R v Lao and Nguyen
[2002] VSCA 157
•2 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 202 of 2001
| THE QUEEN |
| v. |
| VINH LAC LAO THE QUEEN v. THANH HUNG NGUYEN |
| No. 213 of 2001 |
---
JUDGES: | BUCHANAN, VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22-24 July 2002 | |
DATE OF JUDGMENT: | 2 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 157 | 1st Revision: 7 October 2002 |
---
CRIMINAL LAW - Drug trafficking - Two accused named in one count - One joint enterprise - Buyer and seller dealing with same principal - Interdependent transactions - Verdicts not unsafe or unsatisfactory - Admission of evidence of acts and declarations of others - Independent evidence of pre-concert - Unbalanced charge - Jones v. Dunkel direction - Whether correct - Search warrant - Video film made during execution of warrant - Later use of film by prosecution at trial.
Crimes Act 1964 (Cth), s.3J.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B.M. Young | DPP (Commonwealth) |
| For the Applicant Lao For the Applicant Nguyen | Mr S.A. Shirrefs Mr O.P. Holdenson, Q.C. | Theo Magazis & Assoc. Theo Magazis & Assoc |
BUCHANAN, J.A.
On 2 May 2001 Vinh Lac Lao (“Lao”) and Thanh Hung Nguyen (“Nguyen”) were arraigned in the County Court and pleaded not guilty to a presentment containing one count alleging that between 7 April 1999 and 3 August 1999 Lao and Nguyen with Ko Kon Tong (“Tong”) and others trafficked in heroin.
After a trial lasting nearly three months the accused were found guilty. Pleas were heard by the trial judge, who sentenced Lao to a term of 21 years' imprisonment with a non-parole period of 17 years and Nguyen to a term of 12 years' imprisonment with a non-parole period of nine years. Lao and Nguyen seek leave to appeal against their convictions and Lao seeks leave to appeal against his sentence. The Director of Public Prosecutions has appealed against the sentence imposed upon Nguyen.
The Crown case consisted mainly of transcripts of intercepted telephone conversations and recorded face-to-face conversations in Cantonese and Vietnamese concerning three consignments of heroin to Melbourne, one in May 1999, another in June 1999 and a third in August 1999. The first two consignments were distributed; the third was intercepted and the applicants and their associates were arrested.
According to the Crown, Tong, assisted by his acolytes Le Phan Vuong (“Vuong”) and Dat Thinh Ong (“Ong”), acted as the middleman. Based at the hotel at Crown Casino Tong acquired heroin from Lao and onsold it to Nguyen. Vuong and Ong were a de facto couple living in Melbourne who assisted Tong in soliciting funds, seeking wholesale purchasers of the heroin and arranging the collection and distribution of the heroin.
Lao, a Cantonese speaking resident of Hong Kong, obtained from mainland China the heroin which he supplied to Tong. Lao dealt directly with the persons who received the first and third shipments from Sydney and accompanied the heroin when it was brought to Melbourne. Lao monitored the delivery of the second consignment from afar.
Nguyen, who lived in Melbourne, was a large scale wholesale distributor of heroin in Melbourne and the principal purchaser from Tong. The heroin purchased by Nguyen from Tong was all supplied by Lao. The funds used by Tong to purchase heroin from Lao were supplied by Nguyen.
The first consignment was delivered by Lao to Tong on 2 May 1999. The heroin was of inferior quantity, which prevented its quick resale and thus deprived Tong of the funds needed to repay his creditors. The police attempted to intercept the second consignment upon its delivery in Melbourne. Vuong, Ong and others were arrested on 12 June 1999 but soon released without being charged when the heroin, which had been delivered, could not be found. On 2 August 1999 Lao and a male companion brought a quantity of heroin from Sydney to Melbourne. The next morning the heroin was placed in the boot of a car while it was in a carpark overlooked by Lao's room in the Crown Casino hotel. Shortly after 6 o’clock that evening investigators attached to the National Crime Authority opened the boot of the car and found 20 blocks of heroin. Within an hour Tong, Ong and Vuong were arrested. A few hours later police entered Lao’s room with a search warrant and video-taped items in the room without removing anything. Lao was not arrested until he appeared one month later at Sydney Airport. Nguyen was arrested on 5 August 1999.
Neither applicant gave evidence. No evidence was led on their behalf.
The first ground of Lao’s application for leave to appeal against conviction is that the verdict is unsafe and unsatisfactory in that the evidence did not establish that Lao and Nguyen were jointly engaged in the offence of trafficking which was alleged, but rather at its highest disclosed the existence of several heroin trafficking businesses. The next six grounds of appeal (grounds 2 to 7) complain that the directions of the trial judge to the jury did not properly describe the matters the Crown was required to prove in order to establish the count. In particular complaint is made that the trial judge erred in failing to direct the jury that the two accused were jointly charged with committing the same offence and erred in directing the jury to consider the offence against Lao as separate and discrete from the trafficking alleged against Nguyen. Specifically it was contended that the trial judge erred in failing to direct the jury –
· on the law with respect to an offence committed pursuant to a joint agreement to which Lao and Nguyen were a party;
· with respect to the concept of agency in the context of a joint enterprise involving both Lao and Nguyen;
· that to find guilt against Lao they must be satisfied that the trafficking of Lao and Nguyen were in furtherance of the one criminal enterprise in which they were both joined;
· that if the Crown failed to negate the possibility that Lao and Nguyen were involved in separate businesses, they must acquit.
The eighth ground is that a substantial volume of evidence was wrongly admitted pursuant to the principle of pre-concert described in Tripodi v. R.[1] for no joint enterprise of the kind required had been proved. The ninth ground is that the trial miscarried because the Crown re-cast its case by changing it from one of joint enterprise to the commission of separate offences. Grounds 10 and 11 are that the trial miscarried because the trial judge’s charge lacked impartiality and neutrality and failed to adequately put the defence case to the jury. Ground 12 is that the trial judge, having given a Jones v. Dunkel[2] direction with respect to the failure of the police to produce evidence of a number of telephone conversations, erred in his direction to the jury and negated the effect of the direction by comments which he made adverse to Lao. The remaining ground of appeal, ground 13, is that the trial judge erred in holding that the images obtained by the use of a video camera in the execution of the search warrant in Lao’s room at the Crown Towers Hotel were lawfully obtained.
[1](1961) 104 C.L.R. 1.
[2](1959) 101 C.L.R. 298.
The grounds of Nguyen’s application are substantially the same, although they are not cast in precisely the same form and do not complain of the use of a video camera during the execution of a search warrant.
Unsafe and unsatisfactory
The original presentment filed by the Crown contained four counts: counts 1 and 2 alleged trafficking in heroin against Lao, Nguyen, Tong, Vuong and Ong during different periods in 1999, count 3 alleged possession of a prohibited import against Lao, Tong, Vuong and Ong and count 4 alleged attempted possession of a prohibited import against Nguyen. On 29 January 2001 the Crown sought leave to file over a new presentment alleging a single count of trafficking against Lao, Nguyen, Tong, Vuong and Ong. (Tong, Vuong and Ong later pleaded guilty to separate counts of trafficking.) In the course of argument as to the form of the count, counsel for Lao said:
"[F]or (the Crown) to be able to satisfy a jury of guilt with respect of Mr Lao, they would have to establish beyond reasonable doubt his participation in the single criminal enterprise in connection with all the other accused throughout the period .… Anything falling short of that raises latent duplicity…. If the Crown contend otherwise then they should not be permitted to proceed on this count."
The prosecutor immediately responded saying, "[W]e do not contend otherwise."
In so far as counsel appeared to agree that in order to establish the applicants' guilt of the single count it was necessary to prove that each of them was guilty of offences arising from the same criminal activity, they were clearly correct.
Each count in a presentment is limited to one offence. Rule 3(2) of the Presentment Rules provides:
"(2)When more than one offence is charged in the presentment particulars of each offence shall be set out in a separate paragraph called the count."
To charge more than one person in the same count is to allege that each person jointly committed the crime specified in the count. In R. v. McConnell[3] Taylor, C.J. at C.L. said:
"His Honour was dealing with a single count, charging three persons jointly with the murder of the deceased. The effect of such an indictment against two or more defendants is to allege a separate offence committed on the same occasion by each defendant and as part of the same transaction. On such a count it is open to the jury when trying a joint charge to which one defendant has pleaded guilty to convict the remaining defendant of committing independently the offence which is the subject matter of the charge, since such a charge is several as well as joint …."[4]
[3][1977] 1 N.S.W.L.R. 714.
[4]Above at 720. See also King v. R. (1986) 161 C.L.R. 423 at 433-4 per Dawson, J.
For present purposes the important point is the joint liability of the accused charged in one count. The joint liability may be established in different ways. In R. v. Merriman[5], which concerned two brothers charged, in an indictment containing one count, with an offence of wounding another man with intent to do him grievous bodily harm, Lord Morris said:
[5][1973] A.C. 584.
"The offences charged in the present case were individual charges against each of the brothers. Each is a separate individual who cannot be found guilty unless he personally is shown to have been guilty. The fact that in one count of an indictment it is set out that A and B wounded C does not warrant the conviction of either A or B unless individual guilt is established. It might be established in different ways. A's guilt might be proved by showing that with his own hand he wounded C. A's guilt might be proved by showing that though he did not himself touch C he caused and directed B to do so; or it might be shown that A and B joined together with a common purpose of wounding C so that in effecting that common purpose each was but the accepted agent of the other."[6]
[6]Above at 592. And see R. v. Hewitt [1997] 1 V.R. 301 at 307-8 per Winneke, P.
In the same case Lord Diplock said:
"[W]hen two men are aiding one another in doing physical acts with criminal intent, though the mens rea of the separate offence of each is personal to the individual charged, the physical act of either one of them is in law an actus reus of the separate offence of each. A 'joint offence' of two defendants means no more than that there is this connection between the separate offences of each, so that as against each defendant not only his own physical acts but also those of the other defendant may be relied upon by the prosecution as an actus reus of the offence with which he is charged.
This connection between the separate offences of two defendants has from very early times been treated as the justification for charging two defendants in the same indictment and, after the introduction of separate counts in an indictment, for charging them in the same count. To quote Hale:
'If there be several offenders, that commit the same offence, though in law they are several offences in relation to the several offenders, yet they may be joined in one indictment, as if several commit a robbery or burglary or murder.' (Pleas of the Crown, 1778, vol. 2, p.173.)"[7]
In the same vein Street, C.J. in R. v. Fenwick[8] said of an indictment containing one count of rape against two persons:
"It is clear, therefore, I think, that an indictment of this nature may be taken - indeed, in my experience that has been the common practice in cases such as this - as being a joint and several indictment of the accused, where the matters arise out of the one transaction - if it is one act and one entire transaction as this was. In other circumstances, of course, where it is not one transaction and one entire act, different considerations might apply, and then it might be necessary, in some cases, to consider whether the count might not be bad for duplicity; but that problem is not present in this case."[9]
[7]Above at 606-7.
[8](1953) 54 S.R.(N.S.W.) 147.
[9]Above at 152-3.
It is not strictly correct to say that more than one person cannot be joined in one count without charging the accused with the commission of the same crime. Each accused must be guilty of committing a separate offence. The question is rather whether several acts can properly be taken together as part of one criminal transaction. The same question arises when one person is charged in a single count with an activity involving more than one act. Whether that can be done properly depends largely on the existence and degree of differences in the place, time and surrounding circumstances of the several acts. In Jemmison v. Priddle[10] Lord Widgery C.J. referred to the case of R. v. Ballysingh[11], in which it was held that where, in a case of shoplifting, the evidence for the prosecution showed that a number of articles had been taken from different parts of a large store, the proper course was to make each taking the subject of a separate count for larceny, and said:
"Thus if the accused is alleged to have gone to one department and picked up a handful of tomatoes, or whatever it may be, it is perfectly legitimate to charge that as a single offence. If the accused spends a substantial time going round the floors picking up a separate article here and another article there, on the authority of Reg. v. Ballysingh those individual articles ought to be charged separately."[12]
[10][1972] 1 Q.B. 489.
[11](1953) 37 Cr.App.R. 28.
[12]Above at 494. See also R. v. Merriman above at 593 per Lord Morris.
If there is not one criminal transaction and no question of joint responsibility, it is not permissible to join several offences in one count.
The offence alleged in the single count in the present case was trafficking in the Giretti[13] sense of carrying on a business of trafficking between dates. On this appeal counsel for the Crown contended that one count was appropriate because Tong and his minions conducted a business of trafficking, the applicants played a part in that trafficking, dealt in the same heroin and their activities enabled the trafficking to be carried out in that Tong's ability to deal in heroin depended upon his purchases from Lao and his sales to Nguyen.
[13]R. v. Giretti (1986) 24 A.Crim.R. 112.
The evidence established that Lao trafficked in heroin by selling it to Tong and that Nguyen trafficked in the same heroin by purchasing it from Tong. The transactions took place at different places at different times. The applicants did not meet or talk to each other or communicate with each other by intermediaries. The evidence did not disclose that either of the applicants was aware of the identity of the other. Tong did not act as a broker bringing together buyer and seller. Tong purchased heroin in his own right as a principal from Lao and on-sold it as a principal to Nguyen. I do not think that the relevant criminal transaction was the trafficking that encompassed all the dealings between Tong and the applicants. The differences in time, place and surrounding circumstances between the acts of trafficking by each applicant precluded the unity that could have warranted one count of trafficking.
More importantly, no question of joint responsibility arose in respect of the trafficking in which each applicant engaged. The applicants did not perform acts in the same activity of trafficking: Lao did not participate in Nguyen's purchases from Tong, just as Nguyen played no role in the sales by Lao to Tong. Neither applicant caused or directed the other to act in their separate acts of trafficking. Finally, the applicants did not join together for the common purpose of trafficking. The applicants may have contributed to the trafficking conducted by Tong, which encompassed all the acts of trafficking of the applicants, in the sense that Lao's purchases made possible the sales to Nguyen while the money provided by Nguyen enabled Tong to acquire the heroin from Lao, and Tong may have been dependent on them both to the exclusion of all others. In my view the applicants did not thereby become jointly liable for all the acts of trafficking with which the Crown case was concerned.
If the applicants had been charged in separate counts, which I think should have occurred, the question may have arisen whether the counts could be joined in one presentment. Further, the existence of separate counts pursuant to which the Crown case would have distinguished between the trafficking of each applicant may have led to the conclusion that the acts performed and words spoken by each applicant were not admissible against the other. More importantly, in the end the evidence led by the Crown was incapable of establishing the one criminal transaction with which the applicants were jointly and severally charged.
The trial judge's charge to the jury was confused. At some points his Honour appeared to direct the jury that it was necessary to find the applicants were both guilty of offences arising from one transaction or business. He said:
"You will see that in order to be guilty as the person charged in a joint criminal enterprise three things are necessary. One, the crime must have been in fact committed by someone. Two, the accused must have known of the criminal purpose and agreed to play a part in carrying it out. Three, the accused must have performed an act or acts for the purpose of carrying out a crime."
And again:
"It is not suggested and it is not the Crown case that there were two separate businesses in some way being conducted during this period."
At other points his Honour seemed to say that it was sufficient for the jury to find that the applicants were involved in Tong's business and it was not necessary for the Crown to establish that the applicants engaged in one business of trafficking. He said:
"Of course it is alleged that both accused shared the same common design to traffick in heroin. However, in relation to either accused it is not essential for the Crown to establish that that other accused was also guilty of the same offence."
And again:
"To establish the charge against Nguyen it is not necessary to prove that Nguyen was involved in the supply by Lao of heroin to Tong."
In the end I think that any shortcomings in the charge to the jury are immaterial. The applicants were charged together with the offence of trafficking, and the evidence could not establish the joint liability of the applicants for such an offence.
Unbalanced Charge
The aspects of the charge of which the applicants complain were apparently a reaction by the trial judge to the position left by the closing addresses of the prosecutor and counsel for the applicants.
The evidence upon which the Crown primarily depended consisted of transcripts of hundreds of intercepted telephone conversations and conversations recorded by listening devices. Four weeks of the trial were occupied in reading the transcripts to the jury. In his closing address the prosecutor told the jury that he would not emulate the prosecutor in another trial of drug offences who read listening device transcripts in an address lasting more than a month. The prosecutor in the present case took the view that the terms of the recorded conversations disclosed transactions in the course of drug trafficking and that the principal issue was the identity of the speakers. He said to the jury:
"So, it's been very much an identity driven and focused address that I'm delivering to you, because if you look at the words they speak for themselves. They are extraordinarily damning …"
Accordingly, the prosecutor in his address dilated upon the evidence of the movements of the applicants and of the mobile telephones in the possession of the applicants and others and the telephone numbers contacted by those using the telephones.
In his closing address counsel for Lao read to the jury extracts from the transcripts of a number of conversations and suggested either that Lao was not a party to a particular conversation or that the subject matter of the conversation was not the supply of heroin. Counsel for Nguyen conducted a similar exercise in respect of six conversations.
The trial judge evidently thought that the effect produced by the applicants' counsel's recitation of and commentary upon the transcripts of conversations and the prosecutor's failure to refer to any significant number of transcripts needed redressing. In a charge consisting of 155 pages his Honour devoted 63 pages to quotations from transcripts and inferences arising from them which were favourable to the Crown case. In his closing address counsel for Lao referred to 28 conversations alleged by the Crown to have been held between Lao and Tong. In his charge the trial judge dealt with each of those conversations and four besides. There was some force in counsel's description on appeal of this substantial part of the charge as a reply to the closing addresses of counsel for the applicants. The jury may well have come to the conclusion, unaided by the charge, that the applicants took part in the conversations and spoke of selling and buying heroin, for the evidence pointed strongly in that direction. In my view the trial judge's charge practically guaranteed that the jury would arrive at those conclusions.
After the jury had retired to consider their verdicts on a Friday afternoon, counsel for the applicants objected to what they contended was an unbalanced charge and applied for the discharge of the jury. The trial judge refused the application. On the following Monday morning, without giving notice of his intention to do so, and in apparent response to counsel's submissions, the trial judge was moved to justify his charge. He recalled the jury from their deliberations and told them that the prosecutor in his address "did not make any reference to the transcripts that have occupied so much of our time." His Honour said that defence counsel referred to "perhaps half a dozen of the transcripts". In fact counsel for Lao referred to 28 transcripts. The trial judge said that it was his view that the inferences arising from the transcripts should be drawn to the attention of the jury and that was why he had dealt with the transcripts and had suggested the inferences that might be drawn from them. As to the source of those inferences his Honour said:
"Almost every one of these inferences that I did make in referring you to particular transcripts was taken from the material which was supplied by the prosecution, which is not (sic) properly not available to you but they are inferences or suggestions that as I understand it the prosecution would have put to you if they had decided that they should examine this material with you. And so my purpose in referring to possible inferences my purpose in relating that material to other evidence of movements of various persons was not to endeavour to influence you as to your decision as to how you view the evidence and the conclusions that you derive from that evidence. It was simply an attempt to elucidate the particular transcripts that I considered should be drawn to your attention."
His Honour went on to say that it was for the jury to determine what inferences were to be drawn from the material and
"… any comments that I have made to you were simply an attempt to raise before you the issues as to the fact of this case, and inferences that can be drawn from the type of material that has been presented to you by the prosecution. You are the judges of fact in this case and you are to let no one to take that role away from you."
In my opinion the trial judge was mistaken in thinking that he was obliged to fill the gap which he perceived was created by the prosecutor's decision not to traverse the detail of the transcripts in his final address. The issues of the identity of the participants to the conversations and the topics to which they obliquely referred were clearly before the jury. The prosecutor chose to deal with those issues in general terms, leaving the jury to determine whether the words in the transcripts bore out his contentions. I do not think that the different approach to the transcripts by the applicants' counsel in their final addresses required an answer by the trial judge.[14] It was for the prosecutor to decide the ground upon which he would contest the issue of the inferences to be drawn from the transcripts; it was not a matter in which the trial judge should have interfered.[15]
[14]Cf. R. v. Smith (1990) 47 A.Crim.R. 43 at 44 per Hunt, J.
[15]See Ratten v. R. (1974) 131 C.L.R. 510 at 517 per Barwick, C.J.
In any event the circumstances that a substantial part of the charge took the form of a response to the addresses of the applicants' counsel and that the inferences suggested by the trial judge were overwhelmingly those which bolstered the Crown case in my opinion were likely to have created the impression in the minds of the jury that the trial judge disagreed with the applicants' interpretation of the transcripts and was urging the jury to infer guilt. No doubt his Honour did not intend to create that impression. As he said, he was attempting to address an omission in the presentation of the Crown so that the jury would properly consider all the relevant evidence. Nevertheless, I think it likely his words did create the impression that he was convinced of the applicants' guilt. In my view the trial judge's references to the jury being the ultimate finders of fact would not have negated that impression. As the Full Court said in R. v. Hulse[16]:
"[T]here is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views."
In my opinion that danger was created in the present case and was heightened by the judge's invocation of supporting material which was hidden from the jury.
[16](1971) 1 S.A.S.R. 327 at 335.
Counsel for the respondent before us made the following concessions: that the great majority of the comments made by the trial judge as to the facts and the inferences to be drawn from them favoured the prosecution case; that the trial judge invited the jury to draw inferences that were not sought to be drawn by the prosecution; that in the trial judge's summary of the content of the transcripts a considerable number of comments were made consistent with the prosecution case; and that the trial judge's references to extraneous prosecution material was entirely unnecessary. He stopped short of conceding that thereby a miscarriage of justice occurred. In my opinion the trial did miscarry. The trial judge entered the arena by aligning himself with the prosecution. In R. v. Mawson[17] the Full Court said that a miscarriage of justice may result
"… from an apparent identification by the trial judge with one or other party to the litigation … or again the miscarriage may result from the jury being led to believe from the judge's intervention that he is himself convinced of the guilt of the accused person."
[17][1967] V.R. 205 at 207.
In my opinion such a miscarriage occurred in the present case.
Jones v. Dunkel
In the course of the trial Lao's solicitor subpoenaed records of all intercepted telephone conversations and discovered that summaries of telephone conversations between Tong and others that might have been relevant to the case had not been produced to the Crown or the applicants by the National Crime Authority and there were a large number of intercepted telephone conversations made to or from Tong's telephone which had not been transcribed or summarized. In the course of their addresses counsel for the applicants pointed out these omissions and suggested in vague terms that it was possible that the missing material might provide an innocent explanation of the words used in the transcripts produced by the Crown. The defence had put in evidence some transcripts produced by subpoena which, it was said, disclosed an innocuous context to particular conversations, and it was suggested to the jury that further transcripts could have had a like effect.
Counsel for the applicants did not seek a Jones v. Dunkel direction. That was hardly surprising. Before the Jones v. Dunkel principle is applied against the Crown account must be taken of the obligation of the prosecutor to call all witnesses who are able to give reliable evidence with respect to the facts that are in issue in the trial.[18] Nevertheless, the trial judge said:
"If you come to the conclusion that the prosecution has deliberately failed to disclose the material recorded in the 200 intercepts or provide it in evidence you would be entitled to conclude that the prosecution believed that the material would provide evidence that would not be helpful to the prosecution case."
[18]See R. v. Glennon [2001] VSCA 17 at [58] per Winneke, P. and Ormiston, J.
The applicants contend that this direction was incorrect and produced a miscarriage of justice. I agree that the significance of the failure to produce a document or witness is not dependent on a finding of deliberate suppression. The true position is that when a party appears to be able to prove the true facts and fails to do so, in the absence of explanation, an inference which is open on the facts that is favourable to the other party may be more readily drawn.[19]
[19]Jones v. Dunkel, above, at 308 per Kitto, J., at 312 per Menzies, J. and at 320-1 per Windeyer, J.
The trial judge, however, preceded the words complained of with this statement:
"I direct you as a matter of law that failure to call evidence in relation to those 200 recorded conversations will only be relevant if the circumstances indicate to you that the prosecution would reasonably be expected to provide that material or tender summaries and/or transcripts in evidence. To put it another way, before you can make use of any such failure by the prosecution, the failure to provide the material must be without satisfactory explanation in circumstances where an explanation would be expected."
The 200 recorded conversations referred to were telephone conversations intercepted by the National Crime Authority in respect of which summaries or transcripts had been made, which had not been supplied to the prosecutor or the applicants. In my opinion the reference to a deliberate failure to disclose the material, when placed in its context and having regard to the circumstances of the case, was not likely to have produced any injustice.
The applicants also complain that any effect beneficial to the applicants of the directions relating to the missing material was undone by the following statement made by the trial judge:
"My comment to you and this is not a direction in law but simply my comment, is that it is better to rely on the evidence that has been placed before you than to draw whatever conclusions you consider appropriate in the light of the directions that I gave earlier about inferences and circumstantial evidence, rather than attempt to speculate about evidence that has not been placed before you."
The trial judge had earlier told the jury that any comments he might make were in the same position as comments by counsel: the jury could act them or not as they thought fit; the decision as to the facts was one to be made by the jury alone. I think that the trial judge's statement, which was clearly identified as a comment rather than a direction as to the law, was not likely to have caused the jury to disregard the judge's earlier directions as to the use they might make of the absence of evidence of telephone conversations.
Search Warrant
On 3 August 1999 a warrant to search Lao's room in the Crown Casino hotel was issued to Robert Wilson, a member of the Australian Federal Police, pursuant to s.3E of the Crimes Act 1914 of the Commonwealth ("the Act"). The warrant authorized a search for any evidential material satisfying all of three specified conditions. The first condition specified articles including telephone numbers, telephone indices, telephone billing account records and documentation relating to the purchase or hire of mobile telephones. The second condition required the items to relate to one or more of the accused or their named associates. The third condition was that there were reasonable grounds for suspecting that the items would afford evidence of the commission of offences against the Customs Act 1901. Wilson was the officer conducting the investigation. Wilson assigned the execution of the warrant to another federal police officer, Ljubo Gec. Wilson instructed Gec not to seize anything in the room unless heroin was found. The search of the room pursuant to the warrant failed to reveal any heroin, and in accordance with Wilson's instructions nothing was taken from the room. During the course of the search a video camera was used to record items found in the room, including telephone numbers, SIM cards and other documents, which were filmed so that they could be read. Still photographs taken from the film were admitted in evidence at the trial. It appeared that the officers who executed the warrant did not have sufficient knowledge to enable them to judge the relevance of the items and documents they filmed. Further, the telephone numbers in the documents were recorded in code, and the code was not broken until long after the search.
Counsel for Lao contended that the filming of the items in Lao's room for the purpose of later analysis and use as evidence was unlawful having regard to the provisions of Division 2 of the Act.
Section 3F authorizes the seizure of the kind of evidential material specified in the warrant found at the premises the subject matter of the warrant. Section 3J(1) provides:
"(1)In executing a warrant in relation to premises, the executing officer or a constable assisting may:
(a) for a purpose incidental to the execution of the warrant; or
…
take photographs (including video recordings) of the premises or of things at the premises."
Section 3K provides that if it is not practicable to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant, the things may be moved to another place to carry out the examination or processing. If things are so moved to another place, the occupier of the premises is entitled to be present when the examination or processing takes place.
Counsel for the applicant relied upon the fact that the only circumstances in which items could be taken from premises pursuant to a search warrant before a decision was made as to whether they satisfied the conditions of the warrant were
those prescribed by s.3K. In effect the argument was that the subsequent analysis and use of film made during the search was impliedly prohibited by the Act.
In my opinion the taking of the film was authorized by s.3J(1). Gec gave evidence that as a matter of practice a record was made by video camera of the execution of search warrants in order to rebut any allegations that an improper search was made or that items were not found at the premises or that damage was caused by the search. In ruling upon the objection to the receipt of evidence of the filmed items, the trial judge appears to have accepted that evidence. Such a use of the video camera in my view was for a purpose incidental to the execution of the warrant.
Wilson gave evidence that he intended that if heroin was not found in the room, there would be a film made which he could later review to see whether it could be used as evidence. While Wilson's contemplated use of a video camera was not incidental to the execution of the warrant, I do not think his state of mind affects the conclusion that the use of the camera by the person executing the warrant fell within the terms of s.3J(1). Once it is concluded that the film was properly made, I do not think that its later analysis and use in evidence was impliedly prohibited by s.3K. That section in my view is limited to regulating the removal of items from premises for later examination or processing. It is not concerned to restrict the evidence which may be given, either orally or by tendering film or photographs, of items found in the premises.
For the foregoing reasons I am of the opinion that as a consequence of the nature of the evidence led to support the single count and the lack of balance in the charge the applications should be granted, the appeals allowed, the convictions of the applicants set aside, and verdicts of acquittal entered.
VINCENT, J.A.
I agree with Buchanan, J.A. for the reasons advanced by him that grounds 10
and 11 of the application for leave to appeal against conviction by the applicant Lao and grounds 6, 7, 8 and 9 of the application for leave to appeal by the applicant Nguyen have been made out. I would therefore allow both appeals against conviction. However, as I do not consider that the remaining argued grounds have been established, the proper consequence would be, in my opinion, that the conviction of each should be set aside and retrials ordered.
Grounds 1-9 inclusive in the Notice of Application for leave to Appeal Against Conviction by the applicant Lao and grounds 1, 3, 5 and part of 10 in that of Nguyen rely essentially upon the contention that the allegation made by the prosecution against each was that he was engaged in a joint enterprise with the other, albeit in combination with Ko Kon Tong and other unidentified persons, to traffick in heroin. Rather than involvement in the conduct of specific transactions the term "traffick” in this context encompassed:
"the carrying on of a trade or business in dealing in drugs or, at the least, a commercial activity in relation to the transmission of drugs from source to consumer.[20]
…
That inference can be drawn from evidence of a sufficient number of transactions by way of sale, delivery or otherwise through the accused, together with such other evidence as will entitle the jury to reach the conclusion that the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and commercial basis during the period of the alleged offence.[21]"
Not only was it necessary in that situation, the argument proceeded, before either could be convicted, for the prosecutor to establish on evidence admissible against the particular applicant that both had been engaged in the same trafficking "business", or "commercial activity" but also to establish that they had entered into an agreement or understanding with each other as to their respective involvements in it. These requirements arose, it was said, from the joinder of the allegations made against them in a single count, the manner in which the Crown case against each was formulated and the conduct of a joint trial justified, and the fashion in which the matter was presented before the jury. It was also relevant in this context, it was claimed, that their asserted involvement in a joint enterprise provided the basis upon which the prosecution had successfully sought to rely upon evidence of the acts and declarations of other alleged participants in the joint activity as being incriminatory of the respective applicants.
[20]R. v. Giretti (1986) 24 A.Crim.R. 112 per Ormiston, J. at 134. Crockett, J. in his judgment in that case stated at 118:
"In my opinion, the term 'traffick' does connote a continuing activity. The Shorter Oxford Dictionary includes among the meanings of the verb: 'To carry on or trade in, to bring and sell; to deal in; often with sinister implication.' Such a construction is consistent with such observations as there are in the reported cases. The tenor of the judgment of Anderson J in Falconer v. Pedersen [1974] VR 185 (a decision often referred to with approval by appellate courts) is that it is immaterial for the purpose of proof of the offence whether the defendant's conduct was or was not an isolated act. His Honour pointed out that the expression 'traffic' was not to be given a limited meaning: see, too, Holman (1982) VR 471; (1982) 4 A Crim R 446."
[21]Above at 130.
In order that these arguments may be considered in an appropriate context, the terms of the single count contained in the presentment should be set out. It reads:
"The Director of Public Prosecutions for the State of Victoria who prosecutes in this behalf for Her Majesty the Queen by Mark William Pedley, a person duly appointed to be a Crown Prosecutor for the State of Victoria, Presents that between about the 7th day of April 1999 and the 3rd day of August 1999 at Melbourne in the State of Victoria and other diverse places, Vinh Lac Lao, Hung Than Nguyen with Ko Kon Tong and other persons did, contrary to sub-section 71(1) of the Drugs, Poisons and Controlled Substances Act 1981, without being authorized by or licensed under the Act or the regulations thereunder to do so, traffick in a drug of dependence, namely Diacetylmorphine (Heroin).
This trafficking was in relation to a quantity of that drug of dependence that was not less than the commercial quantity applicable to that drug of dependence."
The joinder of allegations against two or more individuals in a single count in a presentment carries with it an assertion of joint and several responsibility for the crime identified.[22] However, it does not follow necessarily from the fact of their joinder that the same verdict must be reached in their separate cases[23] or that the responsibility of each is in every case dependent upon a finding by the jury that the particular accused had acted in combination with or in a joint enterprise with one, some, or all of those presented with him or her. Obviously, cases arise in which the conduct in which an accused has engaged would not attract criminal responsibility unless it was undertaken for some purpose connected with an unlawful joint enterprise. The situation considered by the Court in R. v. Clarke and Johnstone is an example of this.[24] However, as Winneke, P. pointed out in Hewitt[25]:
"[T]he mere circumstance that two persons are charged jointly with committing the one offence does not mean that they both have to be convicted on the basis of pre-concert, nor does it mean that one or both of them cannot be convicted if the evidence discloses a discrete basis for attributing criminal responsibility to each. The presentment filed in this case is sometimes called a “joint presentment”, but that only means that, within the rules of practice, it is permissible for two persons to be named in the one count. In reality the presentment means that each of the offences charged is an individual charge laid against each accused. As Lord Morris of Borth‑y‑Gest said in R. v. Merriman [1973] A.C. 584 at 592:
'The fact that in one count of an indictment it is set out that A and B wounded C does not warrant the conviction of either A or B unless individual guilt is established. It might be established in different ways. A’s guilt might be proved by showing that with his own hand he wounded C. A’s guilt might be proved by showing that though he did not himself touch C he caused and directed B to do so: or it might be shown that A and B joined together with a common purpose of wounding C so that in effecting that common purpose each was but the accepted agent of the other.'"[26]
[22]King v. R. (1986) 161 C.L.R. 423 per Dawson, J. at 433.
[23]R. v. Darby (1982) 148 C.L.R. 668.
[24]In that case which involved the cultivation on a farm of a large quantity of cannabis, the prosecution claimed that the project was a joint enterprise with a number of participants performing different roles. Johnstone had assisted in the purchase of the property and had purchased items for use on the farm which he visited from time to time. On his appeal against conviction, the court held (inter alia) that:
"[T]he cardinal issue was the knowledge of the applicant (and the Currans) of the crops' being grown on the land. The case for each party was conducted on the basis that, if such knowledge were proved beyond reasonable doubt, then the possessor of the knowledge was guilty."
[25]R. v. Hewitt [1997] 1 V.R. 301. Somewhat surprisingly, no reference was made to this authority or the principle for which it stands in the court below or in the proceeding before us.
[26]At 307-8.
In the present case, it would seem to be quite clear that, from the outset, the prosecution contended that each of the applicants was knowingly implicated in what could be appropriately described as a single integrated operation under which heroin sourced in China by the applicant Lao was supplied by him to Tong and his associates (to whom we will refer as the Tong group) in Sydney who, in turn, on-sold the material to Nguyen. It was not suggested that these arrangements were necessarily exclusive in the sense that those involved dealt only with each other, or that they may not have been involved in other activities, lawful or otherwise. There was no indication that Lao and Nguyen may have met; indeed, it would perhaps be surprising if they ever had, or that either had knowledge of the identity of the other. However, the prosecution claimed, all could be held to have been involved in a joint enterprise.[27]
[27]See R. v. Clarke and Johnstone [1986] V.R. 643 per Crockett, McGarvie and Southwell, JJ. at 653 where the following passage in Russell on Crime 12th Ed to this effect was cited with approval:
"All the facts of the case must be taken into account so that where it appears that there is a joint enterprise afoot between two (or more) persons in which each has an active part to perform in order to effect the criminal purpose then each participant is equally a principal in the first degree ... So also there may be joint action in cases of stealing and other crimes. In certain circumstances each of the participants may do his part in the absence of the others and even may not know by whom the other parts were executed."
The approach adopted by the Crown throughout the trial was succinctly outlined by the prosecutor when presenting submissions in response to an application for a separate trial, made on behalf of the applicant Lao prior to the empanelment of the jury:
"The Crown will be asserting that it is self-evident that Tong was an entrepreneur who was still in the ordering of heroin for the delivery in Melbourne. This involved him in dealing with the supplier. The supplier was Lao. The Crown will be asserting that it is self-evident that Tong required buyers for the heroin that he was arranging to procure. He had a principal buyer who paid substantial amounts of money to both Tong and his subordinates. The supplier the Crown says was Lao. The purchaser was Nguyen. Nguyen needed supply, Lao needed purchase. But that is where they come together, but the fact that they come together through intermediaries is hardly unique within the world of business."
When opening the Crown case before the jury, the prosecutor stated:
"[T]he prosecution allegation is that those other key players and these two accused are already in a working business relationship; they are all in business together. No introductions are necessary between them, they all know each other or at least need each other to stay in this business.
Now in the case of these two accused they don't personally know each other at all, they don't even speak the same foreign language. They regularly are at least [a] hemisphere apart, north and south, Hong Kong and Melbourne but they need each other like a plant needs rain, like a human needs oxygen, like a pie needs sauce. Business is business no matter what the business is. A commercial wholesale buyer needs a supplier and a commercial supplier needs a wholesale buyer. In essence that's who the Crown says these two men are: a supplier and a buyer."[28]
[28]Transcript at 23.
As these passages make plain, the prosecution asserted that not only did Lao and Nguyen both engage in heroin trafficking activities with and through the Tong group, but all involved appreciated that the success of each was, to some extent, dependent upon the viability of the operations of all. The nature of their relationship, it was argued, was such that an inference of the existence of a common design with respect to their interconnected activities could be drawn.
As will be observed from the summaries set out later in this judgment, there was a deal of evidence before the jury to support the finding that the Tong group, with which each of the applicants allegedly dealt throughout the relevant period, was trafficking in heroin in a Giretti sense. There was evidence that, in their respective roles as supplier and purchaser, each of the applicants was heavily implicated in that trafficking. The question which arises at this point is - could an association of the type described, if properly established on admissible evidence, provide a sufficient basis for a finding of guilt of Giretti type trafficking against either or both on the same count? In my opinion, the answer to that question is - Yes.
Conceptually, there would be no difficulty in formulating the Crown case in this fashion. It is important in this context to appreciate that the expression "trade or business" adopted by the Court in Giretti carries no necessary connotation of the existence of some formal structure or organization. It was employed in a broad sense to encompass relatively continuous activity over a designated period of time in dealing commercially in the designated material.
Approached on this basis, and considered in the context of the present matter, in order to secure the conviction of Lao or Nguyen for trafficking in combination with each other or with Tong and others in a Giretti sense, the prosecution would need to establish (inter alia) that the individual concerned participated in what he recognized was a continuous integrated activity conducted by the Tong group. It would also be necessary that there could be no uncertainty or duplicity in the count itself or as to the basis of any conviction. Accordingly, it would have to be clear that only one such integrated activity was encompassed by the count.
These aspects were addressed in the Outline of Respondent's Submissions provided to us in the passage:
"The prosecution evidence, taken at its highest, established that both Lao and Nguyen acted and spoke in ways that were consistent with a shared common intention to criminally involve themselves in the promotion of the business of trafficking in heroin being conducted by Tong and others - not merely to act as the supplier thereto (Lao), or to be the buyer therefrom (Nguyen).
The evidence showed that both applicants acted in regular consultation with Tong and others in respect of the conduct of the business of trafficking heroin - for the benefit of the better conduct of that business, in which they were jointly engaged and through which each hoped to separately financially benefit.
Conversely, there was evidence establishing that Tong, Vuong and Ong acted and spoke in ways that were consistent with their shared intention to criminally involve themselves in the regular trafficking activities undertaken with both Lao and Nguyen in furtherance of their joint enterprise, for the benefit of all."
We note that the emphasis here is placed upon "the promotion of the business being conducted by Tong and others", although the alleged involvement of the applicants was obviously for their separate purposes and their relationships with the business were different.
With respect to Nguyen, the evidence and argument upon which reliance was based to support these contentions was summarized as follows:
"· Nguyen was the only purchaser who actually received heroin from the business during the offence period (consignments one and two).
·Nguyen was the only prospective purchaser who had actually provided pre-payment for delivery of part of the third consignment and had placed an order for supply.
·Nguyen's profit was to be derived from his personal on-selling of a portion of the delivered heroin, whilst the remainder of the heroin was provided to others, unknown, who had provided capital to him for its purchase.
The particular features of the core relationship elevated the position of Nguyen vis à vis Tong and others beyond being merely a remote and disjunctive commercial buyer. There was evidence that established that Nguyen had, by his conduct, been taken into the trafficking group as the preferred buyer - a loose group in which each individual intended to make personal commission profit, and where each individual acknowledged a potential financial liability and risk associated with their involvement.
On several occasions, the parties (Ong, Vuong, Nguyen, Tran) remarked that their joint involvement was akin to a brotherhood - with a level of fraternal trust and commitment founded thereon. The disjoined 'buyer' characterisation was considerably modified by the reality of the evidence before the jury. Tong once characterised it thus: 'It's inside people delivering to inside people'.
Nguyen's receipt of poor quality heroin from the first consignment resulted in complaints to him from third parties, and returns of the product to Nguyen. Nguyen reported these developments to Ong describing the heroin as 'ours' being 'out', in contrast to higher grade heroin supplied by others. Nguyen did not, however, demand a refund of monies previously advanced. On the contrary, in the same conversation Ong asked Nguyen to provide additional capital ($10,000) and Nguyen undertook to do so, if he was able. The pure independent 'buyer/seller' dichotomy was subordinate to a more consensual and co-operative on-going criminal association.
Evidence established that Nguyen was prepared - on several occasions - to provide substantial capital to Ong and Tong at short notice at all hours of the day. Nguyen thereby provided a cash lifeline to those involved in the business - reference never being made to repayment, assuredly in consequence of the expectation that preferred buyer status would result in priority access to the heroin when it eventually became available.
Nguyen was aware of the involvement of persons with whom Tong must deal in order to supply heroin into Melbourne. The numerous reported delays in the expected delivery of heroin throughout June until early August made it self-evident that Tong was not in ultimate control of the timeframe for supply. For example, on 6th June at 11.43 p.m., Ong in conversation with Nguyen claimed to have just met with Tong. Heroin that had been expected to arrive on 5th June had failed to appear. Ong told Nguyen that he had told Tong to 'hurry up the other side … to see what's happening.' Nguyen replied 'Try your best man, otherwise we'll be dead'.
When the second consignment of heroin did finally arrive on 12th June, physical delivery of the whole consignment was made to Nguyen by Ong and Vuong at a home in Footscray. Nguyen had previously indicated a preparedness to take delivery of 'the lot' or at least 'ten'. The price ultimately paid by Nguyen was close to one million dollars - but only $35,000 was said to have been received from him in advance of delivery.
There was evidence before the jury which revealed Nguyen as being part of the group of Tong and others, rather than being separate and remote therefrom.
On 8th July, Ong spoke with Tran (the individual who ultimately played a role in the receipt of the third heroin consignment). Within the context of discussing the continuing indebtedness of Nguyen, Ong remarked 'our work is done on trust … nobody else except us as brothers.'
Previously, Vuong had informed Tong that, in consequence of their arrest on 12th June 1999, she had instructed 'them' to put it away where it was said to be safe. There was evidence that the applicant, Nguyen, was the individual who had taken custody of the whole consignment of heroin from Vuong and Ong, and who had, by the time of Vuong's comment to Tong spoken to Vuong.
Tong, in a telephone conversation on 14th June, informed an unidentified caller about the events of 12th June and described the individual who had taken custody of the heroin as only 'the junior worker'. Tong continued, saying that 'the junior worker (a Vietnamese guy) came (yesterday)'. (Tong had already been visited by Nguyen by the time of this call, and had by then received in excess of $300,000 in cash from 'the junior worker').
Both Vuong and Tong's evaluation of Nguyen's role and responsibilities - receiving directions from Vuong as to storage, and being described merely as a 'junior worker' for Tong - serves to illuminate the reality of the more fraternal and contributory criminal role played by Nguyen. Whilst he was a preferred buyer collecting and delivering large amounts of cash, he was also actively involved in the business in which Tong and others were engaged. This was to continue. Ultimately, he was to receive a key to the Crown Tower's lifts to enable easier access to Tong.
The commercial relationship involving Nguyen and Tong and others is further illuminated by evidence of later conversations that make clear that this was not merely an arm's length commercial transaction between persons unpossessed of a common design to traffic, as alleged.
Two weeks after the delivery of heroin on 12th June, very substantial amounts of money had been received by Tong from Nguyen (in excess of $900,000). However, some monies remained outstanding and Vuong and Ong spoke with Nguyen regarding the overdue balance. Whilst Nguyen acknowledged the debt, he sought a reduction in price saying 'Okay, as brother and sister, let's sit down to have a talk. I've helped him. In turn, he'd help me back.' Shortly afterwards, Vuong said 'You haven't known me for a long time, but you know I love you as a brother, then you have to love me as a return, right?' Vuong ultimately resignedly remarked 'If you don't want to pay, we've to put up with it.'
Vuong and Nguyen then spoke about the need for greater organization on the next occasion. Vuong stated, among other things, that in addition to safeguarding the boss (Tong) she needed to take care for Nguyen's safety so that 'nothing will happen.' If this was done, 'everyone will become rich, you understand'.
Nguyen suggested that, in future, a storage place for the heroin should be found with restricted access thereto. Ong agreed and Vuong remarked that no one would know of the location, 'except you who go there'.
The conversation continued in this vein over some time, providing evidence from which the jury could properly conclude that this was a joint criminal venture, founded upon mutual friendship and trust with shared expectations of ongoing profit. Vuong referred to them being 'in business together' with the need to replan - a sentiment endorsed by Nguyen.
There was evidence before the jury that tended to confirm that Nguyen's continuing trafficking involvement with Tong and others had relevance to the speed, and extent to which that business could continue to develop.
On 4th July a long conversation was monitored by listening device in Tong's room. Ong, Vuong and Nguyen spoke for some time. Referring to Tong, Ong observed that 'he trusted in us with one million dollars … In return, we've to trust him'.
Vuong, referring to Nguyen still owing some money, stated that Tong should have already departed that night 'to have a talk about another round, if you'd settled with him. He's waiting, waiting, waiting.' Later, in response to Nguyen's enquiry as to the price of the next consignment, Vuong replied that Tong would let Nguyen know 'after he's had a talk'.
In his defensive reply, Nguyen stated that 'in the end, among us, I was left to take care of handling the stuff and collecting money on my own'. Vuong later remarked, 'If I could turn up physically, I'd do the same job as you're doing. I'd make the same profit as you.'
And so, within this conversation,
· Nguyen's financial liability in respect of receipt of the second consignment of heroin was merged with that of both Ong and Vuong.
· Nguyen's failure to provide funds was linked to Tong's delay in returning to Hong Kong to negotiate a further importation.
· The price to be charged by Tong to Nguyen was said to be dependent upon Tong's discussions with others.
· Nguyen's role was explainable in terms of Vuong being unable to perform it.
There was evidence before the jury that established the ongoing interdependence between Nguyen and Tong and others engaged in trafficking.
On 12th July, Nguyen spoke with Ong, Vuong and Tong. Upon Tong enquiring whether Nguyen was then 'working', Nguyen replied 'Yeah. I work, if you work'.
Vuong stressed the need for Nguyen to keep them advised regarding his whereabouts, irrespective of whether he was in debt, or whether he was in possession of money.
Nguyen stressed the need for them to be very careful - or 'we'll be fucking dead meat'."
The evidence against Lao and linking him with the Tong Group was similarly outlined:
"Lao was fully aware that Tong's ability to arrange the ongoing supply of heroin to Melbourne depended upon the procurement and provision of funding from third parties whose liquidity, in turn, depended upon the state of the market within Melbourne.
There was evidence wherefrom the jury could properly conclude that, from the outset, Lao's role as an ongoing supplier to Tong into Melbourne was linked to, and dependant upon
·Tong's capacity to forward, or at least guarantee, funds to Lao;
Which was, in turn, understood by both Lao and Tong, to be linked to and dependant upon
·The liquidity of third parties
Which was, in turn linked to and dependant upon
·The local market performance and sales returns for heroin previously supplied by Lao.
A number of intercepted telephone conversations confirm the interrelationship between Lao's ongoing trafficking activities with Tong, and the progress of the local trafficking of heroin previously supplied by Lao to Tong.
It was the prosecution case that Lao, who was then in Hong Kong, telephoned Tong on 5th May and made enquiry as to whether 'it was viable' recently. Tong reported that it was 'more or less the same' - echoing the frustrations expressed by Vuong to him regarding the quality of heroin that had been supplied by Lao on 1st May. In response to Lao's enquiry as to whether Tong was in a position to help Lao organise 'it that week', Tong replied that 'His (referring to an unnamed third party) … current situation is still just fair. The news is not good.'
On 8th May, Lao called Tong again and asked how things were. Tong replied 'tied up like a crab', 'completely stagnant', 'it cannot move'.
On 13th May, Lao called Tong. He immediately asked 'is it convenient lately?'. Tong replied 'more or less the same' (the exact words that he had used to Lao on 5th May). Lao asked whether Tong had organised 'that matter' for him. Tong replied 'that side, not yet, as I have said, it is now remaining stagnant. Always asking for taking back.' Lao replied 'Fuck'. Later, when discussing what assistance Tong might be able to provide to Lao, Tong stated 'I will try to be as quickly as possible. I have already kept pressing them frequently, but everything is stagnant.'
On 16th May Lao telephoned Tong and asked 'What's up with them?' Tong replied 'there isn't any loss or gain. It's about the same …. He/she all the time … just put it there and it does not move…. Stopped and remaining stationary completely. It is not viable. The people are playing various tricks…. It would be organised, if it could be organised…. But there is no way to do it, so what can be done?' Lao replied 'If I knew earlier, I should have given it to someone else… Obviously losing money, you are aware of it.'
On 22nd May Lao telephoned Tong and again asked 'Is it okay lately?' Tong replied 'It's the same'. Lao asked again, later 'Is it viable lately?' Tong again replied, as before, 'It's more or less the same'.
There was evidence of considerable 'hands on' personal organisational involvement, superintendence and concern demonstrated by Lao which evidenced his joint agreement and interaction with Tong and others to traffick in heroin as alleged - beyond the asserted role of a remote, disinterested commercial supplier.
There was evidence that showed that Lao personally attended upon Tong in Melbourne in May, July and August. Those attendances were all linked to the supply of heroin into Melbourne. The attendance in July/August was justified by Lao in terms of an endeavour to 'avoid any problem' - (problems having been encountered in June 1999 when Lao remained in Hong Kong).
There was evidence which showed that Tong consulted with Lao regarding strategies for the trafficking of heroin to be delivered to Melbourne, and that Tong, Vuong and Ong all appreciated the necessity and relevance for such consultation to occur.
There was evidence that confirmed that local trafficking plans, previously made by Tong, Ong, Vuong and Tran were changed after personal consultation between Lao and Tong.
There was evidence that Tong felt compelled to provide updated information to Lao in relation to trafficking related events occurring in Melbourne - on occasions, secrecy being safeguarded by his wife being despatched to Hong Kong to do so face to face.
There was evidence that Tong supplied Lao with a mobile telephone - previously procured in a false name - upon Lao's arrival into Melbourne in July.
There was evidence that Tong directed Lao as to which Crown Towers room should be obtained upon Lao's return to Melbourne on 3rd August 1999.
There was evidence that Lao was fully aware of the involvement of Vuong and Ong - at least in so far as their role within the trafficking of heroin in Melbourne. Lao directed Tong to 'hurry up and take tight control' of his side on 3rd June at a time when the delivery of the second consignment was thought imminent.
Similarly, there was evidence that Lao directed Tong to make contact with his local associates in July in order that they might be prepared for receipt of a further consignment of heroin.
There was evidence that Lao was concerned for the safety of 'the friends' or 'subordinates', Vuong and Ong after the events of 12th June, 1999.
There was evidence that Lao suggested that Tong should 'slip away' after the events of 12th June - but that Tong should inform Lao of his whereabouts in order that he (Lao) might 'report back'.
There was evidence that Lao had direct links with the courier, Sharon Ly (Man Chai) who took delivery of heroin in Sydney in June 1999. The evidentiary linkage commenced in April 1999. Sharon Ly was said to be the daughter of Ong and was linked to Ong's estranged wife.
There was evidence that Sharon Ly (in Sydney) received directions concerning the collection and delivery of heroin both from Lao (in Hong Kong) and from Ong (in Melbourne).
There was evidence that Lao endeavoured to make contact with the courier, Sharon Ly, after the events of 12th June 1999. Lao furthermore directed Tong to make contact with Sharon Ly. Both were found in possession of her mobile telephone number - Lao's version of the number being encrypted, Tong's being obliterated."
It is evident that an adequate foundation existed for the joint presentation of the applicants on the one count. Clearly, if the jury accepted the Crown contention that Lao and Nguyen were acting pursuant to a common design to traffick in heroin with the Tong group during the designated period, the charge would be made out. However, the absence of a finding by the jury of such a common design would not necessarily result in the acquittal of either or both of them. Either could be convicted if it was accepted that the particular individual engaged with the Tong group in the specified, relatively continuous commercial distribution of heroin, during the designated period. Whether that involvement arose as supplier or purchaser of the heroin would be of no consequence at this level. Nor is it likely that, considered on this basis, there would be any significant change in the evidence admissible in their respective trials. The acts and declarations of the various alleged participants would assume relevance in the establishment of the fact and character of the commercial activity alleged and there was clearly "reasonable evidence" independent of those acts and declarations of the participation of each in it. Their joinder in the same count, if the matter was properly put to the jury, would present no issue of principle and raise no question of possible duplicity.
How then did the trial judge charge the jury? After introducing the concept of "common design or joint enterprise"[29] he provided the example of a number of persons who were involved in different ways in the cultivation of a cannabis crop, stating:
[29]Transcript at 2479.
"[A]ll of those who participated in the joint enterprise knowing that it was one producing cannabis for sale are guilty of the crime of trafficking. The one who planted and cultivated the crop would plainly be guilty. The guilt of the others depends upon proof in the case of each one that he or she knew the true purpose of the enterprise. Such a joint enterprise may exist between persons who carry out their part of the common design without knowing the part played by others or precisely by whom, when or where the other parts are to be carried out. The master criminal who organises others to perform different parts of a crime may well keep the details of that organising to himself. Yet all those who know the criminal purpose and perform their assigned role in it are guilty of the crime if it be committed. You will see that in order to be guilty as the person engaged in a joint criminal enterprise three things are necessary. One, the crime must have been in fact committed by someone. Two, the accused must have known of the criminal purpose and agreed to play a part in carrying it out. Three, the accused must have performed an act or acts for the purpose of carrying out a crime.
The common design alleged in this trial is as stated in the presentment, to traffic in heroin throughout the period and at the places stated in the single count.
It is alleged to be an ongoing business conducted by Tong and others. And you have been told that refers to Vuong and Ong during the whole or almost all of the period from 7 April to 3 December.
Before you can convict either of these accused you must be satisfied beyond reasonable doubt that that accused shared with Tong and/or Vuong and/or Ong a common design to commit the offence of trafficking in heroin, as I shall shortly define it to you.
Of course it is alleged that both accused shared the same common design to traffic in heroin. However, in relation to either accused it is not essential for the Crown to establish that that other accused was also guilty of the same offence. It is open to you, as judges of the facts in this trial, to convict one accused and to acquit the other accused."[30]
[30]Transcript at 2480-2481.
Turning to the prosecution allegation against Lao, he instructed the jury:
"The Crown case is that Mr Lao agreed to supply heroin to Mr Tong and knowing that it was to be supplied for the purpose of its distribution, its on-selling in Melbourne.
And thirdly, the accused must have performed an act or acts for the purpose of carrying out the crime. And the Crown here alleges that those act or acts were of course the supply for onward sale of the heroin that has been referred to in these proceedings."[31]
[31]Transcript at 2481.
A little later he instructed them:
"At the end of the day it is for you to consider all the evidence that has been placed before you and for you to decide whether or not Mr Lao, if you accept the Crown allegations as to what actually took place and who was speaking and the sufficient facts in the case, whether or not Mr Lao was in a joint enterprise with Tong and others to distribute heroin in Melbourne, or was he in the role of the Toyota factory proprietor in Japan or the dairy supplying the milk bar, whether his role was in fact too remote from the operation that was said to be conducted by Tong and others in Hong Kong.[32]
…
Now, in this trial the Crown sets out to prove that each accused was engaged in trafficking in the drug in this sense of engaging in a continuous activity of a commercial and systematic kind.
In order to do that the Crown must prove that the accused was knowingly concerned in the commercial movement and distribution of the drug from its source overseas to its consumer. The Crown must prove however one more thing. It must prove that the acts of distribution of the drug were not isolated events but were part of a trade in which each accused was engaged. That each accused was not merely one who sometimes sold drugs, but that he was engaged in a continuous activity of a commercial and systematic kind in relation to the drugs during the whole or at least almost the whole of the period, 7 April to 3 August 1999, as alleged by the Crown. This element of the charge must of course be proved beyond reasonable doubt.
I have already directed you that the case against each accused is to be considered separately. You are to return separate and independent verdicts with respect to each accused.
It is not necessary for the prosecution to establish beyond reasonable doubt that the accused Lao for example, was involved in all aspects of the business carried on by Tong. The Crown case is that Lao is a supplier of heroin to Tong. A supplier who knew and intended that the heroin supplied was to be distributed and sold in Melbourne. The prosecution must establish beyond reasonable doubt that Lao shared that common design with Tong and others to so traffic in heroin, and that he supplied heroin to them and took part in the ongoing business operated by them in furtherance of that intention."[33]
[32]Transcript at 2483-4.
[33]Transcript at 2489-90.
With respect to Nguyen, the judge instructed the jury:
"Nguyen's role is alleged to be the distribution of the supply of heroin provided by Lao and sold on by Tong and others substantially to Nguyen. To establish the charge against Nguyen it is not necessary to prove that Nguyen was involved in the supply by Lao of heroin to Tong. It is sufficient for the Crown to prove its case if it establishes beyond reasonable doubt that Nguyen bought and consequently had possession of the heroin supplied by Lao for the purpose of resale, that he shared a common intent with Tong and others over a substantial part of the alleged period to participate in the continuous business of trafficking in heroin with Tong and others, and that his alleged purchase and possession of heroin were done in furtherance of that common shared intention or purpose."[34]
[34]Transcript at 2492-93.
These instructions were the subject of an objection by counsel for Lao who submitted:
"This case is not whether or not Mr Lao is involved in a business with Tong, Vuong and Ong, and then separately whether Mr Nguyen is involved in a business with Tong, Vuong and Ong. This case is about whether these two people together, with Tong, Vuong and Ong are in the same business.[35]
[35]Transcript at 2499.
…
This case is being put on the basis of a joint offence, one count, one offence, on the basis that these two accused are together in the one business. It must be put on the basis that what is going on between Tong, Vuong and Ong and Nguyen is being done also on the part of Mr Lao because he is party to it all.”[36]
[36]Transcript at 2499.
After discussion the judge then further instructed the jury:
"It is important that you understand that the Crown in this trial is alleging that there was one single business of trafficking in heroin which was conducted. It is the same business throughout. It is said to operate between the dates given, and it is one operation, one continuing business in which it is alleged that Mr Lao was involved, and it is also alleged that Mr Nguyen is involved in that one single operation. It is not suggested and it is not the Crown case that there were two separate businesses in some way being conducted during this period. That Tong and others were taking part in a single business which involved the trafficking in heroin, and it was a business it was not an industry. Obviously industry is an extremely wide term so it was not as an industry, they are not alleged to be involved in the drug industry as it were but in the one single business being operated in Melbourne by Mr Tong and others."[37]
The matter was re-visited at a later point:
"The onus is on the prosecution as I have already directed you to establish that they were involved in the one business of trafficking conducted by Tong and others during a substantial part of the alleged period, and by substantial part I mean within a few days or at least certainly approaching 30 April they were so involved and that single business operated by Tong in which the two accused men were allegedly involved was a continuous, ongoing business until the arrests of 3 August. The Crown must establish beyond reasonable doubt the guilt of an accused during substantially the whole period stated in the count."[38]
[37]Transcript at 2514.
[38]Transcript at 2672.
These instructions were, in my view, adequate in the circumstances and presented with reasonable clarity the issues of fact which arose for determination by the jury and the applicable principles of law. The central complaints advanced by counsel for the applicants in the court below and before us rested, as has been pointed out, upon two basic misconceptions. The first one related to the notion of "business" as considered in Giretti. It was simply not to the point, as was repeatedly asserted in the course of discussion before us, that all were engaged in the activity alleged as an aspect of their separate "business" operations. The other and equally fallacious proposition was that, in a case where the joinder of the two applicants in the one count was entirely appropriate, it was necessary before either of the applicants could be convicted that the prosecution established that he was engaged in a joint enterprise with the other.
As I indicated at the outset, however, I agree that the conviction in each case should be set aside and a retrial ordered.
EAMES, J.A.:
In this case I have had the advantage of reading in draft the judgments of the other members of the Court. I respectfully agree with the conclusions reached by Buchanan, J.A., and with his Honour’s reasons as to the determination of grounds of appeal 10, 11, 12 and 13 of the applicant Laos’ grounds of appeal against conviction. The effect of his Honour’s conclusions on those grounds as to the situation of the
applicant Nguyen’s application for leave to appeal against conviction are explained in his Honour’s judgment. As to the remaining grounds of appeal against conviction filed by Lao, I am unable to agree with the conclusions of Buchanan, J.A. and, instead, I agree with the conclusions and reasons of Vincent J.A. I do, however, wish to add some comments of my own on certain of the issues raised in those grounds upon which the court is divided. In doing so, I gratefully adopt the summary of facts and issues set out in the judgment of Buchanan, J.A.
[57]McAuliffe v. The Queen (1995) 183 C.L.R. 108, at 113-114.
Their Honours further observed that the complicity of a secondary party may be established by virtue of that person counselling or procuring the commission of the offence, or aiding and abetting its commission or by reason of a common purpose shared with the principal offender or with that offender and others. Their Honours added that:
“Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.”[58]
[58]McAuliffe, at 114.
In Johns v. The Queen[59] it was held that it was not necessary for a party to be present at the scene of the crime in order to be acting in pursuit of a common purpose with others who were present. In the present case the Crown case was that the two applicants were principals, and not secondary parties, for reasons which I shall discuss, but it was appropriate to approach the case as one of common purpose/joint enterprise, given the continuous nature of a Giretti offence, occurring over a substantial period of time, with conduct of many people at many different locations.
[59]Johns v. The Queen (1980) 143 C.L.R. 108
Applying those principles to the present case the Crown could prove its case against Lao and Nguyen whether or not it could show that they knew or dealt with each other, and without proving that they had made an actual agreement with each other and with Tong and his cohorts to traffic heroin, and without proving that an understanding or arrangement to traffick heroin over the period was shared by all of them. The jury were entitled to infer that their conduct amounted to such an agreement or understanding to commit the crime of trafficking and that they acted in ways which made them party to the trafficking organised through Tong by virtue of that common purpose.
In my opinion, the presentation of the Crown case as outlined by the prosecutor was appropriately based on joint enterprise principles. Rather than prosecute on the basis of a single joint count the Crown might, instead, have presented separate charges of trafficking as between Tong and Lao, on the one hand, and Tong and Nguyen, on the other, but in doing so the accused might have applied for separate trials. Although I doubt that such an endeavour would have succeeded the Crown could not be sure as to that and it might have been denied the right to conduct a joint trial. If that was the outcome then there would have been a cost in resources and convenience. In two separate trials the Crown might also have been unable to present or rely upon the entirety of the evidence which was available in the joint trial.
In seeking to prove the joint and several participation of the two accused with Tong in the same business over the period of the charge, the Crown was helped in its endeavours by the very fact that it had evidence to establish that the same buyer and supplier was involved on each of the three occasions that heroin arrived in Australia and was handled by Tong, as middleman.
The transcripts of conversations demonstrated that it was open to the jury to conclude that the dealings between Lao and Tong, on the one hand, and Nguyen and Tong, on the other, were not discrete independent transactions but occurred with all parties recognising the interdependent role of Lao and Nguyen (even if their names were not known to all). The dealings were of a continuous nature not only because three separate heroin deliveries occurred but because the evidence showed a keenness on the part of Lao to make further deliveries (as if he was party to a continuing business), and showed the willingness of Nguyen, subject to finance, to accommodate Lao’s desire for further business.
There was an abundance of covertly taped telephone intercepts which the jury could conclude demonstrated an involvement by Lao and Nguyen in a continuing trafficking business conducted by Tong, that involvement being much more than one-off and opportunistic acts of supply by Lao and purchases by Nguyen, but being part of an ongoing business relationship.
I agree with the submissions by Mr Young, counsel for the respondent, that there was a much greater volume of evidence than counsel for the applicants were prepared to concede, which bespoke an understood interrelatedness between Lao and Nguyen, even though they did not know the identity of each other. The fact that parties to a joint enterprise might not know each other’s identity is no barrier to conviction[60].
[60]See R. v. Clarke and Johnstone, at 653. As the court there held, at 652, the application of joint enterprise principles might implicate a financier and marketeer of a criminal venture, those being persons who might otherwise remain in the background.
In my opinion, the verdicts against both Lao and Nguyen were not unsafe and unsatisfactory. I reach that conclusion without having regard to the additional factor that neither applicant gave evidence in the case. The fact that they did not give evidence may be taken into account as strengthening the conclusion that it was open to the jury to convict on the evidence before it[61].
[61]See Weissensteiner v. The Queen (1993) 178 C.L.R. 217; R. v. Dolheguy, at [82].
Was a joint charge appropriate?
The Crown case as to trafficking alleged a Giretti continuing business, and that being so the criminal liability of each accused was “by reason of common design”[62]. In Director of Public Prosecutions v. Merriman[63] Lord Diplock held that it was appropriate to charge a number of offenders on a single count on the indictment, and that where:
“a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count or an indictment”.
[62]R. v. Harkness and Others [2001] VSCA 87, at [30], per Callaway, J.A.
[63]Director of Public Prosecutions v. Merriman [1973] A.C. 584, at 607, and see, at 593, per Lord Morris; see, too, Mackay v. The Queen (1977) 136 C.L.R. 465, at 470-471, per Jacobs, J.
A count of trafficking which alleges one offence on a Giretti basis is not bad for duplicity by virtue of the fact that multiple acts are sought to be proved. The jury is merely being invited to infer from those multiple acts that the accused had engaged in the trade or business of dealing in drugs by engaging on a regular and commercial basis in the transmission of drugs from source to consumer[64]. In this case the Crown asserted that the source (Lao) and the wholesaler (Nguyen) were both part of that business in conjunction with Tong, Vuong and Ong.
[64]See R. v. Te [1998] 3 V.R. 566, at 576, per Phillips, J.A., citing Giretti.
In Giretti[65] the meaning to be given to the term ‘traffick’ was said by Crockett, J. to connote a continuing activity, although it might also comprehend a single instance of offending. His Honour referred to the Shorter Oxford Dictionary which included among the meanings of the verb: 'To carry on or trade in, to bring and sell; to deal in; often with sinister implication.' Thus, as Crockett, J. held: “if the case being advanced is that a business was being carried on, that is, that it was a continuing offence, then that is what must be proved to establish the single offence charged in the count”[66]. Therefore, although there might be many individual acts which might each have constituted an offence the Crown could not properly obtain a conviction by proving to jury members (with some, individually, identifying different events as proof of the trafficking or, perhaps, by all agreeing as to one specific event of trafficking) that a single act constituted trafficking; the Crown was obliged to prove a course of continuing conduct over the period of the charge.
[65]At 118.
[66]At 117.
Ormiston J. held that the concept of “trafficking” extended to:
“the carrying on of a trade or business in dealing in drugs or, at the least, a commercial activity in relation to the transmission of drugs from source to consumer. That inference can be drawn from evidence of a sufficient number of transactions by way of sale, delivery or otherwise through the accused, together with such other evidence as will entitle the jury to reach the conclusion that the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and commercial basis during the period of the alleged offence.”
Crockett, J. held that where in the single count one “activity” or “transaction” or “criminal enterprise” was charged then only one offence is charged and it becomes a question of “fact and degree” whether what is charged is indeed a single offence or really constitutes more than one offence. His Honour adopted the words of Lord Diplock in DPP v. Merriman[67], which I have earlier cited[68] as to the factors which might connect the acts so as to establish the offence on a Giretti basis.
[67][1973] A.C. 584, at 607.
[68]See par [90].
In this case counsel for the applicant’s contended that this was an instance where two offences of trafficking were being asserted in the one count and, thus, the applicants may have been convicted for discrete and different instances of trafficking. The jury might have decided that Tong and his cohorts trafficked with Nguyen, but had not decided that Lao was also part of the same activity or criminal enterprise as that engaged in by the others. Lao may have been engaged in a separate enterprise. The count would therefore have been bad for duplicity, so it was submitted[69].
[69]Counsel referred, by way of analogy, to R. v. Gerakiteys (1983) 153 C.L.R. 317, a conspiracy case in which it was held that the Crown, having alleged a conspiracy to defraud a number of insurance companies, proved only that a series of separate conspiracies had been committed, each to defraud only one company, but that case is merely an illustration of the need to look at the scope of the common purpose which is established on the evidence.
Because it was a business which was being alleged, and one having occurred over a long period, the Crown were entitled to lead evidence which tended to show that the activities of Lao and Nguyen, in dealing with Tong, were not isolated episodes of trafficking, but were part of the same business. In Giretti, Crockett, J. held, similarly, that although on a particular count the Crown could only point to two particular incidents of drug trafficking the jury were entitled to have regard to conduct in periods outside the time frame of the charge (for which other charges had been laid) so as to “supply the context in which the two specific acts of trafficking occurred”[70], and thereby to conclude that it was indeed a business of trafficking in which those two acts occurred in the time frame of that charge and not two distinct offences for which two separate charges should have been laid if duplicity was to be avoided.
[70]At 119.
Crockett, J. held that the trial judge should have directed the jury that the essence of the offence was that trafficking was “a concept that involved a continuing crime in the sense that over an identifiable period the accused engaged habitually in the movement of heroin in the course of its progress from source to consumer”[71].
[71]At 119. The concept of trafficking involving movement of drugs “from source to consumer” derives from R. v. Holman [1982] V.R. 471, at 475, per Lush, J.
When a Giretti type offence is alleged the Crown is not relying on proof of individual acts but upon proof of the continuing offence of trafficking over the period. Thus, the jury does not have to be satisfied that each individual instance of trafficking was proved, but must be satisfied that sufficient instances have been proved so as to satisfy the jury that a continuous offence of trafficking occurred[72]. In deciding whether a single joint count should be brought the critical factor is that the acts and activities of the various people to which the Crown refers can be fairly and properly identified as being part of the same criminal enterprise or the one criminal activity[73]. Whilst there may be difficulties in determining the extent of the activities constituted by the trafficking in those circumstances - because it may not be known if the jury found that all discrete incidents of trafficking had been proved - that does not make the charge bad for duplicity[74].
[72]See Giretti, at 129, per Ormiston, J.; Weinel v. Fedcheshen (1995) 65 S.A.S.R. 156, at 171, per Perry, J. The conclusion reached in the latter case appears to have been disapproved by Kirby, J. in Walsh v. Tattersall, at 108, 111 (but approved in the dissenting judgment of Dawson and Toohey, JJ.), but, as noted by Phillips, J.A. in R. v. Te [1998] 3 V.R. 566, at 577, the decision in Giretti, itself, was not the subject of any adverse comment by the Court (see page 108).
[73]R. v. Hamzy (1994) 74 A. Crim.R. 341, at 348, per Hunt, C.J. at C.L. (whilst I note that Kirby, J., in Walsh v. Tattersall (1996) 188 C.L.R. 77, at 109, doubted the practical value of this statement of the test for determining when it would be appropriate to bring a single charge involving multiple acts, it does, with respect, seem to me to be a useful test in the circumstances of the present case).
[74]Weinel v. Fedcheshen, at 172; R. v. Locchi (1991) 22 N.S.W.L.R. 309, at 312-314.. In Walsh v. Tattersall doubt was cast on the former case, and Kirby, J. held that the single charge (for an offence similar to that in Weinel) was bad for duplicity. Locchi (a case involving the ”supply” of drugs) was apparently accepted as an appropriate case for a single count (per Kirby, J. at 108).
A single count of trafficking in heroin is similar to a single count alleging supply of heroin, in that the single offence may be constituted by a series of acts between dates, each one of which might itself have constituted a single instance of the offence, had a separate charge been brought. The Crown case, here, was similar to that in R. v. Hamzy, which involved the offence of supply heroin, and where (to apply the analysis of Hunt, C.J. at C.L.) the Crown sought to prove that the two applicants, in addition to those who pleaded guilty, were engaged in the criminal enterprise of trafficking in heroin (I have substituted “trafficking” for “supply”, with which the court was there concerned)[75].
[75]R. v. Hamzy, at 347.
The evidence of activities and conversations between Tong and others was relevant to prove the very fact that there was a trafficking business being conducted for which Tong and his two associates were the hub. The role of Tong was very similar to the role Samuels, J.A. assigned to the appellant in R. v. Locchi[76], who his Honour described as being “the common link” between various people who had been engaged in the business of supplying heroin, as part of a “team” which was directed by Locchi. In the present case the Crown asserted that the business of trafficking in which Tong was the hub was one which required a supplier and a major purchaser, who were part of the same business as that operated by Tong, and it mattered not that Lao and Nguyen had not met nor knew the identity of each other.
[76]R. v. Locchi, at 313.
In Walsh v. Tattersall[77] Kirby, J. noted the difficulty in determining when it would be appropriate to bring a single count, notwithstanding that multiple acts were covered by it. His Honour accepted that some of the relevant indicia were those stated by Perry, J. in Weinel v. Fedcheshen[78], being the connection of the events in point of time, the similarity of the acts, the physical proximity of the place where the events happened and the intention of the accused persons throughout. It is that last factor which is important here. Similarly, the notion of “common purpose” identified by Lord Diplock in the passage from Merriman, quoted earlier[79], as one of the unifying factors relevant to bringing a single joint count, is of importance here. In R. v. Associated Northern Collieries[80] Isaacs, J. spoke of acts which had the necessary “concurrence of time, character, direction and result” as to lead to the natural inference that they were done in pursuit of the common purpose.
[77]Walsh v. Tattersall, at 108.
[78]At 170.
[79]See par [90].
[80]R. v. Associated Northern Collieries (1911) 14 C.L.R. 387, at 400, cited in R. v. Minuzzo and Williams, at 430.
In his judgment, Buchanan, J.A. concludes that the conduct of Lao and Nguyen relied on by the Crown are separated to such an extent as to place, time and surrounding circumstances as to reflect separate instances of trafficking and not conduct in pursuit of the common purpose of trafficking, which is the assumption on which the one joint charge is predicated. His Honour concludes that the evidence did not disclose a joint offence, being a single instance of Giretti trafficking of which both Lao and Nguyen might be guilty, but, rather, was only capable of establishing two distinct instances of Giretti trafficking. I respectfully disagree.
In my view, for reasons on which I have earlier expanded, the Crown led evidence which was capable of proving a single continuous offence of trafficking, through the middleman, Tong, over the relevant period, in which Lao and Nguyen both participated throughout or for a sufficient part of the period, in each case, to constitute participation in the continuing offence[81].
[81]In my opinion, it is not essential that Lao and Nguyen committed the offence over an identical period, any more than it was necessary that acts constituting conduct of trafficking continued throughout the entire period of the charge: see R. v. Allen, unreported, Court of Appeal (Callaway, J.A., Southwell and Vincent, A.J.A.), 14 December 1995.
It was quite appropriate that Lao and Nguyen were charged jointly with the offence of trafficking but whether they had each committed the offence required the jury to give separate consideration to the evidence as against each of them. In R. v. Hewitt[82] Winneke, P. held:
“[T]he mere circumstance that two persons are charged jointly with committing the one offence does not mean that they both have to be convicted on the basis of pre-concert, nor does it mean that one or both of them cannot be convicted if the evidence discloses a discrete basis for attributing criminal responsibility to each. The presentment filed in this case is sometimes called a “joint presentment”, but that only means that, within the rules of practice, it is permissible for two persons to be named in the one count. In reality the presentment means that each of the offences charged is an individual charge laid against each accused. As Lord Morris of Borth‑y‑Gest said in R. v. Merriman [1973] A.C. 584 at 592:
‘The fact that in one count of an indictment it is set out that A and B wounded C does not warrant the conviction of either A or B unless individual guilt is established. It might be established in different ways. A’s guilt might be proved by showing that with his own hand he wounded C. A’s guilt might be proved by showing that though he did not himself touch C he caused and directed B to do so: or it might be shown that A and B joined together with a common purpose of wounding C so that in effecting that common purpose each was but the accepted agent of the other.’”[83]
[82]R. v. Hewitt [1997] 1 V.R. 301, at 307-308.
[83]At 307-8.
If there were reasons of convenience why a single count was appropriate, a joint trial on a single count in such circumstances undoubtedly also had some disadvantages. One area of potential difficulty related to sentencing of the various offenders. As it is a single, continuing, offence of trafficking committed over a period involving numerous separate acts, many of which might in themselves constitute trafficking, it could prove difficult for the sentencing judge to determine the actual role of any one offender, but if the judge could not determine their respective roles then the judge would be entitled to assume that they were all equally involved. If one of the offenders wanted to contend that his role was minor then he would carry the onus of mitigating his role, and if the judge wanted to assign a more important role then that would be an aggravating factor which had to be proved beyond reasonable doubt[84]. R. v. Harkness shows how a supplier, a distributor and a middlemen may all be involved in one Giretti offence (and the case also demonstrates the approach which might be taken when sentencing).
[84]Harkness, at [30]-[32], see too R. v. Storey [1998] 1 V.R. 359 and The Queen v. Olbrich (1999) 199 C.L.R. 270, at [25].
I conclude that the single joint count was appropriate in this case.
Admission of evidence of acts and declarations of others
The eighth ground of appeal by Lao complains that inadmissible evidence had been received against Lao because there had been no evidence of pre-concert and no proof of a joint enterprise.
The question of the use which might have been made by the jury of the statements and acts of the other parties to the trafficking raises the same issues as those raised on a count of conspiracy[85]. The evidence of acts and words in furtherance of the common purpose which constitutes the crime may be used for all purposes where the judge is satisfied that there was reasonable independent evidence of the participation of the accused in the offence, that is, of the combination or pre-concert for the purpose of the offence[86]. Therefore, if the acts and declarations of the co-accused assert the participation of the accused in the offence the jury may have regard to them for that purpose[87]. On the other hand, if the judge was to conclude that there was no reasonable independent evidence of the accused’s participation, amounting to a prima facie case[88], apart from that contained in the disputed declarations of the co-accused or other offenders, the declarations of those persons could not be used for that purpose, but they may, however, still be relevant and admissible for the purpose of providing circumstantial evidence on which the jury might draw the inference that there was indeed a trafficking enterprise being undertaken[89]. The jury would be obliged to be directed, however, that in those circumstances they could not use the declarations as proof of the participation of the accused (insofar as they constituted an assertion of the participation of the accused in the offence). That restriction would be removed once the judge ruled that there was sufficient evidence of pre-concert to allow the evidence to be used for the further purpose of proving that the accused persons were participants in the joint enterprise/common purpose.
[85]Tripodi v. The Queen (1961) 104 C.L.R. 1, at 6-7; Ahern v. The Queen (1988) 165 C.L.R. 87, at 99.
[86]Tripodi, at 7; Ahern, at 99.
[87]Ahern, at 99.
[88]Ahern, at 100; R. v.Chai (1992) 60 A. Crim. R. 305, at 340.
[89]See the discussion, in the context of a conspiracy count, in R. v. Chai, at 338, and R. v. Minuzzo and Williams, at 430. In a trafficking case, see R. v. Holden (2001) 120 A. Crim. R. 240, at 252. In Tripodi, at 7, it was accepted that apart from the factors there discussed which made the evidence admissible by reference to common purpose there might be other grounds which independently made the evidence admissible.
The decision as to whether there was reasonable independent evidence to permit the use of the material against the accused as direct evidence of his guilt may be taken at the end of all evidence in the trial.[90] In this case there was such independent evidence, in my opinion, constituted by the surveillance of the movements of Lao and Nguyen and the statements captured on tape by investigators which the jury would be entitled to conclude were the voices of those accused. Thus, the intercepted telephone conversations and the further evidence of acts and declarations of others were plainly admissible for all purposes in this case, as there was sufficient evidence of pre-concert with respect to both applicants so as to allow that use to be made of the material.
[90]Chai, at 339.
Did the Crown re-cast its case?
The ninth ground in Lao’s appeal against conviction complains that the Crown, having opened the case as one of joint enterprise, went to the jury on the basis of separate offences of trafficking. The complaint extends to the judge, who was said to have directed the jury in accordance with the changed approach of the Crown. That contention derives from passages of the charge, many of which are set out in the judgment of Vincent, J.A. and which I will not repeat. His Honour told the jury that they must consider the case against each accused separately. He then told the jury that, as to Lao, the Crown had to establish that Lao “shared that common design with Tong and others to traffic in heroin, and that he supplied heroin to them and took part in the ongoing business operated by them in furtherance of that intention”. As to Nguyen, his Honour said that the Crown did not have to show that Nguyen “was involved” in the supply of heroin by Lao to Tong but merely that when Nguyen had Lao’s heroin for re-sale “he shared a common intent with Tong and others over a substantial part of the alleged period” to engage in the continuous business of trafficking “with Tong and others”.
Mr Shirrefs submitted that those directions permitted the jury to find each accused guilty by virtue of them having engaged in a separate trafficking business, with Tong, pursuant to separate agreements, and not by virtue of a joint enterprise formed by a joint agreement between all of Lao, Tong and Nguyen. That amounted to a different case to the joint enterprise case which the Crown had presented until final addresses, so it was said. The problem was exacerbated, counsel submitted, by virtue of the fact that his Honour said that the issue, in each case, was whether Lao and then Nguyen were “involved” in trafficking heroin with Tong.
In my opinion, the arguments of counsel for Lao proceed on a misunderstanding of what his Honour was doing when he directed the jury to consider the case against each accused separately. An indictment charging two persons on the one count is both joint and several[91]. Thus, the jury might conclude that the evidence against one of the accused was not sufficient to prove his guilt of the offence and yet be satisfied as to the guilt of the other accused[92]. For that reason the trial judge had to direct the jury to consider the case against each separately. There can be an apparent incongruity in telling the jury they had to consider the case separately but at the same time telling them that it was a joint offence of trafficking alleged. Such an incongruity had existed on conspiracy charges before the High Court in The Queen v. Darby[93]overturned what had hitherto been the common law position that all co-conspirators had to be convicted or else none could be convicted.
[91]King v. The Queen (1986) 161 C.L.R. 423, at 433, per Dawson, J.
[92]The Queen v. Darby (1982) 148 C.L.R. 668.
[93]The Queen v. Darby, at 677. Murphy, J., at 685, noted that the same incongruity also frequently arose in joint trials which did not involve a conspiracy count.
If in the prosecutor’s final address the Crown did change the basis on which the case had been presented to the jury then that would represent a fundamental departure from a fair trial[94], but in my view there was not such a change in approach. The case remained one based on joint enterprise principles, and the Crown did not put its case on the basis that it was sufficient to prove separate trafficking businesses (as counsel for the applicants asserted had occurred) but focussed attention on the joinder and participation of Lao and Nguyen, in turn, in the same business, by reference to the role of Tong in the conduct of that business.
[94]King v. The Queen, at 432, per Dawson, J.; R. v. Hewitt, at 308, per Winneke, P.
However, even if it was the case that the way the case was finally put represented a change in approach, it was merely a change in emphasis in the presentation of the case, and it could not have taken counsel for the applicants by surprise, nor could it have had any impact on the way the defence cases were presented. It would have occasioned no prejudice to Lao and Nguyen, whose defence was merely to suggest (through cross-examination, and by way of comment during counsels’ addresses) that there were innocent explanations for the highly incriminating words and conduct attributed to each of them.
Certainly, the change in approach (if that be what happened, which I doubt) did not produce a miscarriage of justice.
The Crown alleged that Tong and his cohorts were the hub around which the supplier, Lao, and the principal purchaser, Nguyen, revolved. They were all in the same business together, the distribution of Lao’s heroin. A middleman like Tong, whose role was to connect the supplier and wholesale buyer, was an essential cog in the business which all of them were in. For the reasons earlier discussed, it was entirely appropriate, and no less a case of joint enterprise/common purpose, to direct the jury that Lao would be guilty if they concluded that Lao was engaged in a joint enterprise with Tong and his cohorts to distribute heroin on a continuous basis over the relevant period, and likewise Nguyen. It was not necessary to say to the jury (because it was not a required element of the offence as charged), when putting to them the case against Lao, that they had to also be satisfied that Lao was in the same business pursuant to a common purpose with Nguyen, and then to say, in the case of Nguyen, that he had to have shared a common purpose with Lao, in addition to Tong. Indeed, it would probably have been confusing to the jury to have put the case that way, having told them that they had to consider each case separately, because the answer to the question posed with respect to Lao, if the directions had been as was sought by Mr Shirrefs, would have constituted the answer with respect to Nguyen as well. That, said Mr Shirrefs, is what the joint charge required. For the reasons I have earlier given, I disagree.
Directions
The judge gave directions to the jury concerning joint enterprise and also what he called, variously, “common design”, or “common shared intention or purpose”. When what is alleged is participation in a joint enterprise it may well be unnecessary and confusing to introduce in the Charge the doctrine of “common purpose”. As Hunt, J. noted in R. v. Tangye[95] the Crown need only rely on the doctrine of “joint criminal enterprise” when it can not establish that the accused was the person who physically committed the offence charged, and the Crown need only rely upon the extended concept of joint criminal enterprise based upon “common purpose” when the offence which is charged is not the same as the enterprise which was agreed by the offenders. The latter situation might arise where persons had agreed to carry out a particular offence (often called the foundational offence) but another crime (sometimes called the incidental offence) is then committed, which was one within the contemplation of the accused person as a possible event which might occur in execution of the joint criminal enterprise. In that case the crime is said to be within the scope of the common purpose.[96] In R. v. Stokes and Difford[97] Hunt, J. observed that it was unnecessary to introduce the concept of common purpose when the very offence which was alleged was the one which the parties had combined to commit[98].
[95](1997) 92 A. Crim.R. 545, at 556.
[96]Tangye, at 558, citing Johns, at 130-131, Mills (1986) 61 A.L.J.R. 59, at 59; McAuliffe, at 113-116.
[97](1990) 51 A. Crim. R. 25, at 36.
[98]In R. v. Dolheguy, at [58] Phillips, C.J. observed, as to a murder case in which the violence causing death occurred when all accused were present, it was inappropriate in Victoria that the expression “joint criminal enterprise” should be adopted. The relevant legal concept was “acting in concert”. The practice in New South Wales is to refer to “carrying out a criminal enterprise” rather than “acting in concert”: see Osland v. The Queen, at 343, per McHugh, J., who held that the principles are, nonetheless, identical, whatever term is used.
In this case while there may have been no necessity to introduce the concept of common purpose, the term was used interchangeably with “joint enterprise” or “common design” and was intended merely to focus attention on the need for the Crown to prove that each accused was party to a continuous trafficking enterprise with Tong. The concept of “common purpose” is often applied when the issue is whether the criminal act which was committed was one which had been contemplated by those persons who joined together to commit what was the foundational offence, but that was not a relevant issue here, because the very offence with which the two applicants were charged was the offence which the Crown asserted they had entered an implied agreement or understanding to commit. The use of the phrase, here, caused no difficulty, however, indeed, the phrase “acting in concert” might equally have been used. The real issue, at all times, was whether there had been a joint enterprise.
Hunt, J. in Tangye[99], in passages approved by McHugh, J. in Osland, at 343, set out the following propositions when directing a jury on a “straightforward joint criminal enterprise”, which is what this case was, in my opinion. Hunt, J. held (I omit citations):
“(1)The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2)A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3)A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4)If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”
[99]At 556-557.
For the reasons given by Vincent, J.A. I consider that when they are taken as a whole (and they were quite extensive) the directions given by the trial judge as to joint enterprise were adequate, and the grounds of appeal that complain about the directions in that respect have not been made out.
Conclusion
Save to the extent that the matters addressed above provide any difference in emphasis, I am otherwise in general agreement with the reasons of Vincent J.A. as to those grounds of appeal on which he differs from the conclusions of Buchanan, J.A.
I conclude, therefore, that the grounds of appeal which complain that the Charge was unbalanced, have been made out, as to both applicants, and their convictions should be set aside. New trials should be held.
---
30
0
0