R v Ng

[2002] VSCA 108

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 215 of 2000

THE QUEEN

v.

PHILIP CHEE MING NG

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JUDGES:	WINNEKE, P., BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	20 and 21 May 2002
DATE OF JUDGMENT:	2 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 108

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Criminal law – Conspiracy to import large quantities of heroin – Whether applicant denied constitutional right to “trial by jury” by reason of empanelment of “additional jurors” pursuant to the Juries Act 1967 (Vic.) – ss. 14(2), 14A and 48A.

Evidence – Use of listening device obtained by warrant purporting to be issued under s.219B(5) of the Customs Act 1901 (Cth.) – Whether warrant valid – Whether trial judge correct in applying s.46(1)(b) of the Acts Interpretation Act 1901 (Cth.) to validate warrant.
Evidence – Admissibility of portions of record of interview – Whether answers “voluntary” – Whether judge obliged to exclude answers in exercise of discretion – ss.23G and 23S Crimes Act 1914 (Cth.) discussed.

Conspiracy – Evidence – Sufficiency of evidence of overt acts in relation to particular importations discussed.
Sentence – Parity of sentence with co-offender discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. N.T. Robinson and Mr. C. Moisidis	Director of Public Prosecutions (Cth.)
For the Attorney-General for the State of Victoria (Intervening) For the Applicant	Ms. R.M. Doyle Mr. G.D. Wendler	Victorian Government Solicitor Allan McMonnies

WINNEKE, P.,
BATT, J.A.,
EAMES, J.A.:

1. On 11 July 2000, after a trial lasting nearly four months, the applicant Philip Ng – who is now aged 45 years – was convicted by a jury at the County Court in Melbourne of conspiring with others to import substantial quantities of heroin (in excess of “commercial quantities”) into Australia contrary to s.233B(1)(cb) of the Customs Act 1901 (Cth.).   He was jointly tried with an alleged fellow conspirator, Derek Alan Bowhay, whom the jury acquitted.   A further co-conspirator, Wai Man Li, had pleaded guilty to participation in the alleged conspiracy when first arraigned before the trial judge in March 1998.   He had made admissions as to relevant facts which the judge had before him for sentencing purposes on 11 July 2000.   Following pleas made on behalf of the applicant and Li, the judge, on 4 August 2000, sentenced the applicant to 25 years’ imprisonment with a non-parole period of 20 years;  and sentenced Li to a period of 21 years’ imprisonment with a non-parole period of 16 years.

1. The applicant has applied for leave to appeal against both his conviction and sentence.   Before turning to the grounds of these applications, it is both necessary and desirable for us to briefly rehearse the evidence which it was open to the jury to accept.   In doing so, we will not aspire to canvass all the material which the jury was invited to examine, but sufficient of it to provide an intelligible backdrop to the grounds of appeal which were argued in this Court.

1. The indictment charged that, between 1 April 1996 and 14 October 1996, the applicant, Li and Bowhay conspired together and with Wanchai Khojaranusat (“Wanchai”) and divers other persons to import into Australia narcotic goods consisting of not less than a commercial quantity of heroin.   As we have said, the conspiracy alleged constituted an offence contrary to s.233B(1)(cb) of the Customs Act (Cth.).   In conformity with the decisions in Kingswell v. The Queen.[1] and The Queen. v. Meaton[2], the indictment alleged that the conspiracy was one in which the conspirators agreed to import quantities of heroin exceeding the prescribed commercial quantity of 1.5 kg.   Upon proof of such an offence, the maximum penalty prescribed by s.235(2)(c) of the Act is life imprisonment.

   [1](1985) 159 C.L.R. 264.

   [2](1986) 160 C.L.R. 359.

1. It was the Crown case that the alleged conspirators agreed to periodically ferry into Australia large quantities of high quality heroin from Thailand.   The agreement involved, so it was alleged, the periodic telegraphic transfer to Thailand (and in one instance Hong Kong) of large sums of money either as payment on account of heroin imported or to be imported or as profits derived from the sale of heroin in this country.   Each of the conspirators, on the Crown case, had differing roles to play.   The applicant and Li were the organizers and managers of importation and distribution from the “Australian end”;  Bowhay was the courier employed to oversee the actual importations, or, at least, some of them;  and Wanchai was the person responsible for the transfer of moneys to Thailand, which he did from banks in Surfers Paradise through the agency of students recruited from Bond University.   By these means, so the evidence showed, Wanchai transferred to Thailand more than $2.5 million cash in the period between 1 July 1996 and the end of September 1996.   Specifically the Crown alleged as overt acts of the conspiracy three importations during its existence;  one in August 1996, the second in September 1996 and the third in October 1996.

1. The conspiracy came to an end between 10 and 13 October 1996 when the applicant, Li and Bowhay were effectively caught “red-handed” in the act of importing the October shipment of heroin.   For a period of some months a task-force of Commonwealth police and customs officers and Victorian police officers had been tracking the movements of the applicant, Li and Wanchai.   In September they became aware that Bowhay had entered Australia on 16 September carrying with him, as accompanying baggage, a wooden crate containing 2 Thai-crafted wooden wall plaques, which he had declared to Customs and presented to quarantine officers to check for insect infestation.   He was allowed to enter the country.   It was only after he had departed the country that the task-force discovered the link between Bowhay on the one hand and the applicant and Li on the other.   On 18 September the task-force had observed the applicant drive his vehicle to Li’s premises at Unit 6, 570 Buckley Street, Keilor East.   At the time Li was not in Australia, having left at the end of August for Malaysia and Hong Kong.   The applicant drove into the premises and was later observed to drive from them to a shopping centre nearby where he threw some large cardboard boxes into a “dump-master bin”.   When these boxes were retrieved by members of the task-force, they were found to contain the remains of two wooden wall plaques which had been split in half.   Forensic testing disclosed traces of heroin adhering to the inside surfaces.   Inquiries revealed that they had been brought into the country by Bowhay;  but by the time that knowledge was gained, Bowhay had left the country.   Nonetheless, customs were placed on alert for his re-entry and when he returned on 10 October 1996 he was placed under surveillance.   On this occasion he had with him, as unaccompanied baggage, two crates containing four wall plaques, which he arranged to be forwarded to him at the Savoy Plaza Hotel in Spencer Street.   These plaques were taken, initially, into police custody and carefully opened.   Each was found to contain approximately 6 kg. of compressed heroin of 80% purity.   The police removed most of the heroin;  substituted the bulk with an innocuous substance but replaced small quantities of it in plastic bags;  inserted a listening device into one of the plaques;  and then put them back together for a “controlled delivery”.

1. On the same day as Bowhay had brought the heroin into Australia, namely 10 October, Li had arrived back into the country, albeit on a different flight.   He was met at the airport by the applicant, and the two of them were kept under observation pending the “controlled delivery” to Bowhay at the Savoy Plaza on 12 October.   On that day the crates containing the wall plaques were delivered to Bowhay at the hotel, and later in the evening Li and the applicant arrived to take possession of them.   They were then followed to Li’s premises at 570 Buckley Street, Keilor East where the crates were seen to be  removed and placed into the garage.   The applicant and Li then left the premises in Li’s car and were followed to different places where they were observed to meet with various persons, one of whom was Nezir Nezirovski who, on the Crown case, was a “purchasing contact” after heroin shipments were brought into the country.   After this meeting the applicant and Li returned to the premises at Buckley Street where, through the implanted listening device, they were heard to be opening the wooden wall plaques.   In the early hours of the morning of 13 October the police raided the premises.   The applicant and Li attempted to flee.   The applicant was carrying one of the wall plaques and was found to have in his pocket the transistor listening device which had been in the plaque.   In the premises at Keilor East the police found trappings usually associated with drug trafficking including sets of scales, mobile phones and money.   In a box, police found $279,850 in Australian currency.   When they raided the applicant’s premises at 450 Victoria Street, North Melbourne, they found nearly $600,000 in cash in a suit case.

1. That, as we have said, was the end of the conspiracy.   The applicant, Li and Bowhay were taken into custody.   By this time Wanchai had left the country for his native Thailand, where he remains.   The applicant was interviewed by police after his arrest at the federal police headquarters in Latrobe Street.   He was afforded his “rights” in accordance with s.23G of the Crimes Act 1914 (Cth.), save that the police would not permit him to contact persons other than a solicitor.   During the course of the interview he gave many answers which the Crown alleged were false, as to matters such as his address, his marital status, his occupation, his income and his relationship with Li.   When the police commenced to ask about the events which occurred at Buckley Street where he was arrested, the applicant told them that he had nothing to say and would “wait”:

“until my solicitor come tomorrow and then he can answer everything.   Is that all right?   Because … I have my right not to answer anything.”

The police said that that was his right but said they would continue to ask questions and that if he did not wish to respond, that was “entirely up to [him]”.
The questioning continued.   On some occasions the applicant exercised his right not to answer;  on others he gave answers.    Some of these answers, the Crown contended, were patently false.   At the trial it was submitted on the applicant’s behalf that the police had violated the applicant’s rights by continuing to ask questions after the applicant had informed them that he wished to say nothing further until his solicitor came.   The judge ruled that the whole record of interview should be admitted into evidence.   We will need to re-visit the circumstances of this interview in more detail hereafter when considering the grounds of appeal.

1. Bowhay and Li were also interviewed.   Bowhay, a British citizen who claimed to have been recruited in Bangkok, said that he was totally unaware that the plaques which he carried into the country contained heroin;  and that the fact that he was only being paid £2,000 to carry them in convinced him that, whatever he was carrying (he thought it was currency), it was certainly not narcotics.   That story was good enough to raise a doubt in the jury’s mind.   Li, on the other hand, knew that he had been caught “red-handed” and ultimately pleaded guilty, admitting facts in a prepared statement which was put before the judge for the purpose of sentencing.   Those facts demonstrated that he was a citizen of Hong Kong who had come to this country in June 1996, rented the premises at Buckley Street in East Keilor for the purposes of organizing, from the “Australian end”, the importations of heroin in August, September and October 1996.   He also conceded his knowledge of and relationship with the applicant and Wanchai.   These admitted facts, of course, were no part of the evidence against the applicant.

1. Although the prosecution did not have any direct and physical evidence of a quantity of heroin imported in August, or the courier, or the method of concealment, it nevertheless invited the jury to infer that, as an overt act of the conspiracy which it alleged, there was in fact an importation of heroin in that month.   That inference, so the prosecution alleged, could be drawn from the surrounding evidence including the pattern of money transfers commencing at the end of June 1996, and concluding in mid-September;  the relationship between Wanchai, on the one hand, and Li and the applicant on the other;  the meeting between Wanchai and Li at Collins Mitsubishi on 16 August 1996 in the course of which Wanchai organized a purchase of a new car for Li in a false name, and of a false address – a car to be delivered on 20 August 1996;  a meeting between the applicant and Nezirovski on 18 August, during which the applicant received from him a “package”, and following which he returned to the premises at Edgevale Road, Kew, which the applicant had rented in the name of a company of which he and Li were directors;  the evidence of the meeting between Li and the applicant on the one hand and three Asian males on the other, in Cromwell Road, South Yarra, on 18 August, following which Li and the applicant drove the Asian males to the Novotel Hotel in the city and returned to the premises at Edgevale Road, Kew;  the evidence of the recorded conversations between Li and the applicant at those premises, in which a listening device, in accordance with a warrant obtained, had been placed by the task-force.   The content of the conversations related to the splitting of profits, so the Crown alleged.   The prosecution further relied upon a meeting between Li and Wanchai and another Asian male at the Novotel on 19 August where a calculator and a mobile phone were used;  upon the payment of cash on 20 August to Collins Mitsubishi for the car earlier agreed to be purchased by Li;  and upon the meeting between the applicant and Nezirovski at the Edgevale Road premises on 21 August in which a discussion ensued which, so the prosecution alleged, was a discussion relating to the purchase of drugs, with Nezirovski saying:

“I’ve got 35 grand at home, and a couple of the boys gotta give me 5 each tomorrow.   So I’m going to have 45.   So give us the next one 200 even.”

The prosecution further relied on the fact that, on or about 21 August, Wanchai returned to the Gold Coast where, on that and the following day, he organized for $630,000 in cash to be repatriated to Thailand.

1. The prosecution contended that when this body of evidence was looked at in the context of what was known to have occurred in September and October, and in the context of the fact that Li and the applicant had no other apparent occupation than heroin importers, the jury should be content to infer that there had been a heroin importation in August 1996 notwithstanding the lack of direct evidence of the quantity of narcotics imported in that month or the means chosen to import it.   Indeed the most the prosecution could allege to the jury – and this is what it did – was that the quantity of heroin in fact brought into the country by Bowhay in October (namely a little less than “20 kg pure”) was “at least” the quantity imported during the currency of the conspiracy.

1. It is apparent from the nature of the case made by the prosecution, to which we have adverted, that the evidence led in its support came from a variety of sources and from a large number of witnesses.   There was, for example, evidence from the many investigators who were, or had been, members of the task-force.   There was evidence from persons involved in selling or leasing to the applicant, or companies with which he was involved, premises which – so the Crown alleged – were used by him and others for the purpose of furthering the conspiracy.   We have mentioned the premises at 450 Victoria Street, East Melbourne, and the premises in Edgevale Road, Kew.   But there was also evidence that, in the course of 1996, the applicant had purchased premises at 7 Studley Avenue, Kew, and had paid $400,000 (by eight separate cheques of $50,000 each) for the purpose of doing so.   This was additional to $45,000 which had been paid to the agent as a deposit.   The evidence was that the Edgevale Road premises were leased in the name of a company, Ordosolve Pty. Ltd., in which – so the evidence suggested – both Li and the applicant had an interest.   A listening device which had been authorized by warrant issued by a Federal Court judge on 30 July 1996, was placed in these premises.   Conversations which were recorded, by means of the device, between Li and the applicant and between the applicant and others were introduced into evidence.   Some of  them were in the Cantonese dialect.   Evidence as to their translation was given by an interpreter.   (The validity of the warrant and the true meaning of what was said were the subject of contest at the trial.)   Furthermore, there were many witnesses called to give evidence relating to the surveillance of the conspirators during the relevant months.   Many of their observations, and the significance ascribed to them by the prosecution, were also the subject of challenge at the trial.

1. Sworn evidence was given by the applicant in his own defence.   He also called a number of other witnesses.   It was the applicant’s case that he did not conspire with others, either in 1996 or at any other time, to import heroin into Australia.   He had come to Australia from Malaysia some 20 years before and had applied himself to working in various businesses and to property investment.   In the late 1980’s he had purchased a number of shops in West Melbourne including a “coin laundrette”, a “back-packer” establishment and a “second-hand business”.   Ultimately, he incurred losses in the early 1990’s and, in or about 1992, he established a business of selling vitamins and supplements for race-horses to owners in Malaysia.   Furthermore, he established a business of selling cranes and machinery to industry in Malaysia.   In 1993 he had entered into a joint venture arrangement with the Chinese government to establish a factory to manufacture veterinary products.   These businesses were “going well” late in 1995 when he sold his veterinary business to one Gilbert Chan for $300,000.   Chan was a Malaysian.   This money was paid in cash and was brought in smaller amounts into Australia by friends of Chan.   This accounted for some of the cash found by police at Victoria Street.   He also sold to Chan, in 1996, some machinery for $350,000.   This also accounted for some of the cash found in Victoria Street.   Ordosolve Pty. Ltd., the applicant said, was formed with Li in 1995 to engage in legitimate works of selling and installing “road reflectors”.   It was only when he and his wife separated in 1995 that he needed alternative accommodation and used “Ordosolve” to lease the Edgevale Road premises.   He knew Nezirovski as the owner of a “detergent business” and the meeting which he had with him on 18 August 1996 was for the purpose of looking at a “washing product” sample.   The “package” which Nezirovski was seen to hand to him was full of rags which were for his dogs to sleep on.   He explained the visit to Li’s home on 18 September 1996 as a favour to Li, who was absent from Australia and wanted his mail collected.   He had seen that the garage door was “partly open” and that there were wood, cartons and other debris on the floor which he cleaned up and took to the nearby shopping centre to put in the dump-master.   The applicant said that the property at Studley Avenue, Kew, was purchased as part of an investment venture with people in Malaysia, so that accommodation could be provided for the investors’ children coming to Melbourne to study.   The individual payments of $50,000 which had been used to buy the property came from the investors.

1. The applicant explained the content of recorded conversations at Edgevale Road as having an innocent genesis, mainly related to activities concerned with abalone fishing (and “poaching”) and the detergent and laundry business.   The applicant further explained his presence at the Savoy Hotel on 12 October as a favour to Li.   The applicant said that he did not know Bowhay and that he left Li’s car to collect the package at Li’s request;  and he had no idea what was in it.   He went to Li’s premises in East Keilor at Li’s request because Li said the packages were too heavy for him to unload from the car by himself.   Having unloaded the crates he had agreed to drive with Li to collect Nezirovski in Collingwood and then go on to Kew before driving back to Keilor.   He said he was, by then, feeling unwell and had gone upstairs to rest.   He had later come downstairs to see Li unwrapping “a painting” in the lounge-room.   Li had asked him to assist in taking the “paintings” out to the garage.   As he took one of them out, he saw two unmarked cars come into the driveway.   Because he had been assaulted at night once before, he had panicked and dropped the painting.   He had sought to walk quickly from the direction of his “assailants”.   He realised, only then, that they were police.   He saw something on the ground which a police officer said was in his pocket.   This was the listening device which the applicant claimed not to have seen before.   He said he was taken into the house and advised of his “rights”, which he said he wished to exercise.

1. Various witnesses were called in support of the applicant’s case.   Gilbert Chan said that he came to know the applicant in or about 1987, through his brother.   In 1990 they commenced to do some “investment business” in Malaysia, including property development, importing and exporting vitamin pills and importing abalone with a view to exporting it to Indonesia and Singapore.   Also, Chan said, they exported cranes from Australia to Vietnam and Korea, as well as tractors.   Chan said that, over the years, he had paid the applicant over $1 million.   Chan said that he did not have the documentation which attended the sale of cranes;  but that the applicant would have those documents, including shipping documents.   The applicant’s brother, Tony, gave evidence that, in the early 1990’s, the applicant came to Malaysia to sell abalone, vitamins, horse-feed and cranes.   One, Leonard Heyde, gave evidence that he was a machinery dealer who had met the applicant in or about 1995.   The applicant had endeavoured to obtain his assistance in purchasing abalone and, later, to secure his aid in selling mobile cranes.   Heyde said that he had been in the crane business for 40 years;  and that the applicant knew little or nothing about it.   He did no business with the applicant.   Finally, a Robert Windspear gave evidence that he ran an export business out of Australia and had become acquainted with the applicant in the late 1980’s.   The applicant had spoken to him about the export of abalone but, so far as he could recall, he had never done any business with the applicant.   Windspear had a research company which had developed a “foam product” which did not contain “CFC’s”, and he had spoken to the applicant about exporting that product to Malaysia.   In 1994 the applicant had introduced him to a number of “interested” people in Malaysia but nothing in the way of business eventuated.

1. All of the evidence to which we have referred was fully and fairly summarized for the jury by the trial judge.   Against its background, we can now turn to the grounds of the application for leave to appeal against the conviction.  None of those grounds challenge his Honour’s directions to the jury.   Rather they challenge rulings as to practice, procedure and evidence made during the lengthy trial.   Initially 16 grounds were taken but five were abandoned at the outset of the hearing.   The remaining 11 grounds are as follows:

1.The judge erred in law by holding that s.48A of the Juries Act (Vic.) did not offend one of the essential features of trial by jury, guaranteed by s.80 of the Constitution, namely randomness in the selection of a jury.

2.The judge erred in law by holding that s.48A of the Juries Act (Vic.) did not offend one of the essential features of trial by jury guaranteed by s.80 of the Constitution, namely the right and duty of all jurors [in this case 15] to participate in the verdict unless discharged for reasonable cause.

3.The judge erred in law by holding that, insofar as s.48A permits the reduction of 15 jurors to 12, it did not offend the principle of unanimity guaranteed by s.80 of the Constitution.

4.The judge erred in law by holding that, insofar as s.48A of the Juries Act (Vic.) immunises the foreperson from being balloted out of the jury, it did not offend an essential feature of trial by jury guaranteed by s.80 of the Constitution, namely the equality of each juror’s vote in relation to the verdict.

6.The judge erred in law by holding that the warrant dated 30 July 1999 (sic) was legally valid.   His Honour further erred in law by holding that s.46(1)(b) of the Acts (Interpretation) Act 1901 (Cth.) was applicable to the aforesaid warrant.

7.The judge erred in law in holding that evidence of money in the sum of $2.5 million transferred to Bangkok and Hong Kong from Australia was relevant and admissible.

9.The judge erred in law by holding that all “Questions” from “Question 267” in the record of interview should not be excluded from the evidence.

11.The judge erred in law by ruling as relevant and admissible the evidence of an alleged importation of illegal drugs in August 1996.

12.The judge erred in law by ruling that evidence concerning a person named Nezir Nezirovski was relevant and admissible.

14.The judge erred in law by holding that there had been full compliance, as a matter of law, with ss.14(2) and 14A of the Juries Act (Vic.).

16.The judge erred in law by holding that, to the extent that s.48A(4) of the Juries Act (Vic.) protected the foreman of the jury from being:-

(a)balloted out of the jury;

(b)the foreman’s card not being counted as part of the final ballot;

the applicant has not been afforded his constitutional guarantee for a fair trial, mandated by Ch. III of the Constitution.

Grounds 1-4, 16

1. It has become a familiar feature of appeals against conviction by those charged with “Commonwealth offences”, for the applicant to assert that the trial has miscarried because certain procedures, mandated by the laws of the State in which the trial is conducted, have infringed the applicant’s right to a “trial … by jury” in accordance with s.80 of the Constitution (Cth.). In this case Mr. Wendler contended, both before the trial judge and this Court, that the application of ss. 14(2), 14A and 48A of the Juries Act 1967 (Vic.) (as amended)[3], picked up by ss. 68(1) and 79 of the Judiciary Act 1903 (Cth.), makes provision for a species of trial by jury which is inconsistent with the requirements of s.80 of the Constitution.   The sections – as they stood at the relevant time – read as follows:

   [3]The Act has, since the trial, been repealed by s.92 of the Juries Act 2000, which so far as material commenced on 1 August 2001. We shall for convenience speak of the 1967 Act in the present tense.

Section 14:  Civil and Criminal Juries

“(1)     …

(2)A criminal inquest in the Supreme Court or the County Court is to be tried by a jury of 12 or, where the court makes an order in accordance with s.14A, by a jury of not more than 15.”

Section 14A:  Impanelment of additional jurors

“A court before which a criminal inquest is to be heard may order the impanelment of up to 3 additional jurors in that inquest before the jury is impanelled for any reason that appears to the court to be good and sufficient.”

Section 48A:  Ballot of Jurors where more than 12

“(1)Where more than 12 jurors have been impanelled and remain at any time at which the jury is required to retire to consider its verdict a ballot must be held in accordance with sub-section (2) to reduce the number to 12 before the jury retires to consider its verdict.

(2)A ballot referred to in sub-section (1) must be conducted by drawing at random the number of cards necessary to reduce the number of jurors to 12 from those cards kept apart in accordance with section 48(1).

(3)Subject to sub-section (4), and unless the juror or jurors are, in accordance with sub-section (3A), to return to the jury, and continue as part of it for the continuation of the trial, the juror or jurors whose cards are drawn must be excused and their cards returned to the box for further use unless the Court otherwise orders.

(3A)If the trial is not concluded after the verdict is given (whether because it is not in respect of all accused persons or not in respect of all the counts in the presentment), the juror or jurors whose cards were drawn must then return to the jury, and continue as part of it, for the continuation of the trial.

(3B)A fresh ballot must be held in accordance with sub-section (2) each time the jury is required to consider its verdict.

(4)If the card of the foreperson is drawn, that card is to be kept apart, and another card drawn.

(5)The cards of the 12 jurors including the card of the foreperson  must be kept apart until a verdict has been given or until the jurors are discharged.

(6)Unless the Court otherwise orders the cards of the 12 jurors must be returned to the box for further use.”

1. These legislative provisions, as their form and content suggests, were designed to combat the modern phenomenon of the “mega-trial” where, as a consequence of the sheer length of the trial and complications thereby caused, jurors are “wasted” to the point where the trial has to be aborted because the number of jurors has fallen below the minimum of 10 required to return a verdict (Section 44).   These points were made clear by the Attorney-General who introduced the amendments in 1990, in his second reading speech[4].   All States and Territories in Australia (save New South Wales) have followed suit, and have provided for what are generally described as “additional jurors” or “reserve jurors”;  and for the same or similar purposes for which the provisions were introduced into this State[5].   The provisions so introduced into the legislation of the said States and Territories have, in common, the features that the court of trial has the power to direct or order between 1 and 6 additional or reserve jurors and that the jurors are to be empanelled and sworn as jurors in the manner provided by the legislation.   Each provision is designed to ensure that, at the time when the jury retires to deliberate, there will remain to deliver a verdict the minimum number of jurors (not exceeding 12) which the respective statutes require to deliver a verdict.   In this State it has been conventional to regard 12 jurors as the optimum number to return the verdict in a criminal inquest.   It is the long-standing right of those charged with serious crime to be tried by a jury of 12 persons[6] which underlies these provisions.   The legislation in Tasmania, Queensland, Western Australia and the Northern Territory provides for the empanelment of “reserve jurors” who are designated as such and will take their place on the jury (either in the order of call or by ballot) in the event that a juror dies or is discharged for cause.   When the jury retires to consider its verdict the remaining “reserve jurors” are discharged.   In the Australian Capital Territory, Victoria and South Australia the “additional” jurors are part of the jury - a device aimed at ensuring that all jurors approach the trial on the basis that they may form part of those who retire to deliberate[7].   Thus, if at the time when the jury retires to consider its verdict, more than 12 jurors remain, a ballot is conducted for the purpose of reducing the jury to 12 members.   In Victoria and South Australia the foreperson is excluded from being balloted off.

   [4]Hansard, Legislative Assembly, Juries (Amendment) Bill, 6 September 1990, at p.516.

   [5]See Juries Act 1967 (A.C.T.), s.31A;  Juries Act (N.T.), s.37A;  Jury Act 1995 (Qd.), s.34;  Juries Act 1927 (S.A.), s.6A;  Jury Act 1899 (Tas.), s.39;  Juries Act 1957 (W.A.), s.18.

   [6]Cf. Wu v. The Queen (1999) 199 C.L.R. 99 at 108, per McHugh, J.

   [7]Cf. Hansard, Legislative Assembly, 30 October 1990, pp. 1612, 1613.

1. It is the process now adopted in this State for empanelling additional jurors, and excluding the number exceeding 12 by ballot at the time for retirement (but excluding from the ballot the foreperson), which is at the heart of the applicant’s constitutional argument.   In conformity with the provisions of s.78B of the Judiciary Act, notice was given of the constitutional issues proposed to be raised in this Court by the applicant to the respective Attorneys-General of the Commonwealth and States.   Only the Attorney-General for the State of Victoria has intervened.   Each of the other Attorneys-General has advised that he does not propose to intervene at this stage, subject to re-consideration should the issue ultimately go to the High Court.

1. Thus, the Court has had the benefit of submissions on the constitutional issue raised by these grounds from Mr. Wendler on behalf of the applicant, from Mr. Robinson on behalf of the respondent, and from Ms. Doyle on behalf of the Attorney-General (Vic.).   Because the argument was discrete from the argument on the other grounds and involved submissions from the three parties who had an interest in it, the Court entertained the argument on these grounds in advance of argument on the remaining grounds.

1. The applicant’s grounds of appeal assert that the trial judge was wrong in law in holding that s.48A of the Juries Act (Vic.) did not offend a number of what were submitted to be “essential features of trial by jury guaranteed by s.80 of the Constitution”, namely:

(a)randomness in the selection of the jury (ground 1);

(b)the right and duty of all jurors (in this case 15) to participate in the verdict unless discharged for reasonable cause (ground 2);

(c)the principle of unanimity (ground 3);

(d)by “immunizing” the foreperson from being “balloted off”, the equality of each juror’s vote in relation to the verdict (ground 4).

Further, or in the alternative, ground 16 of the grounds of appeal asserted that, by protecting the foreperson of the jury from the ballot, the applicant had “not been afforded his constitutional guarantee of a fair trial, mandated by Ch.III of the Constitution”.

1. Mr. Wendler, who had appeared for the applicant at the trial, had – early in the trial – foreshadowed to the trial judge that he “might raise a constitutional issue” in the event that a ballot was required and the name of the foreperson was called;  but submitted that the matter would not arise until those events occurred.   The judge, understandably, took the view that it would be undesirable to wait until the end of a lengthy trial to agitate the issue and it was agreed that the issues should be debated, following the giving of notice to the relevant Attorneys-General, on the assumption that the events predicated by Mr. Wendler occurred.   None of the Attorneys wished to intervene at that stage, and submissions were made to his Honour early in May 2000.   His Honour, in a comprehensive ruling delivered on 8 May 2000, concluded that the relevant provisions of the Juries Act (Vic.) did not infringe the constitutional requirements of “trial by jury” mandated by s.80. In the course of giving that ruling, his Honour noted that there had been two previous trials of the accused before him which had aborted for different reasons and that it was by agreement of all counsel that 15 jurors had been empanelled for the current trial as an “insurance” against further mishaps. At the end of his ruling his Honour said that he had ordered the empanelment of 15 jurors “bearing in mind that all counsel sought that 15 jurors be empanelled”. Although his Honour had ruled that the provisions of ss. 14A and 48A of the Juries Act were not incompatible with the “trial … by jury” mandated by s.80 of the Constitution, he nevertheless went on to say that “by their conduct each accused and his counsel have … waived their right to object to what has occurred”.   Although no specific ground of appeal has been directed towards this latter aspect of his Honour’s ruling, it would seem to us that, if the right to the trial by jury which is mandated by the Constitution has been infringed by the provisions of the Juries Act (Vic.), that infringement cannot be waived by an accused person[8].   We should note that Mr. Robinson addressed no argument to the Court on this aspect of his Honour’s ruling, but specifically reserved his right to argue the “waiver point” in the event that the matter proceeds to the High Court.   He, no doubt, did so having regard to the doubts which have been judicially expressed about the question of waiver[9].

   [8]Brown v. The Queen (1986) 160 C.L.R. 171; Cheng v. The Queen (2000) 203 C.L.R. 248 at 270.

   [9]See, per Kirby, J., Brownlee v. The Queen (2001) 75 A.L.J.R. 1180 at 1200 ff.

1. It is against his Honour’s ruling that the provisions of ss. 14A and 48A of the Juries Act (Vic.) are not incompatible with the “trial … by jury” mandated by s.80 of the Constitution, that Mr. Wendler advanced argument to this Court pursuant to these grounds of appeal. His arguments were, of course, advanced on the basis of the events which had in fact occurred at the trial following his Honour’s ruling. After a trial which had lasted nearly four months, in the course of which the 15 jurors empanelled had remained (no juror having died or been discharged for cause), a ballot was conducted in accordance with the provisions of s.48A at the time when the jury was required to retire to consider its verdict. As it happened the “card” of the foreperson was the first one drawn; and that card was “kept apart” in conformity with sub-s. (4) of s.48A and another card drawn. Mr. Wendler submitted that the process, required by the Juries Act, of reducing the number of empanelled jurors to 12 by ballot, but by “protecting” the foreperson, infringed some of the essential and inviolable features of the “trial by jury” which s.80 of the Constitution requires, namely unanimity of verdict[10];  randomness of jury selection[11];  representativeness of the jury[12];  and “equality of voting power on the jury”.   Specifically it was submitted on behalf of the applicant that:

   [10]Cheatle v. The Queen (1993) 177 C.L.R. 541.

   [11]Cheatle, supra;  Katsuno v. The Queen (1999) 199 C.L.R. 40.

   [12]Cheatle, supra;  Kingswell (1985) 159 C.L.R. 264; Brownlee (2001) 75 A.L.J.R. 1180.

·     The legislative “protection” in favour of the foreperson offended the essential feature of randomness of the jury required by s.80.   The imperative of randomness, it was contended, is necessarily infringed if those who are ultimately to determine the fate of the accused comprise one elected juror (the foreperson) and 11 randomly chosen jurors.   In this sense, it was argued that the immunity of the foreperson from the balloting process prevented the final jury from being randomly chosen;

·     The process of “balloting down” a jury of 15 to a jury of 12 offended the constitutional imperative that the jury’s verdict be unanimous;  and also offended the requirement that the jury be representative;

· The implication in the legislation that the foreperson has a “special and superior status” to other members of the jury violates the constitutional imperative of equality of voting power inherent in the “trial … by jury” for which s.80 of the Constitution provides;

·     The balloting process itself offends the imperative that “trial by jury” shall afford all empanelled jurors the “constitutional right” to participate in returning the verdict unless discharged for cause in accordance with s.44 of the Juries Act;

·     To the extent that the Juries Act legislatively “immunises” the foreperson against “balloting off” it breaches the constitutional guarantee, mandated by Ch. III of the Constitution, of a fair trial.

1. Notwithstanding the attractiveness of some of these arguments, we are not persuaded that they are correct.  In recent years the High Court in cases such as Brown (supra), Katsuno (supra), Cheatle (supra) and Brownlee has considered what constitutes the essential characteristics of “trial … by jury” within the meaning of s.80 of the Constitution and has developed a body of jurisprudence as to what those characteristics are.   In its search for those characteristics, the Court has emphasized that regard must be had to “history, principle and authority”, including the practice which governed jury trials at the time of federation, but has noted that the Constitution was an instrument of government “which would need to respond to changing circumstances and conditions over time”[13]. Nevertheless, the Court has identified certain characteristics of trial by jury as “essential” for the purposes of s.80 of the Constitution.   They include:

(a)that the verdict of the jury must be unanimous[14];  and

(b)that the jury be a body of persons representative of the wider community, involving the requirement that the panel of jurors be randomly or impartially selected, rather than chosen by the prosecution or the State[15].

One cannot, however, lose sight of the fact that the search for the essential aspects of “trial by jury” as prescribed by s.80 proceeds in the knowledge that the incidents of procedure attaching to jury trials have never been immutable, but are constantly changing to meet with contemporary standards[16].   Thus it has been held not to be essential that the unanimous verdict must be given by 12 jurors rather than 10;  or that the jury must not be allowed to separate during their deliberations[17].

[13]Brownlee v. R., supra at 1183, per Gleeson, C.J. and McHugh, J.

[14]Cheatle at 552.

[15]Cheatle, supra at 560; Brownlee, supra at 1191; Katsuno, supra at 64.

[16]Brownlee, supra at 1183, 1184.

[17]Brownlee, supra at 1186.

1. As we have noted, it was a central thrust of the submissions made to this Court that the essential characteristics to which we have referred are infringed by the provisions of s.48A of the Juries Act (Vic.), which permit a reduction in the number of empanelled jurors from 15 to 12, by ballot, prior to deliberation, and also “immunise” the foreperson against removal by the ballot.   These procedures, it is submitted, offend the essential characteristics of “randomness” and “representativeness” of the jury because of the immunity which the Act gives to the foreperson.  It is contended that such procedure produces a jury which is no longer “randomly selected” because one of its number cannot be “randomly balloted off”.   Further, it is submitted that to provide to the foreperson of the jury the immunity prescribed is to produce a jury whose members have “unequal status” – a status which violates the imperative of “equality of voting power”.

1. We are not persuaded that the reduction of the empanelled jurors from 15 to 12 by a balloting process, or the immunity granted to the foreperson, violates the characteristics of random selection or representativeness of the jury.   The panel of jurors from which the ultimate 15 were empanelled was randomly chosen from the wider community in accordance with the provisions of ss. 8, 10, 20, 32 and 33 of the Juries Act 1967 (Vic.). Although the Act contemplates that a person’s guilt of an indictable offence will be decided by a jury of no more than 12, s.14A empowers the judge to empanel up to three “additional jurors” as a legislative protection against “aborted trials” and in an endeavour to ensure that the right of the accused to have his guilt determined by 12 persons is preserved. For all purposes, the 15 jurors ultimately empanelled and sworn were randomly selected from the community and were representative of it. In our view the process by ballot which reduced their number from 15 to 12 (itself a random process) did not diminish the randomness, nor the representativeness of the remaining 12 jurors who deliberated. The randomness of the jury which s.80 of the Constitution contemplates is randomness at the point of creation of the panel of jurors from whom the ultimate jury is chosen. It is that randomness in selection of the panel which, in our opinion, invests the ultimate jury with the characteristics which s.80 of the Constitution requires.   Indeed the actual process, which occurs thereafter, through which the ultimate jury is selected (in accordance with the rights of challenge accorded to defence and prosecution) is a process which is calculated to impinge upon the randomness, representativeness and impartiality of the wider panel, as this Court pointed out in R. v. Su & Ors.[18].

   [18][1997] 1 V.R. 1 at 18, 20.

1. Nor, in our view, does the immunity given to the foreperson from the balloting process diminish the randomness or the representative character of the jury who remain to deliberate.  That jury (including its foreperson) is still the product of a random selection process from the wider community and the exclusion of the foreperson  from the ballot does not – we think – compromise the random and representative nature of the twelve persons who remain to deliberate.   In other words, the immunity given to the foreperson cannot deny the fact that he or she, along with the other 11 jurors, was randomly selected and representative of the wider community.   There is no doubt good reason for excluding the foreperson from the ballot.   The foreperson has been selected by the other jurors at the outset of the trial to perform a representative role on their behalf;  a function which the legislature regarded as sufficiently significant to warrant protection at the end of trials which were no doubt contemplated to be lengthy ones.   But the fact that the foreperson is protected from the ballot does not, in our view, lead to the conclusion that the jury is no longer representative of the wider community or has lost the randomness which, to that point, it clearly had.   Furthermore, it seems to us to be an over-statement to suggest that the fact that the foreperson is given immunity from the ballot leads to the result that the foreperson is invested with a special status which violates the imperative of equality of voting power.   The jury remains a “collective” whose verdict must be a unanimous one;  a fact from which it can be implied that the role of the foreperson in the ultimate verdict is no greater and no less than that of the other eleven jurors.

1. It was submitted that the process of reducing the number of jurors from 15 to 12 by the ballot offended the “constitutional right” of each of the jurors to participate in the verdict.   In the course of argument, Mr. Wendler moderated the so-called “right” to an “entitlement”.   However, in our view, the argument cannot succeed, whichever word is adopted.   Jurors who are selected and sworn to try a case, notwithstanding that the accused has been placed in their charge, do not acquire a “right” or “entitlement” to ultimately deliberate.   If it were otherwise, the provisions of the Juries Act which empower the judge to discharge jurors for cause would themselves be a violation of s.80 of the Constitution.   Although Mr. Wendler recognized that a juror who was discharged for good cause pursuant to s.44 of the Juries Act could not insist on his or her “right to deliberate”, he was, as it seemed to us, unable to assign any valid reason for differentiating between such a juror and one who was discharged as a consequence of the operation of the ballot.  

1. As we have previously noted, the primary purpose of s.48A of the Juries Act is to ensure that juries which are empanelled to hear long trials can complete their task without their numbers falling to such a low level that the trial has to be aborted.   In this sense the provision is calculated to ensure that the jury which deliberates upon and delivers the verdict maintains its randomness and representative nature.   Looked at in that light, it is difficult to categorize the provision as offending the concept of “trial by jury” mandated by s.80 of the Constitution;  rather it seems to us that it takes on the character of a procedural provision introduced to accommodate the modern trend of lengthy trials, many of which involve indictable offences against laws of the Commonwealth, and to ensure that those trials can be completed to verdict by the very type of jury which the Constitution requires[19]. The 15 jurors who are empanelled pursuant to s.48A are not empanelled as “the jury” to return the verdict; rather they form a panel of 15 jurors from whom a “conventional” jury of 12 will be chosen, at random, to return the verdict. Accordingly, the process of ballot does not offend the “principle of unanimity” because it is the verdict of the jury of at least 12 persons to whom the Act assigns the task of deliberating and delivering the verdict which, in conformity with s.80, must and will be unanimous.

   [19]cf. Brownlee, supra, at 1209 [147] per Kirby, J.

1. For the reasons which we have already given we do not accept the applicant’s contention that he has not been afforded a fair trial mandated by Chapter III of the Constitution simply because s.48A(4) of the Juries Act protects the foreperson from the ballot.   This ground was based on the same arguments as were put in support of ground 4, namely that the provision was giving an “elevated status” to the foreperson which, in some way, violated the constitutional imperative of equality of voting powers.   As we have already said, we do not accept that such a consequence flows from the preservation of the foreperson’s position on the jury.   It is simply a protection which is designed to perform a utilitarian purpose;  not to give special status in “voting rights” to the foreperson.   Indeed as the judge told the empanelled jurors when asking them to select their foreperson, and explaining that person’s role:

“But the fact that you choose someone to fill that role … does not place that person in any different position to any of the rest of you, because you are all judges of the facts in this case and are all entitled to have your views considered and provided with the same weight amongst all of you when you discuss the case.”  (TX.1691-2).

1. In conclusion on this topic, we should observe that Mr. Wendler did not contend that the provision by legislation to empanel additional jurors was, per se, unconstitutional and contrary to s.80.   Rather it was the removal of jurors by ballot before retirement and the “protection” afforded to the foreperson which offended what he called “the constitutional imperatives”.   Indeed, it had been his submission to the trial judge that he should permit all the sworn jurors to retire to deliberate;  notwithstanding that such a course would have, in the event of conviction, almost inevitably have been attended by an appeal founded upon a contention that the trial had miscarried for non-compliance with the statutory process.   State legislative provisions which seek to protect lengthy trials from being aborted for want of jurors, whether by way of “additional jurors” or “reserve jurors”, will – as we have said – almost as a matter of course attract criticism on the basis that they offend the constitutional guarantee of “trial by jury” given by s.80.   The concept of swearing in “reserve jurors”, who will take their place on the jury – whether by ballot or in order of being sworn – in the event that jurors are discharged, has already been challenged as offending s.80 in Ah Poh Wai v. R.[20] on the basis that it creates a statutory division between “reserve jurors” and those sworn as “deliberative jurors” who, so it is said, are compromised by discussions with those outside their number.   In this case the contention is, in a sense, the converse;  namely that the removal of “additional jurors”, who have been sworn to duty on the panel, by a ballot which exempts one of their number, compromises other constitutional imperatives of randomness, representativeness, unanimity and equality of voting power.   In the long run however, we take the view – and for the reasons we have given – that the State and Territory legislative provisions which cater for “reserve” or “additional” jurors operate in aid of a verdict which is given by a randomly selected and representative jury;  and that this remains so notwithstanding that the foreperson is protected from the ballot.   Accordingly, in our view grounds 1-4 (inclusive) and ground 16 should be rejected.

Ground 14

[20](1995) 15 W.A.R. 404.

1. This ground, being related to the validity of the trial, was argued next. Immediately after the jury of 15 persons was empanelled on 14 April 2000, the twenty eighth day of hearing, Mr. Wendler queried whether an order such as contemplated by s.14A of the Juries Act 1967 had been made. (As we have noted all counsel had since the commencement of the trial on 28 February 2000 agreed more than once that, because of the expected length of the trial and in light of the fact that this was the third trial, a jury of 15 persons should be empanelled.) His Honour said that he did not think that he had made a formal order[21] and then added:

“If it requires me to make a formal order I will, and make it nunc pro tunc, so that it’s quite clear that this is the position, and so far as reasons are concerned, if you wish me to state them, illustrate them briefly.”

Counsel stated that he did not require reasons, but that he was concerned that the order should be made before the jury was empanelled and that, in effect, it had been made retrospectively. The issue raised by counsel for the applicant was argued on the next sitting day. Counsel contended that, since a formal order had not been made before empanelment, the jury of 15 persons had not been validly empanelled and that his client was not receiving a trial according to law. In his submission all that could be done was to discharge the jury and empanel a fresh one. Having heard the prosecutor and, in reply, counsel for the applicant, the trial judge proceeded immediately to give his ruling. He held that it was sufficient if the order contemplated by s.14A could be inferred or was implicit, although it was preferable that an express order be made. His Honour accepted that he had not formally ordered that a jury of 15 be empanelled but, referring to the course of proceedings to date and in particular to his statement to the jury panel prior to empanelment that “the trial in which 15 of you will be empanelled as jurors” concerned the charge which he then read from the indictment, he concluded that there was no doubt that the process contemplated by s.14A was in fact adopted. His Honour was not persuaded that there had been a failure to comply with s.14(2) or s.14A and declined to discharge the jury.

[21]The Associate’s endorsement on the presentment simply records the empanelment of 15 jurors.

1. Provisions for the empanelment of up to three additional jurors in criminal inquests were introduced into the Juries Act 1967 by the Juries (Amendment) Act 1990 with effect from 1 January 1991. As previously stated, by s.14(2) of the Juries Act 1967 as amended by the Act of 1990 a criminal inquest in the Supreme Court or the County Court is to be tried by a jury of 12 or, “where the court makes an order in accordance with section 14A”, by a jury of not more than 15. Section 14A as in force after amendment by the Courts (General Amendment) Act 1995, has already been set out.

1. Before us Mr. Wendler took the same general position as he had taken before the trial judge. He submitted that s.14A mandated a form of procedure that required a formal order by the judge before additional jurors were lawfully empanelled. In his written outline of argument he contended that the judge here had been required to order that there be additional jurors and to state the reason for those additional jurors, but in oral argument he placed, not unnaturally, no reliance on the absence of a statement of the reason. What he submitted was that the judge should have said words to the effect, “I order pursuant to s.14A of the Juries Act 1967 that 3 additional jurors be impanelled”. Such an order, he said, by identifying the section, satisfied the words “where the court makes an order in accordance with section 14A” in s.14(2), on which he relied along with the use of the word “order” in s.14A itself. In answer to a question from the Bench counsel stated that his submission did not go to the extent of saying that a formal order had to be authenticated or otherwise perfected. He then submitted that once objection was made the trial judge was obliged to comply with the Juries Act and, since it was too late to do so at the time the objection was taken before the trial judge, the only course open to the judge was to discharge the jury. The failure of the trial judge to make a formal order of the kind propounded had led to a fundamental failure of procedure going to the root of the applicant’s trial: the jury that was empanelled was a jury constituted otherwise than in accordance with s.14A. Counsel relied on Wu[22], Brownlee[23] and Radju[24] as showing the importance of making formal orders in the context of a jury trial, especially where the relevant legislation demands that such orders be made. 

   [22]At paras.[8], [31], [76] and [103].

   [23]At paras.[156] and [191].

   [24](2001) 53 N.S.W.L.R. 471.

1. For the respondent a number of submissions were made in the alternative.  Though variously expressed, essentially they were that no formal order was required;  that in any event an order had impliedly  been made before empanelment;  that an order could be made retrospectively after empanelment and, if that was necessary, it had been done here;  that there was no high degree of need to discharge the jury since any failure to make a formal order was a mere irregularity, corrected in any event before the applicant was placed in the jury’s charge, and a fundamental failure of procedure vitiating the trial did not result.  In support of the submission that it was open to the judge to make a retrospective order after empanelment the majority decision in Emanuele v. Australian Securities Commission [25] was cited.

   [25](1997) 188 C.L.R. 114.

1. Numerous provisions in the Crimes Act 1958[26], the Evidence Act 1958 and the Juries Act 1967[27] authorise the making of orders or the giving of directions or the granting of leave for the taking of a certain step during the course of a criminal jury trial.  It may be that as a general rule, though not a universal one, the word “direct” is used where the curial command relates to a less significant matter.  It is not the practice in Victoria for orders made and directions given before verdict in a criminal jury trial to be authenticated or otherwise formally drawn up and signed or sealed.[28] Suppression orders made under s.18 of the Supreme Court Act 1986 or s.80 of the County Court Act 1958 constitute an exception, necessitated by the terms of those sections. The question raised by the present ground is, as already indicated, limited to oral pronouncement of an order.

   [26]Notably s.372(3) as to ordering a separate trial of a count or counts.

   [27]Besides the provisions now in question, orders during a trial are authorised by, at least, s.13(5), s.45 (as to having a view) and s.48(1) and (2). The giving of directions is authorised by, at least, s.13(2), s.32 and s.44 (as to directing the continuance of a trial with a reduced jury).

   [28]The Rules of the Supreme Court do in fact permit authentication, by signing or sealing in criminal matters;  see Chapter VI, R.1.13(1) and (2).

1. We doubt whether his Honour’s statement to the jury panel after the applicant and his co-accused had been arraigned before them on 13 April 2000 that “The trial in which 15 of you will be empanelled as jurors concerns the following criminal charge” can be considered as an express order under s.14A, as Sully, J. (with whom the other members of the New South Wales Court of Criminal Appeal agreed) was inclined to treat the somewhat more direct statement that “The trial will continue with a jury of eleven members only” in R. v. Privett[29].  We have no doubt, however, from what occurred in the trial up to the commencement of the empanelment of 15 jurors, including his Honour’s statement to which we have referred, that his Honour impliedly or tacitly ordered pursuant to s.14A the empanelment of three additional jurors before the jury was empanelled for reasons that appeared to him to be good and sufficient, being those that had earlier been discussed with and by counsel as already mentioned. His Honour was invited to exercise the power conferred by s.14A. He must have done so, for he made clear his view that such a course was desirable and 15 jurors were empanelled by his Associate while he was presiding. The making of an order in accordance with s.14A was a condition precedent to the empanelling of 15 jurors. The presumption of regularity applies.

   [29][2001] NSWCCA 518 at para. [35].

1. As his Honour himself recognised, it would have been better had he explicitly pronounced an order pursuant to s.14A for the empanelment of three additional jurors: Wu[30], which concerned the power or discretion of a judge in New South Wales to discharge a juror and the further power of discretion to proceed with a jury of less than 12; and Brownlee[31], where, amongst other things, the power to permit, by order, a jury to separate fell for consideration.  But the High Court has recognised in the first of those two cases[32] that orders of the kind there under consideration might be made inferentially or impliedly.  The obiter statements in Wu, for such they were, as to the desirability of explicit orders and the making of orders impliedly or inferentially have been applied by the New South Wales Court of Criminal Appeal in R. v. Radju[33]; R. v. Phan[34] and R. v. Privett.[35]

   [30]Especially at paras.[8], [25], [31], [62] to [67], and [103].

   [31]At paras.[156] and [161].

   [32]At paras.[8], [62], [76] and [103].

   [33](2001) 53 N.S.W.L.R. 471.

   [34](2001) 123 A.Crim.R. 30.

   [35][2001] NSWCCA 518. Numerous other cases can be found where courts have held, or declined to hold, that a particular order was made by implication. Often that is determined as a matter of construction, in the light of any admissible material, of an order that was actually made: R. v. Melbourne Justices; ex parte Warburton Franki (Melbourne) Ltd. [1958] V.R. 84 at 92; Dinch v. Dinch [1987] 1 W.L.R. 252, a decision of the House of Lords, especially at 263; Johnson v. Valks [2000] 1 W.L.R. 1502, C.A., at 1507; Glover v. Glover (1964) 6 F.L.R. 262; Kainhofer v. Director of Public Prosecutions (No.2) (1996) 70 F.C.R. 184 at 186; and In the marriage of Lutzke (1979) 5 Fam. L.R. 553 at 555. Sometimes an implication will depend less upon the terms of the order (if any) actually made and more upon what may be called external factors, including the principle that an order of a superior court should be treated as valid and within jurisdiction if possible: Maher v. Wallace Dairy Co. Ltd. [1984] V.R. 129, F.C., at 133; Murdoch v. Crawford [1986] V.R. 97, F.C., at 98-99; Burns Philp & Co. Ltd. v. Bhagat [1993] 1 V.R. 203, F.C., at 208; Jacobson v. Ross [1995] 1 V.R. 337, FC, at 339. In Malvaso v. The Queen (1989) 168 C.L.R. 227 at 232-233 and 236, on the other hand, the High Court declined to treat the Full Court of South Australia as having by implication granted leave to appeal. None of the cases cited in this footnote apart from the last was, it may be noted, a criminal prosecution.

1. This ground, therefore, fails.

Ground 6

1. The warrant impugned by this ground was one authorising the use of a listening device in relation to a particular person, the present applicant.  Its issue was said to be authorised by s.219B(5) of the Customs Act 1901 (Cth.).  Subsection (1) of that section makes it unlawful for an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics inquiries being made by the agency, a listening device for the purpose of listening to or recording words while being spoken save in three circumstances.  One of those is that the official does so in accordance with a warrant issued under the Division containing s.219B.  By sub-s.(5), where upon application made for the issue of a warrant under the section authorizing the use of a listening device in relation to a particular person, a judge is satisfied by information on oath, amongst other things, that the person has committed, or is suspected on reasonable grounds of having committed or of being likely to commit, a narcotics offence (which includes the offence on which the applicant was presented), the judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the Australian Federal Police or National Crime Authority, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person.  By virtue of sub-s.(6) a warrant under sub-s.(5) may authorise the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of a person anywhere in Australia.  In argument sub-s.(6) was treated, correctly in our opinion, as containing a negative implication[36] that a warrant might not authorize the recording of words spoken outside Australia. 

   [36]Katsuno v. The Queen at 56. Compare Re Wakim; ex parte McNally (1999) 198 C.LR. 511 esp. at 555 and 557 and Gould v. Brown (1998) 193 C.L.R. 346 at 418-426 in the constitutional area.

1. The warrant in question was signed by a judge of the Federal Court on 30 July 1996.  It is headed with a reference to the Customs Act 1901 and is intituled “Warrant Under Subsection 219B(5) in Relation to a Particular Person”. Its first recital refers to the applicant, described as of 450 Victoria Street, North Melbourne, as the particular person and the second recital records that the judge is satisfied of the matters referred to in sub-s.(5), including that the applicant is suspected on reasonable grounds of having committed a narcotics offence. The first of the operative paragraphs of the warrant reads:

“I HEREBY AUTHORISE you to use a listening device

for the purpose of listening to or recording words spoken

by to or in the presence of PHILIP NG, also known as MING NG CHEE, anywhere in”

The words “anywhere in” occur at the right hand end of a line of type.  On the next line is typed the following–

“Australia subject to the following conditions or restrictions:”.

All[37] those words have been crossed out by two horizontal lines and the judge’s initials appear to the immediate left of them. 

[37]The crossing out of “Australia” is not perfect, but the appearance of the line is that the word has been struck out.

1. The warrant issued appears to follow the form prescribed in Schedule 1 to the Customs (Narcotics Inquiries) Regulations as then in force. In the prescribed form the words “anywhere in Australia” come at the end of a line, whilst the expression “subject to the following conditions or restrictions:” begins a new line. It is interesting to note that in the prescribed form, though not in the form presented to the judge, each of those two expressions is preceded by an asterisk referring to a footnote reading, “Omit if inapplicable”.

1. Relying on Ousley v. The Queen[38] counsel for the applicant (and counsel for his co-accused) before the trial judge challenged the validity of the warrant during argument before the jury was empanelled.  It was submitted that the warrant was null and void and of no legal effect because it disclosed jurisdictional error on its face in that it authorised the use of a listening device for the purpose of listening to or recording words spoken anywhere at all.  His Honour held that the task of determining the validity of the warrant was to be confined to scrutinising the words used in it measured against the provisions of s.219B(5) and (6).  Doing that, he held the warrant to be beyond power and a nullity.  However, he went on to hold that s.46(1)(b) of the Acts Interpretation Act 1901 (Cth.) applied to the warrant with the result that the warrant was a valid instrument to the extent to which it was not in excess of power.  It should accordingly be read and construed as authorising the use of a listening device anywhere in Australia, and to that extent was valid.

   [38](1997) 192 C.L.R. 69.

1. Section 46 of the Acts Interpretation Act 1901 (Cth.) provides, so far as material, as follows:

“(1)Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a)unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; and

(b)any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.”

1. It was submitted for the applicant on this application that his Honour had correctly held the warrant to be beyond the powers conferred by s.219B(5), but had erred in holding s.46(1)(b) applicable as the contrary intention clearly appeared on the face of the warrant, for the judge had deliberately struck out words of limitation and thereby revealed an intention to grant a warrant without limit to its geographical ambit and s.46(1)(b), being, it was said, relevant to construction, not to limitation, could not assist.  In short one would be reading back into the warrant the words of limitation which had been deliberately struck out.  As a result of an error of law made by the trial judge concerning the warrant the jury had been permitted to receive a large body of evidence that was inadmissible, it having been illegally obtained, and thereby a miscarriage of justice had occurred.  It was not, however, contended that pursuant to the warrant evidence was gathered of words spoken outside Australia.  For the respondent, on the other hand, it was submitted, first, that the warrant on its proper construction did not operate extraterritorially:  in crossing out the first word, “Australia”, of the line referring to conditions and restrictions the judge had made an obvious slip of the pen rather than intentionally attempting to give the warrant operation beyond the terms of the enabling section.  It was clear that in making the deletion the judge was excluding the imposition of any conditions or restrictions, and was doing nothing else.  In the alternative it was submitted that any purported extraterritoriality was capable of being severed and the warrant remained valid for operation within Australia by virtue of either s.46(1)(b) or common law principles.  In the further alternative it was submitted that, if severance was not possible, the proviso ought to be applied as the admission of the evidence obtained had resulted in no substantial miscarriage in that this Court ought to hold in the exercise of the Bunning v. Cross[39] discretion that the evidence could only have been admitted and further or alternatively in light of the evidence otherwise admissible the applicant had not lost the chance of an acquittal that was fairly open to him. 

   [39](1978) 141 C.L.R. 54.

1. It cannot be doubted, in our view, that the crossing out of the word “Australia” was an unintended slip of the pen and that the judge granting the warrant was not seeking to secure for it an extraterritorial operation, which was not required by the Australian Federal Police in respect of a person described in the warrant as of North Melbourne and which, it would have been immediately obvious to the judge concerned, would have been invalid.  Further, as a result of the deletions the relevant part of the warrant ended, not “anywhere”, but “anywhere in”, an expression needing a word or phrase of place to complete it.  Again, the title of the warrant showed that it was granted under s.219B(5), which is to be read with sub-s.(6) set out earlier.  Finally, on the assumption that the warrant is an “instrument” (a question discussed below and answered affirmatively) the second part of paragraph (a) of s.46(1) makes the Acts Interpretation Act apply to the warrant as if it were an Act, and by s.21(1)(b) of the Acts Interpretation Act it is provided that in any Act, unless the contrary intention appears, references to localities (amongst other things) shall be construed as references to such localities in and of the Commonwealth, the latter word clearly being used in a geographical sense.  It might, however, be countered that the contrary intention appears from the deletion that was made.  Since a warrant is a unilateral document and since the question here is whether the contrary intention appears, it may be that cases concerned with whether, in the construction of contracts, regard can be had to words or clauses deleted from printed or standard forms of contract are not of assistance.[40]  Although the Federal Court judge crossed out the word “Australia”, that, in our view, is insufficient to make apparent the contrary intention referred to in s.21(1) in circumstances where the crossing out of that word was clearly a slip and where the incomplete expression “anywhere in” was left standing.  Even without s.21(1)(b), the same conclusion would probably be reached on ordinary principles of construction of subordinate instruments especially by reading down to avoid an extra-territorial operation:  Montgomery v. Gerber[41]; Taylor v. Harris[42]; and Pearce and Argument, Delegated Legislation in Australia[43].  For these reasons, and particularly that based on s.21(1)(b), we conclude that the warrant can properly be construed as referring merely to anywhere in Australia notwithstanding the deletion of the word “Australia”. 

   [40]The cases are legion, but they are comprehensively reviewed by Ormiston, J. in Centrepoint Custodians Pty. Ltd. v. Lidgerwood Investments Pty. Ltd. [1990] V.R. 411 at 421-425 and by Rogers, C.J. Comm.D. in NZI Capital Corporation Pty. Ltd. v. Child (1991) 23 N.S.W.L.R. 481 at 490-494. In light particularly of what was said by Mason, J. in Codelfa Construction Pty. Ltd. v. State Rail Authority of New South Wales (1982) 149 C.L.R. 337 at 352-353, both of their Honours tentatively, and in the case of Ormiston, J. obiter, considered that regard could be had to the deleted portions. Without purporting to be exhaustive we note that subsequently the Queensland Court of Appeal has taken a like view: Postle v. Sengstock [1994] 2 Qd.R. 290.

   [41][1907] V.L.R. 428, though there context was decisive: 431.

   [42][1953] V.L.R. 105.

   [43]2nd edn., paras.[29.11] and especially [30.14].

1. Since the warrant was a document that conferred extraordinary powers and immunities, in case our conclusion is incorrect we move to consider the other contentions of the respondent in support of validity.  In doing so we proceed on the footing that the warrant is to be construed as being in excess of the power conferred by s.219B(5) and (6) upon the judge granting it.  The first question which then arises is whether, nevertheless, by reason of s.46(1)(b) abovementioned, the warrant was a valid instrument to the extent to which it was not in excess of that power.  Only one argument against the application of that provision was advanced on behalf of the applicant.  This was that there was a contrary intention.  In our view, there is nothing in this point.  The concept of the contrary intention is not expressly mentioned in paragraph (b) of s.46(1), but only in paragraph (a), which is not presently material.  But, even if it be allowed that paragraph (b) may be subject to a contrary intention[44], the contrary intention requisite is one that excludes the operation of the validating principle contained in paragraph (b), and the form of the warrant itself does not manifest such a contrary intention, but, at most, on the hypothesis now made, only an intention that the operation of the warrant should not be limited to Australia.  Such an intention is insufficient, as a moment’s thought will indicate:  instruments which provisions such as s.46(1)(b) partially save frequently evidence a clear intention to go beyond the power of their maker.  In other words, a contrary intention of that kind is necessarily overridden by s.46(1)(b).  We therefore do not accept the applicant’s argument against the application of s.46(1)(b). 

   [44]Andrews v. Howell (1941) 65 C.L.R. 255 at 281.

1. There are, however, in our view, two other matters requiring consideration before it can be held that s.46(1)(b) applies.  The first is whether a judge acting under s.219B is an “authority” within the meaning of s.46(1).  In agreement with the trial judge, we answer that question affirmatively.  A judge in granting or issuing a warrant does not act judicially or legislatively[45], but the judge is a person in authority under s.219B.  The conception of judges as an authority is not novel.  The judges of a court, acting as a collegiate body in making rules of court, were an “authority”, within s.46(1) according to the obiter and not concluded view of all members of the High Court in Harrington v. Lowe[46].  Indeed, s.28 of the Acts Interpretation Act, on which their Honours placed some reliance, refers to the entity having the power to make rules of court as “the authority”. 

   [45]See paragraph [49] below.

   [46](1996) 190 C.L.R. 311 at 328 and 345.

1. The second further matter is whether a warrant granted or issued under s.219B is an “instrument” within the meaning of s.46(1).  Unfortunately, we did not have the benefit of submissions on this far from easy point.  According to Stroud’s Judicial Dictionary[47] an instrument is a writing, and generally imports a document of a formal legal kind.  Black’s Law Dictionary[48] relevantly defines it as “A written legal document that defines rights, duties, entitlements or liabilities, such as a contract, will, promissory note, or share certificate.”  Most helpful perhaps is the following definition in The Oxford English Dictionary[49]:

“5.a.Law.  A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form, so as to be of legal validity.”

Amongst the examples of the word used in that sense is an extract from Trial of the Regicides (1660), where it is used of the warrant for the execution of Charles I.  In Azevedo v. Secretary, Department of Primary Industries and Energy[50] French, J., in holding that a plan of management under the Commonwealth fishing legislation was an instrument within s.46, referred to the definition in The Shorter Oxford English Dictionary, which is the same as that set out above from The Oxford English Dictionary.  Earlier, in Chittick v. Ackland[51] Lockhart and Morling, JJ. had in another context stated that the word “instrument” was a word of wide import and that its meaning was to be ascertained having regard to its context, whilst Jenkinson, J.[52] had considered that the word included a document the making or issuing of which operated as an act in the law.

1. We are not persuaded that the learned trial judge erred in principle in determining that the record of interview was voluntary.  Although that conclusion might not have been one that would have been inevitably drawn by other judges, we can not conclude that it was not open to be drawn by the learned trial Judge.  His Honour held that the applicant knew his rights, and was not intimidated or overborne, in the circumstances of the interview.  The fact is that the applicant did exercise his right not to answer some later questions. 

1. In these circumstances, we conclude that it was open on the evidence for his Honour to have decided that it was a voluntary interview. 

1. The learned trial judge also rejected the application for the exclusion of the evidence in the exercise of a discretion to exclude evidence unfairly obtained, concluding that, in his opinion, apart from the suggestion that the answers after Q.267 were involuntary, no other aspect of unfairness had been identified.  No complaint as to his Honour’s exercise of that discretion has been made before us.  The question before us focussed on the voluntariness of the interview.

1. Counsel for the respondent submitted that even if we had concluded that the answers after Q.267 were not voluntary, there had been no miscarriage of justice. Alternatively, they submitted, there was no substantial miscarriage of justice, and the proviso to s.568(1) of the Crimes Act 1958 should be applied[139]. 

   [139]R. v. Konstandopolous [1998] 4 V.R. 381, at 391-392.

1. Some of the answers in his record of interview after Q.267 were identified in the prosecutor’s final address as being lies which affected the credibility of the applicant.  One issue which was dealt with in the record of interview was the finding of the listening device.  The applicant’s denial in that respect was not made only in the record of interview;  he had denied such a suggestion at the scene of his arrest, and in his evidence the applicant again denied that he had any such device on his person when apprehended by police.  The denials at the scene of his arrest, and in his evidence, that he had ever possessed such a device were said to be lies told in consciousness of guilt, but the prosecutor did not expressly use the answers contained in the record of interview for that purpose.  If the jury had concluded that the listening device was found on the applicant then the denial of that fact in his record of interview could have added nothing to the denial made in his evidence and at the scene. 

1. The evidence against the applicant was overwhelming.  Not only had he been the subject of surveillance over many months, when in company with the co–conspirators, and when handling the wooden crates, his incriminating words had been caught by listening devices.  The opening of the crates in which the heroin was secreted occurred at Buckley Street when the listening device was operating and recorded the voices of two men.  He was one of only two men at the premises at the time.  When caught by police he was holding one of the wall plaques.  He attempted to flee when confronted.  His explanations to the investigators and to the jury for the events which had been observed, and for the words captured by listening devices, were nonsensical.  Although the jury took some three days before delivering their verdict the length of their deliberations was probably due to consideration of the case of the co-accused, who was acquitted, and against whom the prosecution case was very much weaker.

1. It is for the applicant to show that evidence wrongly admitted (if that was held to be the case) caused a miscarriage of justice.[140] The admission into evidence of involuntary answers contained in a record of interview might normally constitute a miscarriage of justice, but the answers in the record of interview after Q.267 did not assume importance in this case. But, even if the latter part of the interview was wrongly admitted, and its admission did constitute a miscarriage of justice, the question arises whether the proviso to s.568(1) would appropriately be applied, on the ground that no substantial miscarriage of justice had actually occurred. In Mraz v. The Queen the test for determining whether a substantial miscarriage of justice had  occurred was stated by Fullagar, J., in an oft-cited passage, as being whether the applicant was deprived of a chance which was fairly open to him of acquittal[141].  In Crofts v. The Queen[142], on the other hand, the majority of the High Court posed the question as being, “can the appellate court say with assurance, that but for the admission of the inadmissible evidence, the conviction was inevitable?”.  In our opinion, even applying that test, having regard to the strength of the Crown case, we can say with confidence that the conviction, here, was inevitable.

   [140]Section 568(1) Crimes Act 1958; see R. v. Gallagher [1998] 2 V.R. 671, at 677-679 per Brooking, J.A. and the cases there cited.

   [141](1955) 93 C.L.R. 493, at 514.

   [142](1996) 186 C.L.R. 427, at 441, citing Glennon v. The Queen (1994) 179 C.L.R. 1, at 8-9; Maric v. The Queen (1978) 52 A.L.J.R. 631 at 635; 20 A.L.R. 513 at 521.

1. Before parting with this ground of appeal, we make a further observation.  Given the fact that this was a third trial, relating to events from 1996, and given the strength of the Crown case, it is somewhat surprising that the prosecution should have pressed for inclusion in evidence of the whole of the record of interview.  As we have made clear, the inadmissibility of the latter part of the record of interview was by no means unarguable.  The prosecutor was taking a considerable risk that the admission of the evidence in the trial might have led to a successful appeal, and possibly another re-trial.  We recognise that many considerations might bear upon a decision by prosecutors to press for the admission of items of evidence which are arguably inadmissible.  In any criminal trial, and particularly in a case where circumstantial evidence is being relied upon, and where the offences are very serious, a decision to press for the admission of all relevant evidence, notwithstanding objection, might seem appropriate.  The decision on the admissibility of evidence is, after all, a matter for the trial judge.  Nonetheless, the admission of evidence which is subsequently held on appeal to have been inadmissible can have a serious impact on the administration of the criminal justice system. That potential consequence should be kept in mind by prosecutors when considering the appropriateness of urging trial judges to admit evidence in such circumstances.

Grounds 11 and 12

1. These two grounds may be taken together.  Before the learned trial judge objection was taken to the admission of evidence with respect to the allegations of the Crown that there had been an importation of heroin in August 1996, and evidence of the movements and activities of Nezir Nezirovski, in August and at later times, being a person who was not named in the presentment as a conspirator but who the Crown alleged was connected with the drug importation conspiracy.  Nezirovski’s movements had been the subject of surveillance in Melbourne in August, and on some occasions his words had been captured by listening devices.   We have referred to some of this evidence in paragraphs [9] and [10] of these reasons, and we will refer to some of it hereafter.

1. Mr Wendler contended that the evidence was too speculative to be admitted and was irrelevant.  Additionally, he contended that the prejudicial effect of the evidence outweighed any probative value.  Counsel for the respondent contended that when the submissions were made to the learned trial judge objection was not, in fact, taken on the basis that the prejudicial effect of the evidence outweighed its probative effect, but no objection was taken to Mr Wendler’s now so contending, and in any event that contention received little attention from Mr Wendler before us.

1. Unlike the situation pertaining to events in August the Crown had direct evidence that heroin had been imported both in September and in October 1996.  In both instances, so the Crown contended, wooden wall plaques were imported in which heroin had been concealed.  In September investigators located remnants of two broken wall plaques and on examination traces of heroin were found on them.  In October investigators detected substantial quantities of heroin concealed in wall plaques which had been imported, and substantially substituted the heroin with white powder, thus allowing a controlled delivery of the plaques to the conspirators. 

1. The Crown conceded to the jury that it had no direct evidence, at all, that heroin had been imported in August.  The Crown’s case was that between April and October 1996 the applicant, Wai Man Li and others, including Wanchai, conspired to import into Australia commercial quantities of heroin, and that pursuant to that agreement Wanchai transferred large sums of money to Thailand and Hong Kong from the Gold Coast.  The Crown contended that the jury could infer that those sums were either profits from heroin importations or advance payments for further shipments of heroin, or both.  It was the Crown case that during the period of the conspiracy to which the charge related three importations occurred, the first of which was in August 1996.  The count of conspiracy to import commercial quantities of heroin did not, however, require the Crown to prove actual importation, at all, or at any time.  The evidence of actual importations, if accepted, was, nonetheless, of obvious importance in proof of the charge.

1. The Crown led evidence of surveillance of the applicant over several days from 18 August 1996, during which time he met Nezirovski several times.  On 18 August Nezirovski handed him a large oblong parcel which the applicant placed in the boot of his car.  The Crown submitted to the jury that that might have been an object containing heroin.  Mr Wendler submitted that this was mere speculation.  The size of the parcel was not consistent with the size of wall panels later used to conceal heroin.

1. The Crown also relied on evidence of meetings, that same evening, between the applicant and Li and of conversations recorded the following day between the applicant and Li which a jury might well conclude were about drugs which had been compressed and about large sums of money referrable to those drugs.  In the conversation reference was made to a person by the description “young man”, who the Crown invited the jury to conclude was Wanchai, and to a person called “the bald headed man” who, the Crown contended, was Nezirovski.

1. The Crown contended that there was evidence which linked the applicant to Wanchai at this time.  On 16 August Wanchai was seen in Melbourne in the company of Li, and as we have said he provided cash for the purchase of a vehicle for Li.  On the Crown case Wanchai had transferred very large sums of money to Thailand from the Gold Coast in early August, part of which the Crown suggested was the purchase price for an importation of heroin.  The Crown also had evidence of the movements of the applicant, and others, in August which activity, whilst not proof in itself of a drug importing conspiracy, might have been regarded by the jury as consistent with such activity. 

1. The Crown also tendered transcripts of other secretly recorded conversations which had been collected over several days in August, including a meeting on 21 August between Nezirovski and the applicant.  During that conversation large sums of money were discussed.  It was open to the jury to conclude that Nezirovski was discussing with the applicant the cost of significant quantities of heroin and the appropriate frequency for importations of the drug.  The Crown alleged that within a day of this discussion Wanchai returned to the Gold Coast and then transferred $630,000 to Thailand.  It was an important part of the Crown case that the applicant, who was in receipt of unemployment benefits, had had access to large sums of money and that approximately $280,000 in cash had been found at the Buckley Street premises after the raid and a search of premises associated with the applicant at Victoria Street, North Melbourne, located a further $600,000 in cash.

1. Of course, the jury might not necessarily have concluded that the conversation between Nezirovski and the applicant bore the interpretation which the Crown suggested.  It was a matter for the jury to assess.  In his evidence at trial the applicant said that the topic of conversation with Nezirovski was the sale of abalone, which was a business interest he said he had. 

1. Evidence relating to Nezirovski was not confined to August 1996.  On 12 October 1996 Li and the applicant were observed leaving the wooden crates, in which substituted white powder was secreted, at the premises in Buckley Street.  They then drove together to various locations and on one occasion were observed to meet with Nezirovski.  Later that night the crates were broken open at Buckley Street and the white powder removed, shortly before the raid on the premises, and the arrest of Li and the applicant. 

1. It is unnecessary to set out the evidence of events in August and of the activities of Nezirovski in more detail.  The learned trial judge summarised the evidence at some length and concluded that the evidence was probative and admissible.  His Honour held the evidence should not be considered in isolation from all other evidence on which the Crown relied in support of the charge.  His Honour carefully analysed authority concerning circumstantial evidence and concluded that the disputed evidence was appropriately placed before the jury.

1. The evidence of events in August concerning the applicant, and of the activities of Nezirovski, went in proof of just some of the hundreds of overt acts relied upon by the Crown in proof of the conspiracy to import heroin between April and October 1996.  The Crown case was based on circumstantial evidence.  The Crown pointed to the associations between the applicant and persons, including Nezirovski, whom the jury could conclude were involved in drug importations in the relevant period.  The Crown pointed, too, to the repatriation of large funds to Asia from Australia, by Wanchai, a student, and the huge sums of money found in the possession of Li and the applicant at the time of their apprehension.  Such evidence was to be coupled with a considerable body of additional evidence, including the direct evidence of heroin importations in September and October 1996.  There was evidence of the applicant’s observed possession and dumping in September of remnants of wall plaques upon which traces of heroin were found;  the finding of traces of heroin in his vehicle;  his collection of the wooden crates and possession of a wall plaque with the substituted white powder, when apprehended in October.  This and other material constituted powerful support for the Crown case that a conspiracy to import commercial quantities of heroin had taken place during the period to which the charge related. 

1. It was not essential to the Crown case to prove that there had also been an importation of heroin in August.  The evidence of events in August may well have been regarded by the jury as incapable, in itself, of proving that there had been such an importation at that time, but the evidence might nonetheless have been regarded as offering support to the contention that there had been a conspiracy to import commercial quantities of heroin during the relevant period.  The circumstances and events of August in which the applicant was involved were merely additional circumstantial facts which the jury could have regard to in determining whether the charge, overall, was proved.  In any case in which circumstantial evidence is important it is open to the jury to decide that some items of evidence placed before them are not consistent with the offence and do not support the offence; it is the function of the jury to make its own assessment of the evidence placed before them.  The fact that the jury might discount some items of evidence does not mean that those items were irrelevant and should not have been admitted.

1. Although Nezirovski was not named in the indictment the charge did allege “divers other persons” as having been conspirators in addition to those named in the indictment.  It was open to the jury to decide that the parcel which was exchanged between Nezirovski and the applicant had in fact been related to an importation of heroin;  it was not mere speculation if they so concluded, having regard to the totality of evidence as to importations in September and October, and the evidence of conversations and activities in August, and in later months, which the Crown led.   

1. Where a charge of conspiracy is sought to be proved by circumstantial evidence the Crown is not confined to leading evidence only of such facts as are capable in themselves of proving the conspiracy[143].  The Crown is entitled to place before the jury a range of facts which in combination are capable of proving the offence beyond reasonable doubt.  If any fact amounts to an indispensable link in the chain of reasoning then that fact will be required to be proved beyond reasonable doubt[144] but, otherwise, the jury is entitled to have regard to all facts, and to discard such facts as they consider not helpful or to be unpersuasive (even when taken with other facts) or inappropriate to be taken into account when determining their verdict.  To apply the distinction identified by Dawson J, in Shepherd (as discussed by Callaway, J.A. in R. v. Kotzmann[145]), the Crown in this case was relying upon proof of guilt being established from an accumulation of detail which constituted strands in a cable;  the Crown was not making use of the evidence relating to August events, and the role of Nezirovski, in a manner which might have constituted any or all of that evidence to be indispensable links in a chain of reasoning which had to be proved beyond reasonable doubt if the charge was to be proved.  Nor, by hypothesis, was any piece of that evidence the sole evidence on the issue to which it was directed.  Mr Wendler sought to examine particular items of evidence in isolation, and to then contend that they were open to innocent interpretations or were incapable of proving the offence or both.  In any case concerning circumstantial evidence few items of evidence would be capable in themselves of proving the offence charged.  It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality.

   [143]Chamberlain v. The Queen [No.2] (1984) 153 C.L.R. 521, at 535; Shepherd v. The Queen (1990) 170 C.L.R. 573, at 580-581.

   [144]Shepherd v. The Queen, at 579, per Dawson, J.

   [145]R. v. Kotzmann [1999] 2 V.R. 123, at 129. Phillips, C.J. and Batt, J.A. adopted that analysis of Callaway, J.A.

1. The evidence concerning the movements and activities of Nezirovski, and of events in August, was properly led on the basis that it was relevant and probative of the conspiracy, when taken together with all of the other circumstantial evidence on which the Crown relied.  There was no basis for excluding the evidence on the ground that its prejudicial effect outweighed its probative effect.  The evidence was not prejudicial, save to the extent that any evidence which is capable of supporting the proof of the Crown case is prejudicial to the interests of an accused person[146]. 

   [146]R. v. Morris (1995) 78 A.Crim.R. 465, at 469

1. In our opinion, his Honour’s rulings on the admission of this evidence were correct, and grounds 11 and 12 are not made out.   The application for leave to appeal against conviction is, accordingly, dismissed.

Sentence

1. The application for leave to appeal against sentence is founded upon the following grounds (excluding ground 6 which was abandoned):

1.The judge erred by failing to take into consideration parity principles when sentencing the applicant.

2.The judge erred by taking into account for the purpose of sentencing the alleged importation in August 1996.

3.The judge erred by stating in his sentencing remarks:

“After conviction, [the applicant] gave to this court his current address as 9/40 Edgevale Road, Kew.   The perpetuation of that is patently a falsehood, given that the premises were leased for a fixed term long since expired.   It once more exemplifies the concern I have about the reliability of anything he has said to the court, absent independent evidence providing corroboration for any fact asserted by [him].”

4.The judge erred in holding that the sum of $600,000 was not, in whole or in part, monies received by the applicant from lawful business activities.

5.That the judge failed to adequately take into account the length of time the applicant had spent in custody before his trial – the two previous trials having been aborted through no fault of his.

6.The sentence is manifestly excessive.

1. We have already noted in paragraph [1] that his Honour sentenced the applicant to a period of 25 years’ imprisonment and fixed a non-parole period of 20 years.   This was a sentence four years in excess of that imposed upon his co-offender Li, who – upon his plea of guilty – was sentenced to a term of 21 years’ imprisonment with a minimum of 16 years.   Mr. Wendler contends that the sentence which his Honour imposed upon the applicant is manifestly and unjustifiably disparate from the sentence imposed upon the co-accused;  and can be seen to be so having regard to certain remarks made by his Honour in the sentencing process.

1. Before considering the individual grounds relied on, it is desirable that we make some general remarks about the character of this offending.   The maximum penalty which the Parliament has fixed for conspiring to import a commercial quantity of heroin is life imprisonment.   The quantities of heroin which were the subject of this conspiracy were many times the “commercial quantity” of 1.5 kg. prescribed by the Customs Act (Cth.).   Based on the quantities found in the October importation, his Honour was bound to regard the applicant’s offending as a very serious example of its kind.   There can be no error in his Honour’s finding that the “significant quantity” imported in October was the “minimum amount of this menacing drug smuggled into Australia pursuant to this conspiracy”.   Furthermore, in the light of the evidence to which we have referred in paragraph [9], we are not prepared to attribute error to his Honour in sentencing on the basis that it was open to the jury to find, and that they had found, that an August importation had occurred.   It was not suggested that his Honour was precluded from having regard to the overt acts of the conspiracy alleged for the purpose of sentencing provided that he was satisfied to the standard required that the acts had occurred and that the applicant had participated in those acts[147].

   [147]Savvas v. The Queen. (1995) 183 C.L.R. 1.

1. It is unnecessary for us to repeat at length what this Court, and other courts throughout Australia, have constantly said;  namely that those who choose to make vast sums of money to enrich themselves at the expense of the health of society’s youth must expect severe punishment if and when they are “brought to book”.   This was, on any view, a conspiracy to import vast quantities of a narcotic substance which is well known for its capacity to erode the otherwise vibrant character of our youthful citizens.   His Honour was entitled to conclude that this applicant was motivated to participate in the conspiracy on account of greed, as demonstrated by the vast amounts of money which were being repatriated by the conspirators to other countries in a clandestine fashion;  and as also demonstrated by the $600,000 found in his possession following his arrest.   His Honour, in our view, was perfectly entitled to find that these moneys were the proceeds of the heroin conspiracy and was not in error in failing to find that the sum – or part of it – was the proceeds of lawful business activities.   His Honour saw and heard the applicant, and those called on his behalf, give their evidence.   Having regard to the whole of the evidence which was before him, it does not seem to us to be surprising that he rejected their evidence suggesting, or calculated to suggest, that the applicant was in possession of large sums of money representing proceeds from lawful business ventures.   Other things being equal, the sentence imposed was, in our view, within the range of sentences open to be imposed for offending of this type and of this magnitude.   Indeed, in this Court it was not contended to the contrary.   This was a case where the prosecution had called for the maximum penalty of “life” imprisonment to be imposed.   His Honour was not prepared to accede to that request although he was prepared to find that both the applicant and Li were “vital members of the conspiracy at a high level in the chain of command”.

1. Mr. Wendler submits that “other things were not equal”.   In particular he submitted that the sentence imposed is unjustifiably disparate from that imposed upon the co-accused Li.   There was insufficient in the material before his Honour, so it was submitted, to warrant the imposition of a sentence upon the applicant four years greater than that imposed upon Li.   Mr. Wendler acknowledged that Li’s plea of guilty, apparent remorse, and enhanced prospects of rehabilitation entitled his Honour to discount Li’s sentence below that imposed upon the applicant, but not to the extent of four years.   In support of this proposition Mr. Wendler submitted that his Honour’s statement that the address the applicant had given, following conviction, of “9/40 Edgevale Road, Kew” was “patently a falsehood” (exemplifying his Honour’s “concern” which he expressed himself to entertain “about the reliability of anything [the applicant] has said to the court”) suggested that his Honour was increasing the applicant’s sentence disproportionately above that imposed on the co-accused as a consequence of the applicant’s plea of “not guilty” and his desire to defend the charge.   Mr. Wendler submitted that this Court should find that such was the case because of his Honour’s ultimate adverse finding that:

“There is patently no remorse demonstrated by you, just as there is no acknowledgment of any wrongdoing by you in respect of this offence.   I make these findings and observations as factors influencing my consideration of the need for deterrence of you personally, and of the question of your capacity for rehabilitation.”

1. Whilst we think that his Honour was making too much of the fact that the applicant was continuing “to claim” his address as the premises in Edgevale Road, we cannot agree that the remark demonstrated the imposition of a sentence upon the applicant which was disproportionate to the level of his criminality or the sentence imposed upon his co-accused.   Nor do we think that his Honour’s remarks concerning the applicant’s lack of remorse, even taken with the “present address” remarks, should lead us to that conclusion.   There may well have been a genuine basis for the applicant giving his address, after conviction, as “Edgevale Road”.   He was, after all, being asked to give some address and, given the fact that his wife had apparently “abandoned” him, he may well have regarded the address which he gave as the “closest thing” which he had to a residential address.   However, as we see it, his Honour was not focussing so much on the response of the applicant to the request for the “present” address as he was on his conclusion that the applicant was, by virtue of his evidence, an inveterate liar who could not be believed upon any topic.   This was a view to which he was entitled to have regard in his sentencing process, and we do not accept that the impugned comment which his Honour made is, in some undefined way, an indication that he has imposed a sentence which is disproportionately in excess of that which was imposed upon Li.

1. Nor, in our view, was there any error in his Honour’s conclusion about the “lack of remorse” demonstrated by the applicant.   His Honour was not reaching that conclusion because the applicant had exercised his rights to put the Crown to its proof[148].   Rather, that conclusion was clearly based on his Honour’s observations of the applicant during his trial, particularly when giving evidence.   Placed in its proper context we cannot accept, as was submitted by Mr. Wendler, that his Honour’s statement:

“There is patently no remorse demonstrated by you, just as there is no acknowledgment of any wrongdoing by you in respect of this offence.”

justifies the inference that his Honour was increasing the penalty imposed upon the applicant because he had defended the charge laid against him.

[148]Cf. Cameron v. R. (2002) 76 A.L.J.R. 382 at 384.

1. The essence of Mr. Wendler’s argument in support of the applicant’s application for leave to appeal against his sentence is that the disparity between the sentences imposed upon the co-accused is manifestly unjust[149].   It is put that a difference of four years between the head sentences and non-parole periods cannot properly be justified simply on the basis of the co-accused’s plea of guilty, his degree of remorse, his previous good character and rehabilitation potential.   It is submitted that, in the circumstances, the difference in penalty is such as to induce in the applicant and informed members of the community a justifiable sense of grievance[150].   As with grounds of appeal which assert that a sentence is “manifestly excessive”, a ground which asserts “manifest disparity” between sentences imposed upon co-accused is not one which can admit of much argument.   It is true, as Mr. Wendler has pointed out, that there was little to distinguish the co-accused in terms of culpability in offending.   Mr. Wendler simply says that the sentence imposed upon Li is some 15% below that imposed on the applicant and the discrepancy cannot be justified by the factors to which we have referred.   He points out that, whilst the co-accused had pleaded guilty, there was no suggestion that he had agreed to give evidence at the trial, although it should be stated that he had co-operated with the authorities to the extent of giving his agreement to a statement of implicating facts which were to be used against him for the purpose of imposing sentence.

   [149]Cf. Lowe v. R. (1984) 154 C.L.R. 606.

   [150]Postiglione v. R. (1997) 189 C.L.R. 295 at 301 per Dawson and Gaudron, JJ.

1. Having given the matter careful consideration, we do not accept the submission that, in the circumstances which the judge identified, there is an unjustifiable disparity between the sentence imposed upon the applicant and that imposed upon his co-accused which would warrant interference by this Court.

1. Finally it was contended that the trial judge had not given sufficient weight, in fixing sentence, to the long period of time which the applicant had spent in custody prior to his trial.   The lengthy period of more than three years could not be attributed to any fault on the part of the applicant, it was submitted.   It was conceded that his Honour had made “some allowance” for this factor;  but that the severity of the sentence imposed should lead this Court to the conclusion that insufficient weight had been attributed to it.

1. We are not persuaded that his Honour’s sentence reflects error of the type suggested.   The “delay factor” was taken into account by his Honour in fixing sentences for both the applicant and Li.   The delay was considerable, as his Honour acknowledged.   It was largely the consequence of the aborted proceedings which preceded the ultimate trial.   It was a factor, as his Honour recognized, which had to be brought to account in fixing appropriate sentences on the co-accused.   For reasons which we have already given, we can see nothing in the sentences imposed on either of the co-accused which suggests to us that his Honour has given insufficient weight to delay.

1. In our view none of the grounds in support of the sentence application have been made out;  and accordingly that application, as well as the application for leave to appeal against conviction, should be dismissed.