R v Nicholas
[2000] VSCA 49
•7 April 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 17 of 1999
| THE QUEEN |
| v |
| DAVID MICHAEL NICHOLAS |
---
JUDGES: | PHILLIPS, C.J., ORMISTON and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25-28 October 1999; 4 November 1999 | |
DATE OF JUDGMENT: | 7 April 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 49 | |
---
CRIMINAL LAW – Drug offences – Appeal against conviction – Possession of trafficable quantity of heroin – Attempt to obtain possession of commercial quantity of heroin.
COURTS and JUDGES – Judges – Disqualification for bias – Reasonable apprehension of bias – Where judge previously advised applicant in unrelated matter – Application refused.
EVIDENCE – Importation of heroin – Controlled operation – Admissibility – Whether preconditions in s.15X Crimes Act 1914 satisfied – Ministerial agreement – Request for exemption from detailed Customs scrutiny – Meaning of “the control of the Customs” in Customs Act 1901 – Goben Pty.Ltd, v. The Chief Executive Officer of Customs (No.2) (1996) 68 F.C.R. 301
EVIDENCE – Warrant – Use of a listening device - Validity – Whether warrant complied with requirements of s.219B Customs Act 1901 – Meaning of “a particular person” in s.219B(5) Customs Act 1901 - Whether want of compliance or illegality required exclusion of evidence for reasons of public policy or unfairness.
EVIDENCE – Admissibility of out of court conversation – Whether reasonable evidence of preconcert.
EVIDENCE – Admissibility of police interview of third party.
EVIDENCE – Application of rule in Browne v. Dunn [1893] 6 R. 67
CRIMINAL LAW – Sentencing - Whether too much weight attached by trial judge to prior convictions – Role of the applicant – R. v. Olbrich (1999) 73 A.L.J.R. 1550
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mrs. J.G. Morrish And Ms. L.A. Taylor | Commonwealth Director of Public Prosecutions |
For the Applicant | Mr. R. Richter QC | Galbally & O’Bryan |
PHILLIPS, C.J.:
ORMISTON, J.A.:
CHERNOV, J.A.:
The applicant, who is aged 59, was convicted in the County Court at Melbourne in November, 1998, of one count of possession of a trafficable quantity of heroin (count 1 on the indictment) and one count of attempting to obtain possession of a commercial quantity of heroin (count 2). These offences, which carried maximum penalties of 25 years’ imprisonment and or a fine of $100,000 (subject to s.235(3) of the Customs Act 1901) and life imprisonment respectively, were alleged to have been committed at Melbourne on 24 September, 1994. The reason why the counts were pleaded as they were was that they related to a “controlled delivery” of heroin imported from Thailand. Upon its arrival in Melbourne the Australian Federal Police (“the AFP”) removed from 24 compressed blocks of powder containing heroin and with a nett weight of 8,389.6 grams, 51.6 grams as a sample. 490.2 grams was repacked for the purpose of the controlled delivery and the balance, 7,847.8 grams was retained by the police. Count 2 related to the entire amount of powder which was found to be 74% pure heroin.
The applicant admitted having been previously convicted in June, 1990, in the County Court at Melbourne, of 22 counts of obtaining financial advantage by deception for which offences he was ultimately sentenced to a total effective term of three years and six months’ imprisonment with a minimum term of two years and six months’ imprisonment.
After a plea for leniency which was conducted over several days and which involved viva voce evidence and medical evidence, the learned judge, on 10 February, 1999, sentenced the applicant to be imprisoned for ten years on count 1 and for 15 years on count 2. Both sentences were ordered to commence on 10 February, 1999, thus making for a total effective sentence of 15 years’ imprisonment. His Honour fixed a non-parole period of ten years and made a declaration as to pre-sentence custody. There was an alleged co-offender, one Lu, against whom informations were laid by the police. However, proceedings against him were discontinued prior to any committal upon the ground that he was mortally ill. The applicant later lodged notices of application for leave to appeal against conviction and sentence pleading a variety of grounds. Those touching convictions and which were argued were:
“1.The learned trial judge erred by failing to find and hold that the Listening Device Warrant dated 23rd September, 1994, and purportedly issued under s219B(5) of the Customs Act 1901 was invalid and that the evidence obtained thereby was illegally obtained.
2.The learned trial judge erred by admitting into evidence the out of Court conversation between the co-offender Lu and the Police Officer Termsrisuk as an exception to the rule against hearsay.
3.The trial miscarried as a result of the admission into evidence of parts of the Police interview of the third party Lu and the subsequent invitation by the Prosecutor in the course of her final address to use the evidence for a hearsay purpose.
...
6.The trial miscarried as a result of the learned trial judge giving the jury a direction in accordance with the rule in Browne v. Dunn in circumstances where it was not required and where the effect was to cause unfair prejudice to the applicant.
7.The learned trial judge erred in finding that the evidentiary preconditions to the operation of s15X of the Crimes Act 1901 were satisfied.
...
The remaining four grounds were abandoned.
Those touching sentence were:
“1.The learned sentencing judge erred by finding as a circumstance of aggravation that the applicant was a principal in the matter and thereby elevating his role to a level that was not supported by the evidence.
2.The learned sentencing judge erred by attributing too much weight to the applicant’s prior convictions, in particular by finding that in each instance the applicant had been motivated by unlawful self enrichment which finding was both contrary to the evidence and to the findings of the Court of Criminal Appeal.
3.The learned sentencing judge erred in that having accepted the medical evidence led on behalf of the applicant to the effect that at the relevant time the applicant was suffering from a significant brain injury and disturbed intellectual functioning, he failed to accord that evidence any weight when considering issues of general and personal deterrence.
4.The sentence imposed on the applicant was, in all the circumstances, a crushing sentence.”
History of proceeding
The applicant’s case has had a considerable history. Prior to the importation of the heroin and the applicant’s arrest the Regional Director of the Australian Customs Service (“the ACS”) granted, on 22 September, 1994, in respect of the proposed importation a Request for Exemption from Detailed Customs Scrutiny on behalf of the AFP which will be set out below. On 23 September, Einfield, J. of the Federal Court of Australia issued two warrants under s.219B of the Customs Act 1901. The first, which was said to relate to “a particular person”, purported to be issued under sub-s.5 of that section and the second, which related to “particular premises”, was issued under sub-s.7 of that section. The applicant was arrested on the same day shortly after 9:30 in the evening and was charged with three offences contrary to the Customs Act 1901. These charges related to an alleged importation, possession and attempted possession of a prohibited import, heroin. As we have said, Lu faced similar charges. The applicant was granted bail on 21 December, 1994. Lu was granted bail on 29 March, 1995. On 10 April, 1995, committal proceedings in relation to the applicant commenced. Those relating to Lu were adjourned to 11 April to enable the Director of Public Prosecutions to consider whether the prosecution against him should continue having regard to his short term life expectancy due to lymphoma. On 11 April, the charges against Lu were struck out. On 12 April, the applicant was committed for trial in the County Court. His bail was continued. On 11 May he applied for the reporting conditions of his bail to be removed following the decision of the High Court in Ridgeway v. The Queen (1995) 184 C.L.R. 19. (Judgment had been given on 19 April, 1995.) His application was granted.
There were various arraignment proceedings in the County Court upon an indictment which then contained four counts. On 27 March the applicant first came before His Honour Judge Crossley who subsequently presided at the applicant’s trial. After various proceedings his Honour, on 27 May, 1996, ordered a stay of the counts on the indictment laid under the Customs Act. This decision was based upon Ridgeway which provoked a retrospective amendment to the Crimes Act (Cth.) which introduced a number of new sections including s.15X, the operation of which will be analysed later. The prosecution sought to rely on the new section and, as a result, further proceedings ensued during which its constitutional validity was challenged. Ultimately, after the proceedings were removed to the High Court pursuant to the Judiciary Act 1903 and a hearing conducted in September, 1997, s.15X was declared by the High Court on 2 February, 1998, to be a valid law and the matter was remitted to the County Court for further hearing: see Nicholas v. The Queen (1998) 193 C.L.R. 173. Trial proceedings commenced on 28 September, 1998, and certain rulings were made by his Honour. Leave was granted to the Crown to file over a fresh indictment containing only the Customs Act counts. On 6 October, the first jury was discharged for reasons not presently relevant.
On 7 October, 1998, a new jury was empanelled. Presentation of the Crown case lasted until 9 November. The defence case commenced on 10 November. The applicant and his wife gave evidence together with three expert witnesses. Counsels’ addresses followed and the jury’s guilty verdicts were returned on 26 November.
Summary of facts
It is necessary to give a summary of the facts relating to the alleged commission of these offences, as well as some of the specific evidence by which the prosecution sought to prove its case. The facts now outlined amount to what in effect the prosecution asserted was the basis upon which it sought and obtained convictions at the trial and may, unless it otherwise appears in this judgment, be accepted as substantially the basis upon which the jury convicted and upon which the judge sentenced the applicant, assuming that the prosecution witnesses were accepted and the inferences asserted by the prosecution were drawn.
So far as is known to the Court, the events commenced on 17 September 1994 when a narcotic investigator, Niyom Termsrisuk, employed by the Thai Narcotic Control Board, took delivery of the 24 blocks of heroin from a person in Chiang Rai in Thailand. To get these blocks he had posed as a courier, having travelled to Chiang Rai for the purpose of obtaining them. The Court was told little, not surprisingly, of the circumstances in which Termsrisuk came to know of the consignment or from whom it was obtained. It was told only that he had received information about a potential drug importation into Australia, with the result that the relevant Australian authorities had been contacted and a decision made that they would co-operate in relation to the importation, in circumstances where obviously Termsrisuk and the Australian officials were complicit in that importation. The circumstances under which controlled importations were made were analysed by the High Court in Ridgeway which held that such importations were illegal and that evidence of them was not admissible. But evidence of the importation of the heroin in the context of a controlled operation was permitted to be adduced under s.15X. That aspect of the trial is the subject of ground 7 which will be analysed later.
Suffice it to say that Termsrisuk made various appointments by phone and took delivery of the heroin. It was contained in a black vinyl Fendi bag which will be referred to later. Having returned to Bangkok he met with Det. Acting Sergeant Proebstl of the AFP who had arrived there on 20 September for the purpose of participating in the controlled delivery. Termsrisuk handed Proebstl the bag containing the 24 blocks.
On 23 September 1994 both Termsrisuk and Proebstl boarded a flight in Bangkok destined for Sydney and thereafter Melbourne. Proebstl carried the bag of heroin but Termsrisuk travelled to Australia with the intention of acting as the courier on arrival in order to detect the intended Australian recipients of the consignment. Proebstl took the bag of heroin through Customs, completing inaccurate declaration forms for the purpose and, in accordance with the exemption granted by the ACS on 22 September 1994 to which reference was made earlier, without interference by Customs officials.
After Termsrisuk arrived in Melbourne he went straight to the Hotel Como in South Yarra and checked into Room 320 under the name Prasait Temasek. At the same time Proebstl went from the airport to AFP headquarters where federal police effectuated a substitution of the heroin by removing all of it except for a sample amount and controlled delivery amounts and repacking the latter into substitute blocks prepared by them. Thereafter each substitute block was repackaged so as to resemble its original form. The street value of the heroin at the time was said to be $12,484,000. Later that day, at about 5.10 p.m. Proebstl and Det. Sgt. Hamilton took a block described during the trial as the "rooster" block (because of a symbol printed thereon) and the other substituted blocks in the black bag to Termsrisuk at his room in the Hotel Como.
Meanwhile Termsrisuk made a number of telephone calls from his room at the Hotel Como on 24 September 1994. It appears that he was seeking instructions about what to do with the heroin. All the telephone conversations were recorded by authorised telephone intercepts or by listening devices which were installed by the AFP. Some of the tapes were played in evidence. In the course of five calls between about 1.29 a.m. and 5.23 p.m. he telephoned a number in Thailand and spoke to a person there, asking for the relevant contact address. He was given a number shortly before 12 noon and spoke to a person in Australia who referred him to a "fat" Chinese male aged between 45 and 50 who would come to see him after he had made contact. Termsrisuk made a number of unsuccessful attempts to contact that person by telephone. Eventually, at about 5.36 p.m. he received a call from one Cjun Khe Lu, which came from a mobile service number connected nearly a year earlier in the name of the applicant at his Malvern address. (The applicant later said in evidence that he had lent Lu the mobile phone because they had had a number of business dealings concerning racehorses in Malaysia.) During the 5.36 p.m. conversation Termsrisuk gave Lu details about the Hotel Como and they arranged to meet in the hotel lobby just before 6 p.m. Lu put a question to Termsrisuk as to how much money he wanted and it was agreed that $2,000 was sufficient.
At 6.01 p.m. the same day Termsrisuk went down to the foyer of the Hotel Como where he met Lu. Inspection of a sample was thought unnecessary but an arrangement was made that Lu would arrange for a Range Rover to come there with "my man" but he would arrive ten minutes before the time of the car's agreed arrival. The question of money was again discussed, $2,000 again being thought sufficient, part being necessary to pay the hotel bill. This conversation and many others was recorded by use of listening devices for which authority had been given by Einfeld, J. as has been mentioned earlier, but that authority is disputed on the basis that, inter alia, the form that the warrant took went beyond that which the Customs Act permitted. This issue will be discussed more fully in the context of analysing ground 1. The 6.01 p.m. conversation will also be further discussed in the context of ground 2, under cover of which it was also argued that the conversation between Termsrisuk and Lu did not take place in the course of carrying out any conspiracy involving the applicant which was proved to be in existence at that time.
The first direct evidence of the involvement of the applicant came from a phone call to him at about 6.15 p.m. by Lu in which he asked the applicant for $2,000 to which the latter immediately said "No worries". (The taxi driver who gave evidence of the terms of the conversation could not, of course, identify the applicant but Lu made the call on the mobile phone lent to him by the applicant and the records obtained from Telstra showed that the call made at that time, as was a later call at 6.19 p.m., was to the applicant's home number.)
The taxi driver had taken Lu to the hotel known as the Chateau Melbourne in Lonsdale Street. There seems to have been no other relevant contact between those involved until about a quarter to nine when federal police officers saw the applicant's Range Rover being driven by him with Lu in the front passenger seat leave the hotel car park in Lonsdale Street. From there they travelled to the Hotel Como. At about 9.01 p.m. Termsrisuk in his hotel room received a phone call from Lu. He confirmed Termsrisuk's phone number and said "We go for dinner now". They arranged to meet in the lobby of the hotel. As a result of this call Termsrisuk went to the hotel foyer and met Lu. They sat down and had a conversation, which was again tape recorded by means of a listening device worn by Termsrisuk. They discussed various arrangements about phone calls to unidentified contacts and then how the bag would be brought to Lu while seated in the car, while at the same time Lu would in return hand over the $2,000. If it was not safe to hand over the bag, Lu would not be wearing his hat.
At about 9.07 p.m. Lu walked to the Range Rover from the front entrance of the hotel while Termsrisuk returned to his hotel room to retrieve the travel bag containing the 24 substituted blocks. A few minutes later Termsrisuk left the hotel himself and went towards the Range Rover which was double-parked just north of the hotel front entrance, with Lu seated again in the front passenger seat and wearing his hat as agreed. Termsrisuk then went to the rear passenger door, opened it and placed the black bag on the floor of the rear of the cabin immediately behind Lu's seat. In turn, Lu handed Termsrisuk $2,000 in cash while they had a brief conversation. Termsrisuk later handed this money to a police officer.
The conversations Termsrisuk, Lu and the applicant then had were seen as being of critical importance to the prosecution case in that they included the only recorded conversation of any length between the applicant and the others involved in the importation of the heroin and which took place less than half an hour before the car was stopped and the applicant and Lu arrested. The conversation (which we shall call ”the 9.15 p.m. conversation”) was recorded by a number of devices, at first by one on Termsrisuk and then by others in the black bag containing the substituted blocks of heroin. Termsrisuk's participation in the conversation finished shortly after he had received the money and with agreement that he would call Lu in one hour. The applicant then remarked, significantly so it was said, that Termsrisuk was "so cool". Lu made a number of phone calls during the journey in the course of which he told the applicant that he was seeking permission to call Bangkok. The applicant offered Lu the use of his own phone which he turned down. The applicant then asked whether it was "okay to put it in the back of the car", which led to their deciding to go to the car park at the Jam Factory in Chapel Street.
During this conversation the car was observed entering the car park, parking at the western end nearest the Jam Factory. The applicant was seen getting out of the driving side door, walking to the rear and opening the glass panel tailgate. Lu passed the black carry bag with the substituted blocks over the rear seat to the applicant who lifted up a rear ledge over the boot space and placed the bag inside. Having covered the bag with sheets he closed the tailgate, got back in again and left the car park at about 9.18 p.m. During the moving of the bag the applicant asked how much Lu wanted him to take out, to which Lu responded by asking for one piece. One piece was later found under the front passenger seat. The applicant referred to the bag as a "nice bag", but laughing at the same time, perhaps, at his description.
The conversation continued as the car started up again and in due course they travelled, so it was observed, back down Chapel Street and thence into the City so as to be travelling east along Lonsdale Street. That conversation was also recorded but, principally because the transmitting device was located in the bag containing the heroin which was located at the rear of the vehicle, not all of it was reproduced on the tape that was played to the jury. What they heard were, in effect, snippets of the conversation which included the following. It seems that shortly after Lu had taken a sample block of the heroin, the applicant asked whether he wanted to have a look, but Lu responded by saying that he had "plenty of time to look at it". The applicant himself asked to "give me a look". A little later Lu explained that the brand of the heroin was one which they called "virgin because, virgin prostitute", (apparently, so it was claimed, because it was 70% pure); "nobody can imitate this brand because their whole family will be massacred …". Although the engine was heard running at this time they had still not left the Jam Factory for an attendant then asked for $4.50 which was paid. There is then further intermittent conversation, at first largely from Lu, who described a manager who had already checked “if you follow the law”. Lu confirmed that, if they had done it "all right", "he should have come out with the luggage and then walk out as I told him just now ...". Then Lu said "nobody knows, only you know", although the applicant said in evidence that this related to Lu's medical condition, for Lu himself was in the advanced stages of cancer and did not survive to the trial. Then, significantly, the applicant said: "I'd … really die if they find it … in my house". Lu reassured him on that but then advised the applicant that he should not turn into the hotel. The applicant then uttered these words: "Certainly if I have it in my office no problem". Lu then had a conversation by phone in Cantonese, after which there was further, largely unintelligible, conversation, including the applicant saying "once a crook always a crook …". Lu then starts telling the applicant that, "once you confirm the quantity … or ... getting confirmed that they have to pay …". This is interrupted by the applicant asking "how?", to which Lu replied that "Look like you just keep … next couple of days …". There was then some conversation as to what was thought to be the weight of the packages, for Lu describes something as being "700", which the applicant repeated, but which is said to be significant because it is known that two blocks of heroin weigh 700gms. After a few more words the applicant then said "These poor bastards that grow the stuff they get nothing …". Apart from a brief further comment by Lu about the costs of transportation, that is all that was recorded before they were intercepted.
As will be seen later the applicant’s case was that this whole conversation did not take place in the order suggested by the tape played to the jury but had been reconstructed by the AFP by deleting some conversations on the tape and moving others into different contexts so as to implicate him in relation to the heroin. The applicant’s counsel attacked Hamilton in particular on this issue alleging, in effect, that he was primarily responsible for the falsification of the tape. The applicant produced in evidence a tape which he claimed set out accurately the order and the content of his conversations with Lu.
It was while the Range Rover was travelling east along Lonsdale Street that it was intercepted by the federal police, between Swanston and Russell Streets at about 9.31 p.m. on 24 September 1994. Both Lu and the applicant were arrested and placed in handcuffs.
When the Range Rover was intercepted those involved in arresting the applicant and Lu called out "police" before opening the doors, but the applicant resisted being removed from the car. He was told that he was being arrested for possession of a large quantity of heroin and advised that anything he said would be recorded. The applicant repeatedly asked for a solicitor but was told that that was up to Hamilton who was in charge of the police arresting the applicant. Hamilton was also asked by the applicant if he could get in touch with his wife. That decision was ultimately left to Det. Supt. Phillips who was in general command of the operation but not present at the arrests. An operational decision was made that the applicant could not see his solicitor or have access to his wife because of the ongoing nature of the inquiries and the need to preserve any evidence at places where searches might be carried out at the applicant's home or elsewhere.
At 9.52 p.m. there was a brief conversation, which was recorded, between the applicant and Hamilton, together with two detective constables. In substance he said, after having been warned, that the Range Rover was owned by a family trust. He said that Lu had been a partner trying to locate hotels on behalf of the Wandong Provincial Government. Having been told that he was arrested in relation to the importation of a large quantity of heroin, the applicant asked "What's that got to do with this?" He was asked to describe the contents of the car, and at first identified the mobile telephone and a number of general files on the floor near the rear seat. When shown the rear area of the vehicle he described the contents as including material he used when he went to Buller, as well as a bag, being the black vinyl bag. He described how the bag came to be in the car by saying that he picked it up from a person at the hotel about an hour ago. He said that person came out because he was checking out and he supposed that he was going to be checking into a hotel in the City. He had been asked to take him to a hotel into the City, rather than stay out in South Yarra, although he did not know the person. He had been asked to do that with Lu whom he collected from the Chateau Commodore. However, the unknown man had given him the bag but he was going to meet them later at the hotel. The conversation did not proceed any further because the applicant complained that he was standing in the street and he was in a state of shock. That interview concluded at 10.10 p.m.
He was then taken to the headquarters of the AFP in Latrobe Street where he was again interviewed, sometime later, starting at 11.53p.m Each time the applicant objected that he could not get in touch with his wife or get proper legal representation. The last of these interviews commenced at 12.46a.m. and continued beyond 1a.m., but no questions effectively were answered by the applicant in the circumstances.
In the meantime the Range Rover had been taken to the AFP headquarters and searched. Not only was there the black carry bag with the substituted blocks of heroin but there was later found the white envelope under the front passenger seat containing one of those blocks. Later searches were conducted at the Chateau Melbourne Hotel at 131 Lonsdale Street and the applicant's home. Finally, but relevantly in particular to ground 3, Lu was interviewed and gave answers which were, of course, not led directly before the jury. However, there was extensive cross-examination of Hamilton in relation to this interview and considerable comment as to what Lu had said and how the AFP had used it. It is sufficient to say that Lu sought to accept complete responsibility for the events, although his answers were, so it was said, capable of being used to implicate the applicant further than he accepted at trial, but further details of this matter will be described in discussing ground 3 of the application.
No identifiable fingerprints were found on any article examined by the police. Nor was any incriminating evidence discovered in searches of the applicant’s home.
The matters summarised above were taken from the evidence of a large number of witnesses called at the trial by the prosecution, as well as from exhibits tendered by them. Many of the witnesses were able to observe and hear only a small part of the events and they were cross-examined in various ways to test their reliability. In addition there were a number of expert witnesses called, especially Dale Warren and Dr. Prandolini, whose evidence was likewise challenged though in certain limited ways, as will be discussed in considering ground 6.
The case at trial for the applicant
The applicant gave evidence as part of his defence and sought also to call some witnesses as to his allegation that the tape recordings had been tampered with so as to produce an untrue or misleading version of what the applicant had said. The applicant in the course of his evidence, which will be described below, gave a very different version of the events, in substance stating that he only drove Lu on the night because he was anxious to help his business friend and so they might have a meal together. He said he knew nothing about the heroin and sought to explain his participation on the night by placing an innocent construction on the events, certainly in terms of his reconstructed version of the tape recording of his conversations with Lu on the trip from the Hotel Como to their interception in Lonsdale Street.
The applicant said that he was 58 years old and was a partner with his wife in a marketing business. In 1994 he was the general manager of CNCC Malaysia Engineering in Kuala Lumpur, which is a wholly-owned subsidiary of the Chinese National Government. He was based in Kuala Lumpur, living there for 3-4 weeks at a time before returning to Australia for 10 day periods. The business was involved with construction and infrastructure financing for major government projects. He was paid approximately $75,000 per annum plus all expenses and airfares. He was also able to draw on the funds of his family trust.
He met Lu in the mid-1980s in Hong Kong when Lu’s business was involved with shipping Indonesian timber to China. During the late 1980s he saw Lu infrequently. At some stage between 1992 and 1994 Lu approached him to see if the applicant would assist him in the export of Australian thoroughbred horses to Malaysia. As a result, they carried out this business very successfully over the next few years.
In July 1994 he was working in Kuala Lumpur but arrived back in Australia for his birthday on 8 August. He returned to Kuala Lumpur immediately after his birthday. He spoke to Lu once or twice in July and August, when he was told that Lu was coming to Australia. At one stage Lu asked if the applicant could arrange for him to have a mobile phone in Australia. The applicant offered Lu his phone and made arrangements to leave the phone at his home and Lu subsequently collected it from there in his absence. He returned to Australia to look after his wife a few days before she had a scheduled hysterectomy on 30 August. She suffered serious post-operative complications, confining her to bed. He had advised colleagues in Malaysia that he would be returning there around the third week of September because of considerable work he had to do prior to a scheduled visit to China in early October.
In September the applicant had regular telephone contact with Lu during which they discussed various business matters. The applicant also saw Lu on 2 or 3 occasions in September for short meetings during the day. Prior to 24 September, he last saw Lu around 22 September, to discuss an extensive offer for racehorses and arranged to meet him for lunch at a restaurant near Lu’s hotel on Friday 23 September. At that meeting they discussed expanding the business of horse exports. Lu asked if they could get together for a social engagement prior to him leaving. On the Friday night Lu rang and asked if they could have dinner on Saturday night. The applicant rang Lu back on Saturday and told him that he would be able to join him for dinner but that he could not confirm a time as he had to make arrangements with his mother-in-law to be with his wife. (The applicant said that he had absolutely no idea that Lu was involved with Termsrisuk or drugs.)
Lu called back later and the applicant told Lu that he would be late for the dinner. To his surprise, Lu called him again a few minutes later and asked to borrow $2,000. He agreed to lend him the money because Lu had always repaid his debts. The applicant said he had the $2,000 in cash; he usually carried cash of $2-$3,000 because overseas he found travellers cheques inconvenient. He drove to the city from his house in Malvern and parked in the car park of Lu’s hotel, anticipating that they would be eating in Chinatown and called him from the lobby. Lu told him to come up to his room as he was not ready. When he arrived Lu looked terrible. At this stage the applicant knew that Lu was very sick. He said that he presumed Lu was on medication because of the fluctuations in his mood and hot and cold fevers. Lu asked him to take him to the Hotel Como where he had to meet a friend at 9.00 p.m. Lu said that the man was involved with a China hotel project and that he would be taking his friend to the Casino afterwards. The applicant said that the change in plans made no difference to him as the Hotel Como was on his way home and it meant he could get home earlier. He was under the impression that they would all dine out together there. During the conversation the applicant gave Lu the $2,000. He then drove from Lonsdale Street to the Hotel Como in his Range Rover. They discussed Lu’s health. Lu said that he (the applicant) was the only one who knew about his dying state; he did not want anyone else to know because of his business dealings.
The applicant said that he imagined that Lu would go into the hotel, bring his friend out and they would go for dinner together, but Lu came back to the car and said his friend was checking out and wanted to go to the City because he was uncomfortable because there were no Asians in the hotel. The applicant expected the person to come to the car after he checked out. He told Lu that he would take him to the Tokyo Teppanyaki, a restaurant close to the Jam Factory, and later would drive both him and his friend back to the City. He saw a person he now knows to be Termsrisuk, whom he had never seen before, come out of the hotel. Termsrisuk came to the car, opened the back door, put his bag on the floor of the back seat, closed the door and, after a conversation with Lu which the applicant could not understand, headed off. He could not understand what was said because it was a mixture of English and Chinese. He believed that Lu handed Termsrisuk money for the purpose of paying his bill. He asked Lu why the person was not getting in and about the proposed dinner. Lu said that the person was frightened and had told Lu to go. We have already mentioned that the applicant claimed at the trial that the AFP had manipulated the tapes so as to delete some conversations and alter the sequence of others. He said that the changes took place after about this point in his discussions with Lu. When Lu told him “Let’s go”, he said “OK” and drove off towards the Tokyo Teppanyaki where he thought they would dine. As there was no parking in Chapel Street, he decided to park in the Jam Factory. He asked Lu if he minded if he put his luggage in the back and Lu said it was okay. The applicant said that he wanted to stick the luggage in the back because he would never leave anything exposed in his car for fear of it being stolen. He parked the Range Rover as close as possible to the walkway through to the Jam Factory so that they could go straight out into the street to the Tokyo Teppanyaki.
The applicant said that he then went to the back of the Range Rover and opened the back compartment. He had papers and files in the compartment into which people could not see. By then Lu was in the back seat of the Range Rover where it was dark but he could nevertheless see him fiddling with the bag. When the applicant asked him what he was doing, Lu said he had to get something or a sample out of it but that it had nothing to do with the applicant and was none of his business. The applicant said he had not heard this part of the conversation reproduced on the tape (which was tendered in evidence). He said he did not open or close the bag at any time. Lu asked him for a piece of paper off the back deck and he thought Lu wanted it to wrap his sample. He said that he handed Lu all the papers and files. The applicant agreed that it was unusual that Lu was opening his friend’s bag. Lu eventually handed him the bag which, to his surprise, was very heavy and resulted in the back deck collapsing. The applicant thought he was not going to be able to get the back cover on again so he covered the bag with drop sheets and dog sheets he had in the car so that nobody could see it and be tempted to break in and take it. He said he would not have covered it if he had not been going for dinner to the Tokyo Teppanyaki. By the time the applicant got to the front of his car, Lu was on the telephone. He said to Lu to come to dinner but Lu asked to be taken back to his hotel as he had to meet his friend in an hour. He thought Lu was behaving in an extraordinary way but that this was due to the medication. They then drove out of the car park.
The applicant said that he remembered Lu saying on the way back to his hotel “Nobody knows, nobody knows”, which was a reference to nobody knowing about his illness. Lu said that if people knew that he was dying they would never sign contracts with which he was involved.
Lu said “I don’t need that” because the applicant claimed that he had given Lu all the papers. The bag was shut when it fell into the boot cargo area. He did not understand Lu when he was on the phone. As they left the car park, Lu asked him not to let anyone know about his health. He never heard the conversation “I tell you this is the brand, this is virgin… Nobody can imitate this brand because their whole family will be massacred …”. He did not take part in this conversation. He did not believe he could reconstruct it. There was a lot of inaudible discussion regarding the timber business. The references to the manager and “the law” probably related to Lu’s manager in Indonesia and the international methods of inspection for loading timber. Lu was at the bag when the opening and scrunching noises on the tape took place. He cannot recall how Lu got to the back of the car. He heard Lu unzipping and fiddling with the bag. Lu told him that he was taking something out of the bag and it was nothing to do with the applicant. Lu talked on the phone. He was at the back of the car for 2-3 minutes. Lu beckoned for him to get into the car and he sat there waiting until Lu finished his call, when he asked Lu what about dinner, but Lu had asked him to take Lu back to Lu’s hotel to meet Lu’s friend.
Some of the conversation was peculiar. The applicant put it down to Lu’s medication. He had no idea what Lu was talking about when he described how somebody “should have come out with the luggage”. “Nobody knows” was said in the car park. Lu was talking about dying.
The applicant had absolutely no idea about the portion “I’d really die if they find it in my house”. He could not recall the conversation. It had no connection to Lu’s friend’s bag because that was going back to Lu’s hotel. Lu had said “No you should not turn into the hotel” on Lonsdale Street but the passage appears on the tape prior to having crossed the King Street Bridge. “Certainly if I have it in my office no problem” referred to his having asked whether he had any old timber contracts in relation to his dealings with China. He did not know who Lu was calling on the mobile phone. Lu knew he did not speak Chinese. “You know it will be 700” related to the contract figures of $700 per cubic metre of timber. “The poor bastards that grow the stuff, they get nothing” was his comment because he’d had dealings with those who grow the timber. Transporting timber was a big cost.
When intercepted the applicant did not hear the police yell out “police, police”. He had intended to do a U-turn, drop Lu off with the bag and head home as he told his wife that he’d only be a few hours. The intercept was frightening, so he had put his arm down to lock the door because he thought it was a gang attack. His head hit the ground when he was dragged from the car and thrown to the ground and he bled profusely. When speaking to Hamilton, he had tried to give precise details but was confused and shaken and in hindsight could not be certain what time he left home or arrived at Lu’s hotel.
On 27 September Hamilton came with another officer to fingerprint him. There was a bail application. On a subsequent bail application the tape was played but it was virtually totally inaudible, and he was released on bail. A copy of the tape and transcript were provided to him in 1995.
He had an operation in 1995 as his brain was under enormous pressure from multiple cysts and he was raced to hospital because he could have had a cerebral haemorrhage at any time. The cysts were removed in September 1995 in an operation that initially had some impact on his memory and coordination. He denied that he was involved in an attempt to possess the heroin. He had no idea that Lu was involved with drugs or would try to involve him. He declared that he never knew for a minute that the bag contained heroin. He did not see the contents of the bag until the court hearing.
The applicant was cross-examined in detail, especially about the recorded conversation and about his reconstruction of it. It is not practical to summarise those matters and it would seem, by reason of the verdicts brought in against the applicant, that the jury chose not to accept his version of events, or at least a significant part of it.
A number of other witnesses were called on behalf of the applicant. His wife gave evidence generally supportive of him. She confirmed his friendship with Lu extending over about eight years and the applicant's business dealings with him. She had no idea that Lu was involved with drugs and denied firmly her husband's involvement. She confirmed generally her understanding of the arrangements by her husband to meet Lu on the Saturday night in question. She confirmed the applicant's evidence about her own illness and said that the applicant had had significant brain surgery after his arrest which resulted in becoming "a little bit vague". A general practitioner was also called confirming that the operation took place on 17 August 1995 but that he had made a reasonable recovery. He also confirmed that the applicant had had hearing difficulties.
The other witnesses for the defence were three expert witnesses. First was an associate professor of scientific photography who had to concede that his expertise related to photographic and visual imagery and not to audio recording. Nevertheless he said that it was possible to fiddle with and reconstruct tape-recordings. A second witness, one McDougall, said that he was a computer technology analyst who had worked in audio engineering and tape analysis. He said it was not impossible to prove that a tape was an original one but said that digital editing these days could not be detected. Finally one Morgan said that he was the director of Soundhouse Studios and was involved in digital editing, mastering and sound recording. Although one could detect editing done at home, one could not be aware of a “good edit” and he gave a demonstration on the re-arranged tape of the conversation.
Bias application
Upon these applications being called on, counsel for the applicant applied for a member of the Court, Chernov, J.A., to disqualify himself on the ground of perceived bias. Argument ensued on this application in the absence of the other members of the Court. The application was not acceded to. Chernov, J.A. delivered his reasons for judgment ex tempore and they were later published. Counsel for the applicant then applied for what he termed a “review” by the entire Court, of the decision of Chernov, J.A. As the Court was exercising Federal jurisdiction, it was submitted that it possessed an inherent or implied jurisdiction to prevent a member “affected” by perceived bias from sitting. Counsel for the Crown expressed reservations about the proposed procedure.
In any event, argument ensued and it is sufficient to say that it followed the lines set out in the judgment of Chernov, J.A., which is annexed to this judgment. (Annexure 1) At its conclusion we ruled that assuming, without deciding, that the Court was properly constituted for reconsideration of the issue raised by the applicant, we were unpersuaded that Chernov, J.A. should stand aside. We said we would later publish our reasons. Again, it is sufficient to say that having given consideration (in the case of Chernov, J.A., reconsideration), to those reasons we find them free of reviewable error.
Application for leave to appeal against conviction
We turn now to consider the submissions made on behalf of the applicant in relation to his conviction and we do so in the order in which they were argued.
Ground 7 – Failure to satisfy s.15X preconditions
This was the first ground that was argued by counsel for the applicant. In essence, it was submitted that his Honour erred in finding that the factual preconditions to the operation of s.15X of the Crimes Act 1914 were established by the prosecution. The context in which his Honour made that finding can be briefly summarised. We have already mentioned that on 27 May 1996, following pre-trial argument, his Honour effectively ordered a stay of the proceeding on the basis that, in light of Ridgeway the evidence relating to Proebstl’s importation of the heroin would not be admissible and without it, the prosecution would fail. The decision in Ridgeway provoked the passing of the Crimes Amendment (Controlled Operations) Act 1996 (which came into operation on 8 July 1996) and which, in certain circumstances, made evidence of unlawful importation of narcotic goods in the context of a controlled operation, admissible at the hearing of prosecutions for offences against s.233D of the Act and associated offences. Consequently, at the mention on 31 July 1996, the prosecution foreshadowed an application to lift the stay of 27 May 1996. The applicant, however, challenged the validity of the amending legislation so that the Crown’s application for the removal of the stay was adjourned pending the determination of the constitutional validity of the new legislation. This issue was resolved against the applicant in Nicholas. On 28 September 1998 the prosecution applied to his Honour for an order lifting the stay of 27 May 1996 and in the course of that application, led evidence which was directed to establishing the factual preconditions to the operation of s.15X of the Crimes Act. On 1 October 1998 his Honour ruled that the preconditions had been satisfied, that the Proebstl evidence was admissible and that the stay order of 27 May 1996 be lifted.
The applicant argued before us that his Honour erred in ruling that the preconditions to s.15X had been made out by the Crown and, therefore, the Proebstl evidence of the importation of the heroin was wrongly admitted. Hence, it was submitted, the conviction should be quashed.
Before examining further the applicant’s submissions under this ground it is convenient to look briefly at the relevant legislation and, in particular, s.15X of the Crimes Act 1914 which was introduced by the 1996 amending legislation. It is expressed to operate in specified circumstances which can only be understood by reference to the complex background of the relationship between the bodies responsible for drug enforcement and in particular, the enforcement of the provisions of the Customs Act relating to narcotic offences. Much of this is described in the judgments in Nicholas which in turn refers back to what was said in Ridgeway, being a decision which, as we have previously mentioned, provoked the passing of the amending legislation which introduced into the principal Act Part 1AB, the objects of which are set out in s.15G. The relevant provisions of it are in the following terms:
“The objects of this Part are ...
(c)to provide what evidence of importation of narcotic goods obtained through a controlled operation:
(i) started before the commencement of this Act; and
(ii)in which the Australian Federal Police and the Australian Customs Service acted in concert to allow the narcotic goods to pass through the Customs
is not to be rejected because of the unlawful conduct of law enforcement officers that took an active part, or where otherwise involved, in the importation of the narcotic goods.”
For present purposes it is sufficient to note that Division 2 of Part 1AB is concerned with exempting in certain circumstances law enforcement officers from liability for, inter alia, an offence against s.233B of the Customs Act that may be committed by them (in the future) in the course of their participation in a controlled operation. The new Part does not, however, operate to exempt such officers from liability in respect of relevant offences which were committed by them before the amending legislation took effect. Thus, for example, Proebstl’s conduct in relation to the importation of the heroin in this case would not be excused by the new provisions. But Division 3, and more particularly s.15X which forms part of it, provides that evidence of such importation will not be rejected on the ground that the importation was in breach of the Customs Act, provided the factual preconditions set out in the section have been satisfied. The provision is in the following terms.
“15X.In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded, if:
(a)the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and
(b)for the purpose of the operation:
(i)the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901), be exempted from detailed scrutiny by officers of the Australian Customs Service; and
(ii)the request for exemption was granted.”
The Ministerial Agreement (“the Agreement”) to which reference is made in the section, is defined in s.15V(2) as being the Agreement “concerning the relationship between the Australian Customs Service on the one hand, and the National Crime Authority and the Australian Federal Police on the other, with respect to narcotic drug law enforcement ... made by the Minister for Industry, Technology and Commerce and the Special Minister of State on 3 June 1987”. Thus, this critical piece of legislation was written in the context of an Agreement which had been in operation for almost a decade and which in form, resembles more a Heads of Agreement than a carefully worded document which seeks to define with some specificity the rights and liabilities of the parties to it. We will examine the terms of the Agreement and its operation a little later.
That s.15X has retrospective operation has been accepted by the parties to the appeal. Its terms and those of ss.15G and 15V(1) in particular, make that clear. It follows, therefore, that if s.15X applies, then, notwithstanding the decision in Ridgeway, the evidence of Proebstl as to the unlawful importation of the heroin by him was admissible in the course of the applicant’s trial. This was not challenged by the applicant. His case on this issue was that the prosecution has not established that all the preconditions to the operation of the section were satisfied and that, therefore, the provision did not operate so as to render the evidence of the unlawful importation of the heroin by Proebstl admissible at his trial. More particularly, the applicant contended that the written request of the AFP of 21 September 1994 that the ACS exempt from detailed scrutiny the then proposed importation of the heroin, did not satisfy all the requirements of s.15X(b)(i). Before dealing with the way in which the applicant put his case on this issue, it is desirable to set out the terms of the request which are as follows:
“REQUEST FOR EXEMPTION FROM DETAILED CUSTOMS SCRUTINY
In accordance with Section D paragraph 7 of the Ministerial Agreement, signed 3 June 1987, between the Minister of Industry Technology and Commerce on behalf of the Australian Customs Service and the Special Minister of State on behalf of the Australian Federal Police and the National Crime Authority with respect to narcotic drug law enforcement, the Australian Federal Police requests that exemption from detailed Customs scrutiny be accorded in respect of a suspected importation of heroin that is likely to take place through Melbourne (Tullamarine) Airport between 14 September, 1994 and 30 September, 1994.
The heroin will be carried in a case by Glenn Trevor PROEBSTL, born 19 February, 1963 an officer of the Intelligence and Drug Operations Division, Australian Federal Police, Melbourne who will be accompanied by an officer of the Thai Office of the Narcotic Control Board (ONCB).
More precise details of the importation will be supplied to you as they become known. It is the intention of the Australian Federal Police to allow a controlled delivery of the heroin to take place in order to arrest the Australian based principals of this importation.
Pursuant to the granting of this exemption, the Australian Federal Police accepts total responsibility for compliance with all Customs statutory requirements in respect of the above named, in accordance with the Ministerial Agreement.
In accordance with Section E paragraph 1 of that Ministerial Agreement all relevant information/intelligence related to or deriving from this matter will be made available to the Australian Customs Service as soon as practicable.”
It was the applicant’s case that this request did not satisfy the requirements of s.15X(b)(i) in the following ways.
(a)Properly construed, the request was for the transfer of Customs control to the AFP and was, therefore, not a request that was contemplated by the section.
(b)Alternatively, if the request sought the relevant exemption, it did not do so (and did not purport to do so) “in accordance with the Agreement”, because the Agreement deals with the request for transfer of Customs control and not with a request for exemption from relevant scrutiny.
(c)If, however, the request was made in accordance with the Agreement, it did not seek, as is required by s.15X(b)(i), that the goods be relevantly exempted while they were subject to the control of the ACS within the meaning of the Act.
(d)In order to come within s.15X, the request must be issued when the goods are subject to the control of the ACS. The request in question, however, was made when the heroin was in Thailand and, therefore, before it was subject to the control of the Customs.
Since the applicant’s attack on the sufficiency of the request is based in part on his construction of the Agreement, it is convenient to examine at this stage its relevant parts and its operation. As its heading suggests, it is concerned with the orderly enforcement of narcotic drug law by three agencies that are involved in that operation, namely, the AFP, the ACS and the National Crimes Authority (“the NCA”). In general terms, the Agreement seeks to allocate amongst the three agencies separate responsibilities relating to drug enforcement in order to maximise the expertise of each and to avoid duplication of effort and other inefficiencies that might otherwise flow from the overlapping activities that might be pursued by them in respect of the detection, investigation and prosecution of drug related offences, particularly those arising from the illegal importation of narcotic drugs. For present purposes, it is not necessary to consider the role of the NCA under the Agreement; it is sufficient to refer briefly to the allocation by the Agreement of drug law enforcement functions and responsibilities as between the ACS and the AFP.
The Agreement is divided into a number of sections. So far as is relevant, Section A provides that primary responsibility for drug law enforcement within the Commonwealth is vested in the AFP, while the ACS is given the responsibility for detecting and intercepting drugs at the “Customs Barrier”. Consistently with this policy Section B provides that the AFP is to have responsibility for all decisions in respect of drug seizures and arrests at the Customs Barrier and any resulting prosecutions, while the ACS is to be responsible for liaising with the AFP and informing it of relevant drug related matters occurring at the Customs Barrier. Section C is essentially concerned with the role of the ACS as a Customs organisation which operates under the Act; the section does not deal with drug law enforcement. In that context there is recognition in para.1 that all persons, goods, ships and aircraft arriving from or departing for overseas are subject to Customs control, that this term “includes the full range of legislative powers and responsibilities of the [ACS]” and that such control “is exercised at the Customs Barrier”. It also deals with the location where “Barrier Control” is normally exercised, namely, at ports and airports and other places in Australia as well as all points within the 12 nautical mile limit where, inter alia, persons and goods arrive from or depart for overseas.
Section D is concerned with some of the practical aspects of the operational relationship between the ACS and the AFP in relation to the unlawful importation of drugs. It is headed “Drug Detection by ACS – Operational Relationship”. The section is predicated upon the ACS performing on a day-to-day basis, the role of drug detection at the Customs Barrier and passing on relevant information in relation to such activity to the AFP which is to make the ultimate decision as to whether and how the investigation should proceed. That is essentially the effect of paras.1-6 of Section D. Thus, this aspect of the scheme seems to contemplate that the AFP is to have the overall responsibility for drug law enforcement and the ACS is to have the initial task of conducting day-to-day drug detection work at the Customs Barrier. Paragraphs 7 and 8, on the other hand, seem to provide the mechanism whereby the AFP effectively replaces the ACS in relation to drug detection work at the Customs Barrier. These provisions are in the following terms:
It seems obvious enough that if there is a real, as distinct from a fanciful, risk of that occurring a judge should be disqualified on the ground of perceived bias. There is no need, however, to resort to the principle of legal professional privilege in order to reach that conclusion.
Mr. Holdenson submitted, and I accept, that the test for determining perceived bias is whether a reasonable fair-minded observer seized of the material objective facts might entertain a reasonable apprehension that the relevant member of the court might not bring an impartial and unprejudiced mind to the resolution of the issue or issues that will or may arise in the proceeding. There are many cases in which this test has been laid down and applied. They are well known and there is no need to repeat them.
Mr. Holdenson referred to what Dawson, J. said in Grassby v. R. (1989) 168 C.L.R. 1, at 20, namely:
"The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him."
It was Mr. Holdenson’s contention that this passage lends support for the view that one of the matters which the fair-minded person would take into account in respect of a criminal case, was the sensitivity of a person in the position of this applicant to the fact that his or her previous counsel is sitting as a judge on the case involving that person. In my view, this passage does not support Mr. Holdenson’s submission. As was pointed out by Tadgell, J.A. in Gascor v. Ellicott [1997] 1 V.R. 332, at 340, the knowledge which is attributed to a fair-minded lay observer is his or her knowledge of “material objective facts”. Deane, J. in Webb v. R. (1994) 181 C.L.R. 41, at 73, referred to it as “a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court”. In my view, what Dawson, J. said in the above passage is consistent with these observations. The facts that are to be taken into account for the purpose of establishing whether there is apprehended bias, are objective facts and do not encompass the subjective concern of the litigant.
I should have mentioned earlier that the Crown took a neutral stand in relation to this application although its counsel submitted, in effect, that many of the concerns raised by Mr. Holdenson are without foundation because, given the grounds of appeal, the applicant’s credit is not likely to be considered in the context of the leave application that relates to the conviction. As to the appeal against sentence, the question of the applicant's bad character or motive might arise only if the Court were to re-sentence him. While there is much force in those submissions, in my view, the matter should be approached on the basis that the question of the applicant's motive and the extent of his participation in the offence and his prior convictions and the circumstances surrounding them, including his motivation, may have to be considered in the course of the hearing of the applications for leave to appeal.
I am conscious that this is a criminal appeal, both as to conviction and sentence, which necessarily involves the liberty of the applicant so that there has to be sensitivity in respect of the application for my disqualification. Nevertheless, in my view, the test for determining whether perceived bias exists is whether there is a reasonable, not a fanciful or fantastic apprehension that I will not be able to bring an impartial or unprejudiced mind to the resolution of the issues that arise or may arise in the particular case. The test is not whether I might decide the case adversely to the applicant. The ultimate question for decision is whether, in the circumstances existing in this case, a fair-minded observer might entertain a reasonable apprehension that, because I had a conference with the applicant almost 20 years ago for the purpose of tendering him legal advice in relation to a prosecution brought against him for breach or breaches of the Companies Act, in the course of which I would have received instructions pertaining to that matter, I might not bring to bear an impartial and unprejudiced mind to the resolution of the issues that might arise in the applications for leave to appeal, both from the point of view of the applicant and the Crown. As Tadgell, J.A. pointed out in Gascor v. Ellicott, at 342, “the court is to be satisfied that the criterion is met, not that it might be met.”
In that context, it is important to bear in mind what Mason, J. said in Re J.R.L.; Ex parte C.J.L. (1986) 161 C.L.R. 342, at 352:
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
See also Livesey v. New South Wales Bar Association (1983) 151 C.L.R. 288, at 294.
I note also that in S.& M. Motor Repairs Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1988) 12 N.S.W.L.R. 358, which involved, inter alia, contempt proceedings commenced by the respondent for whom Bryson, J. had acted over a very long period before going to the Bench, the majority of the Court of Appeal found that his Honour properly refused to disqualify himself on the ground of perceived bias, notwithstanding that he left practice only a relatively short time before undertaking the case before him.
It is trite that no litigant has the right to choose which judge will hear his or her case. The reasons for that are obvious. I should not be taken to imply by what I have just said that I have formed the view that the applicant is seeking to achieve that result by his application. I mentioned this only because the other side of that coin is that the judge cannot choose which litigant’s case he or she will hear. Subject to administrative considerations, a judge is under a duty to hear the case that has been assigned to him or her unless exceptional circumstances require that the judge not sit on it. Such circumstances include a reasonable but not fanciful apprehension of bias on the part of the judge. In my view, it is not the case that, merely because at some stage in the past the judge has acted as lawyer for the person who is now before the court, he or she must be disqualified on the ground of perceived bias. Judges frequently hear, quite properly, cases involving their former clients. It would be a serious impediment to the administration of justice if judges would be automatically disqualified because they had previously acted for or conferred with a litigant before them. In many such situations, the requisite degree of apprehension may be established. In some cases it will be blindingly obvious. But it will not arise automatically. Each case must be determined on its own facts.
In this case, the fact that I have advised the applicant in relation to an unrelated prosecution over 19 years ago, where it has not been alleged that any specific relevant information has been imparted to me, and given my understanding of the situation as I have described earlier, I do not believe that a fair-minded person, seized of all the relevant facts might take the view that I might be biased in the resolution of issues that arise in the applications for leave to appeal, either for the applicant or the Crown.
Consequently, I am unable to accede to the application that I disqualify myself from sitting on this appeal by reason of perceived bias.
Annexure 2
FIRST CONVERSATION HOTEL COMO BETWEEN LU AND TERMSERUK
(inaudible conversation)
Foreign Conversation translated as:-
T: Please sit down
L: Yes
T: Sit down please sit down may be do you speak (inaudible)
L: Speak to much don't speak (English conversation) “cannot speak”
T: Ah can't speak much
L: (inaudible)
T: Little bit do you go to Thailand often
L: What did you say
T: Do you go to Thailand often
L: Ipoh State
T: Ipoh State oh I see (inaudible)
L: Is it hmm hmm
T: Do you want to have a look first
L: Ha what
T: Have a look first
L: Don't look no bring it down what (foreign conversation ends)
English conversation begins:-
T: You want to see first
L: Might go in the room now
T: You see first
L: Go to room first
T: Something wrong
L: No no nothing wrong I just want to be sure
T: Mm Huh
L: Because must because this I’m I’m no good (inaudible) to want to check first
T: Huh huh
L: Is it right
T: Yes yes
L: Don't worry but (inaudible) but just want to be very sure
T: Ah huh hmm hmm
L: (Foreign language translated as) “Keep calm"
T: Ah I think you want to you you see sam sample.
L: No need to see (inaudible)
T: Not necessary
L: What for
T: Because of that (laughter)
L:(foreign language translated as) “is there a guarantee” guaranteed ah I don't know is that ah huh (foreign language translated as) “is that right is it” (foreign language translated as) “No problems” Ah huh
T: Should be ok
L: Mm hmm
T: Ah it ah what you think about it
L: What do you think any time now
T: Ah as soon as possible
L: Ah (inaudible)
T: I try to contact you and they give me the wrong number you know
L: (foreign language translated as) “fuck wife”
T: Wrong number
L: (foriegn language translated as) “oh one six”
T:Ah soon (foreign language translated as) “oh six (one?) three one three seven seveneight four two hasn’t got number one” I try to contact Chuck Pong this morning don't call back but hey but (inaudible)
L:I only come by taxi I never asked my man to come you know but of course I better meet you first so better I ask you (inaudible) you know I use my man to come otherwise (inaudible)
T:(foreign language translated as) “but I don't want it with me for a long time understand” one two three take it off a long time
L: Yeah yeah yeah (inaudible) any time ok any time ok (inaudible)
T: You can not take it now
L: (inaudible)
T: Hmm
L: (inaudible) you stay here how many days
T: Just two days two three days
L: (inaudible)
T: Hmm it's in my room
L: (inaudible)
T:I try to contact you to contact ah Bangkok but very very difficult to call contact to the mobile phone (inaudible)
L: Oh (inaudible) telephone
T: (inaudible) cannot (foreign language translated as) (inaudible) “Downstairs”
L: (foreign language translated as) “Have a meal”
T:(foreign language translated as) “I think you should take it now I’m finding my way home”
L:(foreign language translated as) “You want to check out no good no problems no problems go upstairs my man” (inaudible)
T: Yes (foreign language translated as) “no problems” no
L: (foreign language translated as) “kind no problems kinder”
T: I take from ah (inaudible) oh you want to take more no good
L: (inaudible) don’t worry by then all gone
T: Hmm Hmm
L: I tell myself (inaudible) first time security (inaudible)
T: Mmm Hmm
L: (inaudible) (laughter)
T: (foreign language translated as) “It’s cold in here isn’t it”
L: Huh
T: (foreign language translated as) “It is cold” it is cold
L: It is very cold yes
T:Yeah very cold I I think you want to see sample I take you (foreign language translated as) “today” you know
L: Ok I take away now
T:(foreign language translated as) “I’ll put it in upstairs” put it all together and I will bring
L: No no no
T: Small bag
L: No no no
T: It's very simple
L: I never bring bag
T: What
L: I never bring bag I never bring my bag
T: Uh huh
L: (foreign language translated as) “Has packing” (inaudible)
N: Daa nylon bag ah (inaudible) very simple
L: Very simple
T: Very simple
L: Has paper
T: Yes yes
L: (foreign language translated as) “Keep cool” yeah ok eh
T: You can pay me now
L: Uh
T: Pay me now
L:Pay (inaudible) not to far (inaudible) walking (inaudible) you get pay no problem I get maybe shopping I pay when you come back come back you ready I (inaudible)
T: Ah I want to go outside
L: Oh you don't go
T: Because I just my asian guy here you know
L: Huh
T: (foreign conversation translated as) “I think only me (inaudible) here” I just look around
L: Hmm mmm (inaudible) ah (inaudible) near to ten o'clock
T: Why
L: No asian
T: No good
L: No asian (inaudible) one except near the chinatown
T: Huh huh huh huh
L: Many times
T: Huh huh
L: Many Thai’s many Hong Kong many in Singapore Malaysia so (foreign conversation translated as) “there are no problems”
T: No.
L: I’ll go back and take my car better.
T: Ok it's up to you uh huh (inaudible) and park it out here or
L: Ah (inaudible) its a range rover range rover
T: Uh huh
L: (foreign language translated as) “Big big”
T: Uh huh uh huh
L: Before I come I call you
T: Yes uh huh
L: I call you
T: Uh huh
L: I call you then ah ten minutes then you come down never mind I wait
T: Uh huh
L: You know
T: Uh huh I just saw your car and
L:Don't come immediately if you saw my car then you stay here one minute two minutes you look
T: Uh huh
L: If I just take out don't come
T: Ok
L: (foreign language translated as) “Understand”
T: Understand sir
L: If I take this out you go back (laughs) sleep ... don't run don’t run money is yours
If I take out you just go back
T: Uh huh
L: I will call you again
T: Uh huh
L: Ok like this you look one minute then you come
T: Mmm
L: Then you come
T: Mmm
L: Good for you good for me (foreign language translates as) “isn’t it”
T: Yes yes and I take it to your car
L: (inaudible) take it to my car and I drive you maybe out in the road then you come back by taxi
T: Its not necessary
L: Or you walk walking you go walk (inaudible) you must come to the car
T: I think no good if you go to together you know
L:If that’s right if if I take off this you don’t come If I put on then you come and then you come just on one corner and then you go down
T: Mmm
L: (foreign language translated as) “Understand”
T: Mmm
L: Then I let you go now then you (foreign language translated as) “smoke” (laughs) take a walk along
T: Mmm
L:(foreign language translated as) “Then I let you go now then you” (inaudible) then I pull it out I contact you
T: Mmm
L: Or not necessary any more
T: Hmm mmm
L: Ah
T: Hmm mmm
L: Ok
T: Uh what time it
L:(foreign conversation translated as) “Later six O’clock I’ll come this is Malaysian H.K.”
T: Twenty more
L: Now is six
T: Six
L: Eight o'clock o'clock nine o'clock
T: Nine o'clock you will come back nine o'clock
T: Why take a long time
T: (inaudible)
L: But this time there will be (inaudible) five minutes I call you then you come
T: Uh huh
L: (inaudible) take out Ok
T: Ok
L: (foreign conversation translated as) “Do you want money”
T: (foreign language translated as) “Don't need much just for paying hotel and others"
L: You need money
T: Yeah
L:
T:(foreign language translated as) “I think I want money to pay for hotel bill and others only” for hotel for food
L: I know I know I already they say ok two thousand ok
T: Ah
L:But now I can give you two hundred if you want or afterwards I come I give you the money
T: No problem
L: (Foreign language translated as) “Will come later”
T: Uh huh
L: (foreign language translated as) “Yes”
T: Uh huh
L: Ok (foreign language translated as) “Good night good luck”
T:(foreign language translated as) “You don’t have to dig your money take it back take back”
L: (foreign language translated as) “Take it take it” don’t worry no problems
T: Ah how long you live here
L: (inaudible) long time might not be
T: And you are Australian citizen
L: No
T: Cold
L: (inaudible)
T: Uh huh
L: (foreign language translated as) "Good luck"
T: Yuh
L: Ok see you back here
T: Yeah
12
0
0