any material, that the police relied upon the content of communications intercepted pursuant to TI Act warrants, it was submitted that such a use was not permitted as the issue of a search warrant is a “proceeding” within the terms of s5 of the TI Act and was not an “exempt proceeding” (s74).

60 The Crown submitted that the appellant's contention is not in accordance with authority which has identified that an application to an authorised justice (“Justice”) for the issue of a search warrant is not a "proceeding" within the terms of s5 of the TI Act but an administrative act. "Exempt proceeding" is defined in s5B of the TI Act.

61 Unlike a judicial act, it appears clear that an exercise of the power to issue a search warrant (as with an application for other types of warrants) is an administrative act and that power is conferred on a designated person, that is a person (normally a judicial officer) acting in a personal capacity: see Love v Attorney-General for NSW (1990) 169 CLR 307 at 322-3; Flanagan v Commissioner of the AFP (1996) 60 FCR 149; Ousley v R (1997) 148 ALR 510 at 520.

62 A Justice exercising the power to issue a warrant does not constitute a "court, tribunal, body, authority or person" having the power to "hear and examine evidence". The power of a Justice in such circumstances is limited to considering a written application and determining whether it satisfies the statutory criteria for the issuing of a search warrant. A Justice before whom such an application is made may also seek more information. However, that is not an "examination” of evidence. For instance, a Justice is not required to make a finding of fact or determine issues of credibility. The application for a search warrant may to some extent be described as “ex parte”. That would be a term to be used for want of another one but could not connote as is connoted with the usual use of that expression, the possibility of a subsequent “inter partes” issue to be judicially resolved.

63 S3 of the Search Warrants Act 1985 defines "authorised justice" as meaning:

“A Magistrate, or ... a justice of the peace who is a Clerk of a Local Court or the registrar of the Drug Court, or ... a justice of the peace who is employed in the Department of Courts administration and who is declared (whether by name or by reference to the holder of a particular office), by the Minister administering this Act by instrument in writing or by order published in the Gazette, to be an authorised justice for the purposes of this Act”

This definition reinforces the conclusion that as the power is given to a particular person, it is therefore administrative in nature and that it doesn't involve the hearing and examination of evidence. Thus, if it is concluded that an application to a Justice for a search warrant is not a "proceeding" within the meaning of the Act, the limitation on the use of telephone intercept material to "proceedings" which are "exempt proceedings" in s74 of the TI Act does not apply.

64 The authority to use telephone intercept material in an application for a search warrant is provided by ss67 of the TI Act. That section provides that a staff member of an agency can communicate such material to another person for a "permitted purpose". A "permitted purpose" is defined in s5 of the TI Act and that definition includes "an investigation by the agency or eligible authority of a prescribed offence". A "prescribed offence" is also defined in s5 of the TI Act as including a "serious offence" and "any other offence punishable by imprisonment for life or for a period, or maximum period, of at least 3 years". A "serious offence" is also defined in s5 of the TI Act as meaning "class 1 offence or a class 2 offence". A class 1 offence is defined in s5 and a class 2 offence is defined in s5D of the TI Act. S63 provides generally that the dealing in intercepted material must be read subject to s67.

65 An application for a search warrant is a step in the investigation process: that fact is appropriately conceded in the appellant’s submissions. In the Crown submission, to hold otherwise would be an absurdity. For example, in the Crown submission, it would be absurd to suggest that telephone intercept material gained under a telephone intercept warrant for a particular telephone service or person could not then be used in an application for a subsequent telephone intercept warrant for the same service or person when the original warrant expires. In that regard, there is no material difference between the use of the telephone intercept material in an application for a subsequent telephone intercept warrant or a search warrant.

66 Shortly stated, an application for a search warrant under the Search Warrants Act is an administrative act and to describe it otherwise than as an investigation by the agency or “eligible authority of a prescribed offence” would be to pervert the language. It is not a “judicial proceedings” as tentatively advanced initially by counsel for the appellant, it does not involve the consideration of evidence, it is not a “proceeding” and thus the question of whether it was an “exempt proceeding” under s74 of the TI Act is irrelevant.

67 As stated above, there was nothing apparently to suggest that the warrants obtained under the Search Warrants Act were improperly obtained. Further, and as the Crown suggests, more fundamentally, the validity of a warrant was not open to collateral attack merely on the ground that the material laid before the Issuing Officer was insufficient to satisfy the Issuing Officer of the prescribed matters for the issuing of the warrant. That is simply not known. It does not even approach the situation with which Hidden J was concerned in Vincent v Randall & Anor [1999] NSWSC 833 where notwithstanding that false information was provided to the Authorising Justice, other information provided reasonable grounds for the issue of the warrant under the Search Warrants Act 1985, and thus the issue of the warrant in that case was sustained.

68 The supplementary ground fails.

Ground 3: The evidence given by Retired Inspector Michael Drury should not have been admitted

69 In support of this ground of appeal, again some general assertions by the appellant can be identified.

(a) the precise object of calling evidence from Mr Drury is unclear. There is no reliance placed on his evidence in the summing up to the jury by the trial judge.

(b) the mere fact of calling a witness with such a high reputation for personal integrity to give evidence against the appellant was of itself prejudicial to the appellant (this is based on the docudrama “Blue Murder”).

(c) the evidence of Drury was irrelevant according to the definition of relevance in s55 of the Evidence Act and that in any event, it should have been excluded relying on provisions of s137 of the Evidence Act 1995; and

(d) the evidence of Drury amounted to opinion evidence and was therefore subject to the general prohibition found in s76 of the Evidence Act 1995. Furthermore, that the exception found in s79 of the Evidence Act 1995 covering “expert evidence” was not applicable.

70 The Crown submitted the reason for calling the expert evidence of Drury was clear to the appellant's trial counsel and no objection was taken to its admissibility. It should be further noted that Drury apparently undertook his preparation of his statement in the matter whilst he was a serving police officer although by the time the matter first came for trial he had resigned. Furthermore, despite the appellant’s suggestion to the contrary, the “docudrama” “Blue Murder” referred to in the appellant's submissions was not actually broadcast in NSW until 31 July 2001 and 1 August 2001, well after the second trial was completed. Whilst Drury may now have a well-founded public reputation for personal integrity, there is no evidence to suggest that this was the case as at the time of the trial. Leave was granted to the Crown to file an affidavit of Peter Glen Baker, a National Crime Authority Investigator, sworn 5 September 2002. Its contents were non-controversial and related to the telecasting of “Blue Murder” on 31 July and 1 August 2001, after the conclusion of the second trial.

71 The Crown submits that fact that Drury's evidence was not specifically referred to in the summing up by the trial judge does not mean either that it was irrelevant or insignificant. It is clear from the relative brevity of the summing up that there were numerous aspects of the evidence that the trial judge determined did not require particular mention. -Furthermore, in the Crown submission, Drury was appropriately qualified to give the evidence he gave and the evidence was relevant and admissible. No objection was taken to the evidence. The Crown relies upon Rule 4.

72 In the first trial in which Drury gave similar evidence, there was considerable legal discussion about the proposed evidence, namely using his expertise to decode drug conversations. After this discussion there was a short adjournment subsequent to which the appellant's then counsel, Ms Fullerton SC, is recorded as saying that she's discussed the matter with the Crown and that that an agreement has been reached. It was accepted that Drury would give evidence of only some things and the defence would not challenge his expertise. In the course of this discussion the trial judge made reference to R v Huynh, unreported NSWCCA, 13 May 1996 in which Gleeson CJ noted that R v Al Kahair, unreported CCA, 20 June 1994, was authority for the proposition that such evidence was admissible in circumstances, namely where what the witnesses did:

“was to relate what was said about price, quantity, and other aspects of the substance under discussion to their knowledge of the illicit heroin trade, and to express an opinion, based on that knowledge, that the parties to the conversation, who were shown by other parts of the conversations to be drug dealers, were talking about heroin. This is a proper field for expert evidence”.

73 Ms Fullerton SC expressly stated that there was no challenge "at this stage that we could invite your Honour to resolve" to the evidence of Drury. Drury was not called to give evidence until 8 August 2000. During the preceding day there was a further discussion in the absence of the jury about Drury's evidence where Ms Fullerton SC stated that:

“Mr Drury is the expert witness who is going to do some interpreting of the content of some of the telephone calls. Your Honour will remember there was a lengthy argument and we resolved to settle that in a sensible way. So there's to be some cross-examination of that witness…”.

74 In the first trial Drury started giving his evidence on 8 August 2000. As a result of the illness of a juror, some days were lost, and then the co-accused Ngai changed his instructions and pleaded guilty. The trial then continued against the appellant alone and Drury continued to give his evidence. He answered a question directly that the recorded conversations about "dinner talk" could be a reference to illicit drug dealing, and there was no objection by defence. The cross-examination by Ms Fullerton SC in the first trial only covers two pages: she sought to establish that "black" heroin was in fact not black: Drury conceded it was in fact a "very very deep grey colour". It appeared in the first trial that the defence was quite content to concede Drury's expertise. Ms Fullerton SC appeared largely content to let the Crown ask any questions of Drury then gained the admission “black dinner” couldn't be black heroin because black heroin is actually grey.

75 The defence in the second trial adopted a similar approach to that adopted in the first trial. The Crown was permitted to ask various questions of Drury regarding his opinion of various statements in the intercepted conversations. In cross-examination the defence asked only four questions, the point being established that the opinions Drury had previously expressed were simply that the conversations in question "were consistent with and could be a reference to ... illicit drug dealing”.

76 In Reginav David and Gugea (unreported NSWCCA, 10 October 1995) the Court held that Drury should be permitted to give similar evidence. Whilst it would appear that this case was concerned with the legal position before the Evidence Act 1995 took effect, in the Crown submission, the position remains the same under the provisions of that Act. S79 of the Evidence Act 1995 specifically recognises that a person can gain specialised knowledge via "training, study or experience". In the Crown submission Drury was appropriately qualified to give the evidence, and it was both relevant and admissible.

77 For the appellant it was argued that his testimony did not amount to anything of substance in assisting the Crown to prove its case. It was the contention of the Crown, of course, that the appellant was using some kind of code in the recorded conversations to avoid making express references to drugs or drug dealing. It was submitted that that contention would be open to the Crown without relying on a so-called expert to testify that in his considerable experience (which was not disputed) people who deal in drugs use code in their conversations. It was argued that Drury’s evidence was not required to support any such conclusion; the Crown argued that it was coded conversation and the defence argued that it was not, an therefore Detective Drury’s testimony did not have any rational bearing on the assessment of the competing cases. It was in this context that it was argued for the appellant that the “mere presence” of Mr Drury “in the list of prosecution witnesses” had the effect of enhancing the overall strength of the prosecution case, but not by reference to the evidence which he gave. This submission does not bear consideration.

78 The further point was made that the evidence of Mr Drury, by reason of really one component in which he goes further than asserting an opinion but states something as a fact (as to whether a reference to a “meal” was a reference to a meal) offended the principle in Regina v David & Gugea, where the Court said (at page 9):

“The principle objection to an expert giving evidence such as was given in the present case ( scil the subject matter of the conversations was in fact the supply of heroin) is that it is always liable to so influence a jury that they would not trouble to make up their own minds. In a case such as the present, it would necessarily require the exercise of the trial judge’s discretion to exclude it”.

The first observation is that no objection was taken to the non-responsive answer. No request was made to the learned trial judge to exclude it, and further, that fact must be viewed in the context that both in the first and second trial no objection was taken at all to Drury giving evidence in the proceedings, and indeed, in the relevant second trial, he was hardly cross-examined at all and was dealt with tactfully by experienced trial counsel for the appellant.

79 Further, it was contended that notwithstanding the circumstances just adverted to (the agreement and the absence of objection) in any event the evidence of Drury had “no weight” and thus fell within what Priestly JA said in Regina v Khair & Or (NSWCCA, unreported, 20 June 1994) at page 50:

“…properly understood, Det Sgt Flanders' statements that particular words used in the conversations tendered in evidence could be references to drugs were in truth opinions expressed within his area of expertise. In this part of his evidence he was relating the general opinion he had expressed to the particular facts he was asked about: legitimate material to be obtained from an expert and an aspect of his evidence which I do not understand to have been separately challenged in the appeal. The point the appellants were trying to make was that for Det Sgt Flanders to say that X could mean Y was not really to say anything of any significance, because as a general matter the same thing could be said about any word at all; it is always possible that in a particular context a speaker may use one word in place of another, whether by pre agreement with the hearer, or in the hope that the hearer will understand what the speaker is intending, or simply by mistake.
But that was not the point of Det Sgt Flanders' statements. He was not giving evidence to the jury that generally speaking any one word can be used to mean any other, he was giving evidence that amongst people concerned in the buying and selling of drugs particular words, not ordinarily used to describe drugs, are used to describe drugs, in the hope of avoiding any possibility that other persons will know what the speakers are talking about. Someone with the experience of Det Sgt Flanders knows that in such circumstances such use is sometimes made of ordinary words. Part of his knowledge is that the people who sometimes make such use of ordinary words, also sometimes use those ordinary words in their ordinary meaning. It seems to me to be reasonable to assume that the knowledge of jurors in general of these facts would be unlikely to approach that of Detective Sergeant Flanders. Thus, on the assumption that the people engaged in the conversations are engaged in buying and selling drugs the evidence given by Det Sgt Flanders is not speculative but stating the fact that in the particular conversations particular words do not always have their common meanings. Such evidence may have no weight in some cases if the Crown does not have other evidence before the jury from which, taken in conjunction with all the materials before the jury, it is properly open to the jury to infer that the alleged drug dealing business was being carried on. Such cases would be those in which the tendered conversations, looked at entirely by themselves, did not on their face justify the inference that the speakers were engaged in illicit drug dealing activities. In such cases, if no other evidence of that fact were available, expert evidence such as that of Det Sgt Flanders would have no weight but would still be in the realm of expert evidence”.

In considering the application of what Priestly JA said, it is difficult to leave to one side the circumstances (which were attended by agreement between the parties) in which Drury gave his evidence unchallenged as to his expertise (and, leaving aside the de minimis reference to the “meal” ); it was proper in form. This was not a case in which the expression “no weight” can apply in circumstances where the Crown does not have other evidence before the jury which, taken in conjunction with all the materials before that tribunal, it was properly open to it to infer that the alleged drug dealing business was being carried on. For myself I would come to the view that this was precisely a case to which Priestly JA’s statement has no real application. For completeness I add that the slip up in relation to the “meal” would not constitute a contravention of the principle in David & Gugea if I have not hitherto made that clear.

80 I am of the opinion that in a case in which it is starkly in issue that the Crown says the tapes are in code and the appellant says they are not, the evidence in proper form, and the more so when admitted by agreement, and hardly challenged, of such a witness as Mr Drury, would be of substantial weight.

81 I would add that the observations of Gleeson CJ in Regina v Van Phanh Huynh (unreported, NSWCCA, 13 May 1996) (while to some extent distinguishable on its facts, there was an express reference to drugs) can be called in aid of the Crown (see pages 11-12).

82 In my view Rule 4 can successfully be relied upon by the Crown in relation to the third ground of appeal. In any event, the view could otherwise hardly be formed that any substantial miscarriage of justice occurred in the peculiar circumstances of the tendering of Mr Drury’s evidence in this trial. This ground of appeal fails.

Ground 4: Having regard to the evidence the verdict is unreasonable

83 In support of this ground the appellant relied primarily upon the submissions put in relation to the strength of the evidence in connection with “possession” of the keys found in the unit at North Sydney. It was conceded that if that evidence was regarded as admissible (which it is) and if the directions given by the learned trial judge on the general issue of possession are considered adequate (which they are) there remains to be considered, it is said, the question of whether the evidence is sufficient to prove the appellant’s guilt beyond reasonable doubt. Essentially, it is submitted that the evidence associating the appellant with the Tenterfield Street premises and the Holden Gemini car garaged there was “not strong”.

84 Although the appellant conceded that he knew people who had been seen by surveillance police at the subject premises, the mere fact of his association with those people did not necessary associate him with the premises. Ultimately, the Crown case in this case, it was said, depended upon the keys. Even if the necessary link between the appellant and the premises is established, it was argued that the link was “somewhat tenuous” and an insufficient foundation on which to base a conclusion of guilt beyond reasonable doubt.

85 The Crown of course disputed the appellant’s submission as to the link between the safe house and the car garaged there. The important link, according to the Crown, was that which was clearly established between the appellant and his co-conspirators, So and Ngai. The Crown relied upon its overall view of the totality of the evidence dealt with in the preceding grounds. For example, there were numerous occasions of the appellant giving explicit telephone directions to So or Ngai which were subsequently translated into the delivery of heroin.

86 The approach to the submission embraced by this ground is well known: see Regina vMarkuleski (2001) 52 NSWLR 82 at 87 [9] – 88 [11].

87 I am of the view that upon the whole of the evidence it was open to the jury to be satisfied to the requisite degree, taking into account that tribunal’s primary responsibility and the circumstances of it having sentence and heard the evidence as it was presented. The Crown case was properly presented, it was properly met and defended, and properly were all the issues of fact and law summed up to the jury; the essential structure of this appeal reinforces that proposition. There is no basis for this Court’s intervention on the asserted ground. Ground 4 fails.

88 The appeal should be dismissed.

89 HIDDEN J: I agree with Levine J.

90 HOWIE J: I agree with Levine J.

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