R v O'Neill

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 46 of 2001

THE QUEEN
	v.
OWEN O'NEILL

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JUDGES:	ORMISTON and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10, 11 October 2001
DATE OF JUDGMENT:	14 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 227

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CRIMINAL LAW – Appeal against conviction and sentence – Attempt to obtain possession of a prohibited import, namely amphetamine, in a trafficable quantity – Whether a combined audio and video tape was admissible in evidence – Whether a transcript of the audio tape could be used by the jury to aid their understanding – Whether a transcript prepared by a police witness was admissible in evidence – Objection to admissibility – Circumstantial evidence – Failure to direct that the conversation in Ex.P (the audio tape) was an indispensable link in a chain of reasoning towards an inference of guilt – Whether verdict unsafe and unsatisfactory – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.T. Barry	Solicitor for Public Prosecutions (Cwth)
For the Applicant	Mr P.G. Priest, Q.C. and Mr M. Croucher	Sherill O’Connor-Gray

ORMISTON, J.A.:

On these applications I have had the benefit of reading the judgment of O’Bryan, A.J.A. in draft form. Subject to what appears below I agree with his reasons.

There is really only one aspect of the application which has caused me concern, namely the use of the tape recording (and the related transcript) of the conversation between the applicant and one Haunga, who admittedly collected the parcel of amphetamines sent from England and who placed that parcel in his car before travelling to Genoa, a small town in the eastern Victoria, for the purpose of meeting the applicant. The tape recording was taken by a microphone hidden on Haunga’s body when he met the applicant that day and it runs for about 18 minutes.

The difficulties arise not so much in relation to the admission of that tape recording in evidence but in relation to the admissibility and use of a transcript of the tape recording which was said to be so indistinct as to be unintelligible to the human ear. It may be said, although the respondent disputed it, that without some understanding of what was said on the tape recording, the prosecution case would have been very thin, for the applicant’s dealings with the parcel otherwise were equivocal to say the least.

Nevertheless, notwithstanding the arguments put on behalf of the applicant, I believe the tape itself was admissible. If that be correct, then the argument based on the verdict being unsafe or unsatisfactory could not succeed, for there was sufficient on the tape, taken with the other evidence, for a reasonable jury properly instructed to be satisfied beyond reasonable doubt of the prosecution case. The real issue, the only issue upon which I have had any doubt, was whether the judge properly instructed the jury in relation to both the tape recording and the transcript prepared by Detective Constable McCartney.

As to the inadmissibility of the tape itself, the argument proceeded at first upon the basis that the judge’s assessment was right, namely that the tape was unintelligible, at least to the normal listener. If that had been right, then clearly without more there would have been a strong case for rejection of the tape. However the judge’s comments came early in the trial and were not repeated at its end, so far as I am aware. Counsel invited this Court to listen to the tape for ourselves. A first listening inclined one to the conclusion that it was almost unintelligible, but for a few brief and apparently irrelevant passages. However, on the second and third hearing far more was intelligible and, more importantly, much of the part of the tape which contained critical admissions or statements conceding the applicant’s knowledge and familiarity with Haunga and the parcel became relatively easy to pick up. When that was pointed out to counsel for the applicant, he did not seek to dissuade us from that conclusion; rather he concentrated on two other aspects, namely, its unreliability and the fact that its probative value would have been outweighed by its prejudicial effect. As to the latter contention, I think the argument was largely misconceived inasmuch as most relevant and damning evidence in a criminal trial, certainly in relation to serious offences, is prejudicial. I am not asserting that no evidence which is relevant to the issue can never be excluded on this basis; rather the issue ordinarily should only arise where some marginally relevant evidence has a highly prejudicial aspect to it which might lead to the judge’s discretionary exclusion of it. The respondent sought to argue that the prejudicial nature must always be extraneous to the events sought to be proved, but I am not entirely sure that that is correct as a general proposition. Photographs of the deceased are almost invariably relevant at a murder trial, but frequently they are excluded as a matter of discretion if they add little to the oral evidence. If accepted for what it appears to prove, however, the evidence on the tape in this case was both highly relevant and therefore highly prejudicial. There was, however, no proper reason for excluding it on that basis for its prejudicial effect did not outweigh its probative effect.

The unreliability of the evidence cannot be taken very far in this case if it is to found the basis for its exclusion. If it had been correct to say that the tape and its contents were virtually inaudible then it might fairly have been said that it was an unreliable account of what had been said between the parties. The more that can be heard of the tape, the less easy it is to conclude that its unreliability must have led to its exclusion. Otherwise one would get to the point of excluding partly audible tape recordings on the ground that they are only partly reliable and there must certainly be a more precise basis for considering the question of exclusion. If necessary such a tape recording may be edited, as frequently occurs. In the present case sufficient of the tape was capable of being heard by the members of the jury for the judge not to exclude it. It was not argued specifically that various aspects of the inaudible part of the conversation changed its character or nature or made the whole of it misleading. I can see no basis for the exclusion of the tape on any basis.

How the judge then dealt with the tape poses a somewhat harder problem for it brought with it the issue as to whether the transcript of the tape recording was admissible and, if not, how it could properly have been used by the jury. In the first place it was suggested that the transcripts of the video tape recording of the applicant’s meeting with Mr Haunga had wrongly been admitted into evidence but, even if it had not, the judge wrongly dealt with it as if it formed part of the evidence. Undoubtedly there was an element of confusion at times but a careful perusal of the transcript will show how frequently the judge insisted that the transcript could be used only to aid the jury’s understanding of what in fact was on the tape recording, which he correctly directed them was the true evidence of the matters revealed. It is sufficient to say that the matters referred to by O’Bryan, A.J.A. in his judgment show that from the outset the judge had properly drawn the distinction between the content of the tape and the transcript and the limited use to which the transcript could be put. At one stage it was not clear on the hearing before us whether that which had been admitted as Exhibit Q “for identification only” had ultimately been admitted absolutely. But that clearly did not take place and was inconsistent with the judge’s rulings throughout the trial. The only doubt arises because of some incautious references to tape and transcript in the course of the charge.

In the first place complaint was made as to the reference made to Detective Constable McCartney’s being an expert so that the jury might, by inference, come to a conclusion that what was on the transcript prepared by him was evidence given by an expert witness. Unfortunately, so it would appear, the judge chose to give a general direction as to expert evidence at the same time as he was dealing with the transcript but a proper reading of the transcript of what he said, as analysed by O’Bryan, A.J.A., shows that he was not thereby treating, nor suggesting to the jury that it might treat, the transcript as an item of evidence. Every other statement at that stage of the charge made clear, as the judge said in the latter part of that particular set of directions, namely, that it was a transcript “that is before you not as evidence but to assist you in understanding“ the tape. Moreover there was, in my opinion, no error as a whole in the way that he dealt with the expert abilities of the officer McCartney in preparing that transcript, for he said to them time and time again that it went to assist them in their assessment of the real exhibit, the video tape, because of the number of times that he had listened to it. It was, however, a matter for them to assess the true intelligibility of that tape recording.

Whether or not the officer McCartney was a true expert was ultimately therefore of little consequence. This is because it was made clear in the joint judgment in the High Court in Butera v. Director of Public Prosecutions (Vic.)[1] that, where there are deficiencies in the recording which “may make it necessary to play tapes more than once to enable a better understanding, … the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc.” The words cited were in fact taken from a judgment of Cooke, J. speaking for a majority of the New Zealand Court of Appeal in R. v. Menzies[2], which the joint judgment in Butera said was “the basis on which a transcript may be provided to the jury”.[3] As to the alleged unintelligibility of the tape recording in this case, I was also inclined on first watching and hearing to view 95% of it as unintelligible, but, as I have already said, playing the tape over several times makes far more of it intelligible as one gets used to the voices recorded on the tape. Circumstances such as the present doubtless led the judges responsible for the joint judgment in Butera to say[4]:
[1](1987) 164 C.L.R. 180 at 187-188, per Mason, C.J., Brennan, J. and Deane, J.
[2][1982] 1 N.Z.L.R. 40 at 49.
[3]Butera at 187.
[4]At 187.

“A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener’s ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape.”[5] (Emphasis added.)

The joint judgment then appeared to accept that practice in these terms[6]:
“Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation.”

The reason for this approach by the High Court was, as I would understand it, because the “best evidence” rule made such transcripts inadmissible.[7]

[5]Cf. per Dawson, J. at 195.

[6]At 187.

[7]See the approval by the joint judgment of the reasoning in Conwell v. Tapfield [1981] 1 N.S.W.L.R. 595 in preference to R. v. Gaudion [1979] V.R. 57 so as to render a transcript inadmissible in evidence: Butera at 184-187.

The precise basis on which a transcript can be considered by the jury or other trier of fact must therefore depend on what the joint judgment intended to permit. The word used in the first passage quoted was the equivocal “receive”, albeit that the transcripts are being received “not as evidence of the conversation”. The second passage quoted employs the word “provision” in the context of permitting “the provision of a transcript for the use of the jury”. So the joint judgment proceeded[8] to consider the “basis on which a transcript may be provided to the jury …”. It then referred to the passage from the judgment of Cooke, J. in Menzies, although that tends to obscure the precise basis upon which a transcript ultimately comes before the jury. Undoubtedly the practical reasons for receiving a transcript are well expressed in that New Zealand judgment, but Cooke, J. ultimately described the production of a transcript as forming part of the evidence, in particular of the expert, ad hoc or otherwise, who prepares the transcript. As to this the joint judgment appears emphatically to deny a transcript the characteristic of evidence, in that it followed with the proposition[9] that:

“The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape.”

After referring to a Scottish decision in which it was suggested that the evidence of a transcript might be very doubtfully “competent as evidence of the content”, the joint judgment asserts[10] “it seems better to acknowledge that such a transcript is merely an aid to the jury’s understanding of the evidence derived from playing over the tape in court”.

[8]At 187.

[9]At 188.

[10]At 188.

Although in the following paragraph of the joint judgment there is a reference to the possibility that a transcript “may be permitted in evidence for this limited purpose”[11], I do not believe, in the light of the emphatic statements earlier appearing, that it was intended to state that the transcript ought to be admitted in evidence as an exhibit: rather it was referring to the transcripts in Butera which were in fact translations and which therefore had that further element which required their production in evidence as such. For this purpose the judgment of Dawson, J. is not of assistance, although he formed part of the majority in Butera, for it is clear that he would accept the transcript as secondary evidence of the conversation, in that he would have refused to apply the best evidence rule to transcripts of tape-recorded conversations.
[11]Emphasis added.

I would conclude, therefore, that the transcript was properly not received in evidence as an exhibit, nor did the learned judge wrongly treat that transcript as if it had been part of the evidence.

There remains the question whether the judge correctly directed the jury in relation to the use of the transcript. I have already said, as is evident from the detailed discussion by O’Bryan, A.J.A. in his judgment, that the judge very fairly and persistently directed the jury as to the nature of the transcript and its inadmissibility as evidence, consistent entirely with the reasoning of the majority of the High Court in Butera. Thus he correctly commenced his description of this evidence by referring to “the evidence and the document that has gone in to assist you … that is the transcript” (emphasis added). So in his principal discussion of the use of the transcript there was no inconsistency in his careful directions to the jury and his warnings as to the possible misuse of the transcript.

It is only later in his charge when he describes the evidence in detail that there appears to have been a lapse in his description of the nature of the evidence before the jury. Thus he said:

“The essential part of the evidence of course that was tendered to you was Exhibit Q. That has been read to you on a number of occasions. I do not intend to read through that. You can do that yourself in the sense that it seems to me you can hear the tape and you will have to decide whether the transcript which has been put in for your assistance does assist you or whether you can ascertain from the evidence itself what is being said.”

There was one later reference to the transcript, but again the learned judge correctly emphasised to the jury the primacy of the tape recording itself. The particular passage undoubtedly contains an error for, as he carefully explained to them earlier, the “essential part” of the evidence was the tape recording, which was in fact Exhibit P. Undoubtedly if that passage had stood on its own or if the earlier directions to the jury had been equivocal or capable of leading to any misunderstanding on their part as to the nature and use of the transcript, then the judge’s observations might have been seen as being capable of misleading the jury in that important respect. However, in the circumstances I do not consider that the jury would have misunderstood what the judge was referring to or how they were

obliged to use the tape recording itself and the transcript put in for their assistance. In the context of the whole trial and having regard to the totality of the charge, I do not believe it could have led to any misunderstanding on the part of the jury and consequently do not believe that it thereby resulted in any miscarriage of justice.

The applications should therefore be dismissed.

BUCHANAN, J.A.:

In my opinion the applications for leave to appeal against conviction and sentence should be dismissed for the reasons stated by Ormiston, J.A. and O’Bryan, A.J.A.

O'BRYAN, A.J.A.:

After trial in the County Court of two counts in an indictment the applicant was found not guilty on count 1 and guilty on count 2. The two counts were laid in the alternative and it is only necessary to refer to count 2.

Count 2 charged that on or about 6 January 1999 at Genoa in the State of Victoria the applicant did, contrary to paragraph 233B(1)(c) of the Customs Act 1901, without reasonable excuse, attempt to obtain possession of prohibited imports to which s.233Bof the Act applied, namely narcotic goods consisting of not less than a trafficable quantity of the narcotic substance amphetamine which had been imported into Australia in contravention of the Act.

The trial concluded on 19 February 2001 with the guilty verdict on count 2. After plea on 21 February the trial judge sentenced the applicant on 28 February to be imprisoned for a period of four and a half years (4.5). A period of three and a half years (3.5) was fixed before the applicant could become eligible for parole. The court declared that 37 days spent in custody was the time already served under the sentence.

The applicant gave notice for leave to appeal the conviction; the grounds were amended by leave of the Registrar of Appeals on 30 August 2001 to substitute three new grounds.

Grounds of appeal

1A (i) The trial judge erred in admitting Exhibit P (i.e. the combined audio and video tape of the meeting between the applicant and Darren Patrick Haunga on 6 January 1999) into evidence.

(ii)A miscarriage of justice resulted from Exhibit P being admitted into evidence.
1B(1)The trial judge erred in permitting Exhibit Q (i.e. a purported transcript of Exhibit P, the combined audio and video tape)
(a)to be used by the jury at the time Exhibit P was played during the trial;
(b)to go to the jury during deliberations.

(ii)A miscarriage of justice resulted from the jury being permitted use of Exhibit Q.

(a)at the time Exhibit P was played during the trial
(b)during deliberations.

1C(i) The trial judge erred in his directions concerning the use of Exhibit Q; and in particular, he failed to direct the jury sufficiently or at all that the contents of the transcript, Exhibit Q ought not to be substituted for the contents of the combined audio and video tape, Exhibit P.
(ii)The trial judge erred in his directions concerning expert evidence; and in particular –
(a)he ought not to have directed the jury that Ian Robert Samuel McCartney might be regarded as an expert as far as Exhibits P and Q were concerned.
(b)the directions were apt to encourage the jury to substitute the opinion of Ian Robert Samuel McCartney as to what was contained in Exhibit P for their own
(c)the directions were apt to encourage the jury to substitute the contents of Exhibit Q for what they could discern from Exhibit P.

2.The trial judge erred in his directions concerning circumstantial evidence; and in particular, he failed to direct sufficiently or at all that
(i)a verdict of guilty could not be returned unless the jury were satisfied beyond reasonable doubt that the conversation between the applicant and Darren Patrick Haunga on 6 January 1999 contained in Exhibit P related to amphetamines or narcotic goods;
(ii)a finding that the conversation contained in Exhibit P related to amphetamines or narcotic goods was an indispensable link in a chain of reasoning towards an inference of guilt;
(iii)a verdict of guilty could not be returned unless the jury were satisfied beyond reasonable doubt that the conversation between the applicant and Darren Patrick Haunga on 6 January 1999 contained in Exhibit P demonstrated an intention to take possession of narcotic goods;
(iv)a finding that the conversation contained in Exhibit P demonstrated an intention to take possession of narcotic goods was an indispensable link in a chain of reasoning towards an inference of guilt.
3AThe verdict of guilty on count 2 is unsafe and unsatisfactory and in particular a reasonable jury, properly instructed, ought to have entertained a reasonable doubt as to his guilt.
BAn aggregate of the errors in 1A, 1B, 1C and 2 led the trial to miscarry.

The applicant gave notice of application for leave to appeal against sentence relying upon four grounds.

1.That the learned trial judge erred in finding as a basis for sentencing that the applicant had known of the impending arrival subject matter of the charge prior to receiving the telephone call from Haunga on 5 January 1999.
2.That the learned trial judge erred in finding as a basis for sentencing that the criminal culpability of the applicant and Haunga was commensurate.
3.That the learned trial judge erred in finding as a basis for sentencing that the criminal culpability of a person guilty of the offence of being knowingly concerned in the importation of a narcotic substance is commensurate with that of a person guilty of attempting to possess a prohibited import.
4.That the sentence is manifestly excessive in all the circumstances.

Summary of facts

On 12 November 1998 the applicant departed Australia and flew to England. He returned to Australia on 26 November 1998. On 29 December 1998 Australian Customs Service officers intercepted a parcel at the Melbourne Airmail Transit Centre, Tullamarine addressed to Darren Patrick Haunga, C/- Mallacoota Post Office, Victoria. The parcel had been airfreighted to Australia from England and had English stamps affixed to it which had been cancelled in Cheshire on 22 December. The parcel was examined by police and found to contain inside a pink plastic case a stamp and pen kit, a block of white substance wrapped in clear sticky tape, and a Christmas card in a red envelope. A forensic analysis of the block revealed a white chalky paste type substance weighing 947.1 grams. The substance was 43.6% amphetamine. The amphetamine content of the original bulk net of 947.1 grams was calculated to be 412.9 grams.

A block of inert substitute material was prepared and substituted for the amphetamine block and re-wrapped and sent by post to Mallacoota Post Office.

The postal licensee at Mallacoota had known Haunga for about four months in January 1999. His habit had been to visit the post office on average about twice a week or less for there was no home delivery service. About a week before Christmas 1998 Haunga began to attend the post office on a daily basis and ask if there was any mail for him. Between 1 January and 5 January Haunga visited the post office daily, the last visit, on 5 January was at about 3.30 p.m.

On 5 January 1999 at 11.15 a.m. the parcel arrived at the Mallacoota Post Office. At about 1.05 p.m. Haunga entered the post office and collected the parcel. He placed the parcel in his vehicle and walked to a telephone box where he was observed to use the telephone at 1.17 p.m. From there Haunga proceeded to a caravan park where he entered a caravan. At 7.15 p.m. he was intercepted by Federal Police. A search of Haunga’s vehicle revealed the parcel on a seat in the vehicle, unopened.

Subsequently, on 5 January when interviewed by the police Haunga agreed to assist the police with a controlled delivery of the parcel.

The phone call made by Haunga at 1.17 p.m. concluded at 1.20 p.m. It was made to a subscriber for the number in whose home the applicant was staying on 5 January. The subscriber, Kearns, had known the applicant for about four years. The applicant had been in residence in his home from 1 January to 5 January 1998 and had access to his telephone.

At about 2.30 p.m. on 5 January a V-Line rail and coach ticket was procured by one Owen O’Neill, at Spencer Street Station for travel to Genoa departing Caulfield railway station on 6 January at 8.08 a.m. The passenger used a pensioner travel voucher to procure the ticket.

At 1.30 p.m. on 6 January a concealed audio cassette recorder was attached to Haunga and he travelled to Genoa with Federal Police. The parcel was placed on the front seat of Haunga’s vehicle which was parked near the V-Line bus stop in Genoa and the tape recorder was activated at about 3.05 p.m., about 30 minutes before the V-Line bus arrived in Genoa. Haunga met the applicant and the conversation between them was recorded. Federal police maintained surveillance nearby using a video recorder.

At about 3.50 p.m. the applicant was arrested shortly after he entered Haunga’s vehicle. At Mallacoota Police Station the applicant made a “no comment” interview.

First trial

On 1 May 2000 the first trial against the applicant commenced in the County Court. The applicant’s co-offender Haunga had been arraigned and pleaded guilty and during the course of his plea had undertaken to give evidence for the prosecution. On 3 May when Haunga was called by the Crown he refused to be sworn and the trial judge had to terminate the trial because the jury had been told in opening by the prosecutor the evidence expected to be given by Haunga. No doubt the Crown had expected Haunga to give evidence about the tape recorded conversation.

Second trial

The jury in the second trial was unable to reach a unanimous verdict and a third trial was decided upon by the Director of Public Prosecutions (Commonwealth).

Third trial

When the third trial began in the County Court on 12 February 2001, the trial judge was informed by the prosecutor that the Crown did not intend to call Haunga and in his absence the Crown would lead evidence of the covert taped conversation between the applicant and Haunga on 6 January 1998 by means of the audio tape dubbed on the video and a transcript purporting to be the contents of the tape compiled by Detective Constable Ian McCartney which would be given to the jury only for the purpose of assisting their understanding of the words on the audio tape. Counsel for the applicant objected to the jury being given a transcript of the audio tape. The prosecutor told the trial judge that he did not ask that the transcript be admitted into evidence at any stage.

Counsel for the applicant informed the trial judge (in the absence of the jury):

1. There was no issue at all about the importation.
2. There was no issue at all about Haunga’s activities on the 5th (5/1/99).
3.There was no issue about the applicant’s travelling to Mallacoota and the circumstances of his travelling.
4.There was no issue about speaking to Haunga, buying a ticket and going to meet Haunga.
5.The central issue in the case was not whether the applicant travelled to Genoa on 6 January 1999 but whether he did so with the intention of taking possession of the parcel that Haunga had collected.

The trial judge was informed by counsel that the audio tape and the video recording had been put together on one cassette. Objection was made to the audio part of the tape being played to the jury because it was unintelligible, at least as to over 75% of the recording, which represented about 15 minutes of 20 minutes recording time. Three reasons were relied upon for the objection to the admissability of the audio tape:
1.        unreliable;
2.        unfair to the accused, and
3.        prejudice outweighing probative value.

On the following day the trial judge observed that he could not understand one word on the tape using “enhancers” and asked counsel rhetorically: “How could it possibly be admitted?” The prosecutor then asserted that when the audio tape was played through the court sound system without the headphones the tape was much clearer.

The audio tape was played in court, but the judge still considered the sound close to hopeless. Then the video tape on to which the audio tape had been dubbed was played in court and his Honour observed: “clearly a better standard than the other one”.

His Honour asked counsel for the accused was there any issue with the transcript integrity. Counsel said there was and proposed that evidence be called. Before evidence was called on the voir dire the judge was provided “the current transcript” and it was marked Exhibit 1 on the voir dire. The first transcript was marked Exhibit 2.

Voir Dire

Counsel for the Crown called Detective Constable McCartney who was the case officer in the investigation of the parcel. McCartney said that he listened to a playback of the covert tape recording taken from Haunga after the arrest of the applicant. It was a DAT tape of a very small type requiring listening equipment. The DAT tape was processed on to a larger tape and an enhancement made of the DAT tape by reducing background noise and enhancing the voices to give better quality listening. The enhanced audio tape was marked Exhibit 3 on the voir dire. It was used to prepare the transcript for the brief of evidence against the applicant. McCartney said the initial work on the transcript was carried out by Federal agent Maslin and then he took over because he was able to understand the applicant’s accent as both he and the applicant originated from the United Kingdom, McCartney from Belfast, Northern Ireland and the applicant probably from Scotland. Using high quality equipment over a period of time McCartney said he was able to prepare Exhibit 1 from the enhanced tape Exhibit 3. It superseded an earlier transcript (Exhibit 2) which had been used at the previous trial.

On the third day of the hearing the trial judge ruled that the audio tape dubbed on to the video tape and marked Exhibit 4 was admissible in evidence and that the transcript prepared by McCartney may be given to the jury to assist them to understand the words on the audio tape.

His Honour in his ruling said that he had listened to the tape dubbed on to the video three times and that the transcript (Exhibit 1) appeared as best he could ascertain to be an accurate record. In the ruling the judge indicated that a transcript could be given to the jury to aid their understanding of the tape in accordance with the principles stated in Butera v. D.P.P. (Vic.)[12]. His Honour said: “Having considered all the evidence I do not find that there is any technical objection to this tape being played to the jury, nor to a transcript being given to the jury ... one copy to go in with the jury at the time for their consideration and their verdict.”
[12](1987) 164 C.L.R. 180 at 188, 195 and 197.

The trial

When the hearing commenced following the jury empanelment the judge made some introductory remarks to the jury. Counsel had already told the jury about the transcript and how it could be used. His Honour said:

“...it is myself who will tell you how you use the transcript, not the officer who gives evidence or the Prosecutor.
What happens in regard to this is that the transcript is not evidence itself, it’s there to assist you. It’s very important, as the Prosecutor said to you in his opening, for you to understand the evidence is what is on the tape, and you will have the tape to listen to. However, because of the nature of the tape, it is such that it’s been necessary, as I said, for a person who is for the purposes – had the ability to listen to the tape on a number of occasions, he has determined and worked out a transcript of the tape, and you’ve heard portions of that read to you, and in due course, when the evidence begins, you will hear the tape.
However, the ultimate determination of what’s on the tape is yours, and that’s why it’s very important for you to understand that the transcription you have in front of you is to assist you in understanding the tape, and ultimately it’s your determination of what is on the tape. As Mr Sheales said to you, it’s not what someone says is on the tape that has to be decided, it’s what you say. What will be before you by way of transcription is to assist you in understanding what is on the tape. However, if finally you come to a view that your view of what’s on the tape is quite different to what’s on the transcription, your view prevails, because that’s the evidence, what’s on the tape, not what’s on the transcription.”

The witness McCartney was called on the fourth day of the hearing. He told the jury that on 5 January 1999 he was on duty with other police in the Mallacoota area when, at 11.15 a.m., the repacked parcel was given to Federal Agent Sheridan to deposit in the post office. A video recording was made of Haunga attending the post office. (It was marked Exhibit M and was shown to the jury).

McCartney described the surveillance maintained of Haunga on 5 January, of him entering and leaving the post office, of him making a telephone call from the phone box and of him being apprehended at 7.15 p.m. in the caravan park at Mallacoota.

McCartney then described how Haunga wore a concealed tape recorder on 6 January and of the parcel being placed underneath a blanket on the passenger side front seat of Haunga’s vehicle which was eventually parked near the bus stop in Genoa. He proceeded to describe the DAT tape which had been used to record the conversation between Haunga and the applicant and the process of transferring the sound from the DAT tape to a conventional size cassette and enhancement of the recording by reducing background noise.

McCartney identified the combined audio video tape and it was marked Exhibit P.

Before Exhibit P was played to the jury 12 copies of the transcript were provided to the jury. The transcript was marked Exhibit Q for identification. (It was identical to Exhibit 1 on the voir dire.) The label “for identification” was never changed in a formal sense.

McCartney explained the process of preparing the transcript and the equipment he used before Exhibit P was played. The jury was warned of the difficulty in hearing the voices on the tape. His Honour told the jury:

“Mr. Foreman and members of the jury, as I said to you in opening, and you heard both counsel refer to this in their opening and reply addresses, this tape is very, very difficult to hear, as you will shortly be appreciative of, and what is taking place is, in order to allow you to appreciate what is on it and make it intelligible, the transcript is being supplied to you. I stress again, the evidence is the tape, and what you make of the tape. That transcript is to assist you. If you determine that the tape, what you hear on the tape is different from what is on the transcript, that is what is the evidence, do you understand? Yes.”

Exhibit P was then played before the jury in court.

During cross-examination McCartney agreed there were six differences between the first transcript and the current transcript (Exhibit Q for identification).

At the conclusion of McCartney’s evidence the Crown closed its case and counsel for the applicant announced in the presence of the jury the defence was calling no evidence. A “no case” submission was rejected by the trial judge.

Two further matters were raised by counsel before final addresses commenced and ruled upon.

Counsel for the applicant again objected to the transcript (Exhibit Q) being provided to the jury when they retired to consider their verdict on the ground that it would be unfair in all the circumstances. The trial judge reaffirmed his earlier intention to allow the jury to have the transcript in the jury room. He said: “The transcript will go in with the exhibits”. This ruling made clear that the transcript would not go in as an exhibit.

Counsel for the applicant submitted that the case being a circumstantial case the trial judge should classify Exhibit P as an indispensable link in the chain of reasoning and indicate to the jury in his charge that unless they were satisfied beyond reasonable doubt that the parcel spoken about in Exhibit P was the parcel re-packed and taken to the Mallacoota Post Office and picked up by Haunga an ultimate inference of guilt upon the evidence would not be possible.

This submission was based upon the statement of principle enunciated by Dawson, J. in Shepherd v. R[13].
[13](1990) 170 C.L.R., 573 at 579.

The prosecutor submitted that no particular fact in the circumstantial case should be classified as an indispensable fact calling for a Shepherd-type direction.

His Honour ruled that it was inappropriate to give the direction sought by counsel for the applicant.

The charge began on the sixth day of hearing. In the course of instructing the jury as to the elements of count 2 the trial judge said:

“Most important in this instance must be that he had a knowledge that the item, the parcel in this instance contained a narcotic substance. You would have to be satisfied on all the evidence that he was aware of that. ... that there was amphetamine in this package.”

No exception was taken to this direction.

The direction on circumstantial evidence was based upon Shepherd and consistent with his Honour’s ruling that it was unnecessary for the jury to reach a conclusion of fact as to an indispensable intermediate step in the reasoning process towards an inference of guilt.

Ground 2 alleges error in this direction.

During the charge the judge referred to expert evidence in the context of a fingerprint expert. Then he discussed “the document that has gone in to assist you and that is the transcript”. He told the jury that McCartney was not a scientific expert, but had the expertise to assess what was on the tape with head phones and listening to it on a number of occasions.

The following passage in the charge has been subjected to considerable analysis and criticism during this appeal. It will be considered later in the context of ground 1C.

“You have heard that he has used head phones, and he has listened to it on a number of occasions, that the transcript started with a draft and then he’s taken it through and finally got the final draft that he is happy with. That does not mean that what it says is necessarily true because the ultimate opinion of what is on the tape, which is the exhibit, not the transcript, is yours, Mr Foreman and members of the jury. It is for you to give such weight to the opinions of expert evidence as you think should be given having regard to the qualifications of the witnesses. Their partiality, which is obviously an important matter in this case, or otherwise, of the witnesses, and the extent to which the opinion accords with such surrounding circumstances as you find proved.

Now, as I say, there is not an issue in regard to the handwriting. However, it is important to recall that that is a transcript prepared by the officer in charge of the police case. That is a transcript that is before you not as evidence but to assist you in understanding, what I do not think there can be any dispute about, is an unintelligible tape. And it is, however, your opinion as to what is on that tape, not the officers, that is the important thing. But as a matter of law, because of the amount of times he has listened to it that is why the transcript is allowed to go to assist you. But it does not bind you in any way. You are the people who decide what is on that tape. Are you satisfied what the Crown says about the tape? Or do you take the view of the tape that has been put to you by defence counsel in this matter?”

When his Honour summarised the evidence of McCartney he said:

“As to the issue of the transcript itself, he said there was no difference in the draft. He said that is just different phases of the draft of the transcript. He said he had worked on an original one. There had been a previous draft and the one tendered to the jury was the best and most accurate one that he could produce. That is that had been printed at the end of the process after he had continued to work on it and he submitted that you can indeed hear what is on his transcript on the tape.
That ladies and gentlemen was the evidence. The essential part of the evidence of course that was tendered to you was Exhibit Q. That has been read to you on a number of occasions. I do not intend to read through that. You can do that yourself in the sense that it seems to me you can hear the tape and you will have to decide whether the transcript which has been put in for your assistance does assist you or whether you can ascertain from the evidence itself what is being said.”

When the jury retired the foreman was provided with one copy of Exhibit Q for identification. The jury later requested and were provided with an extra 11 copies of Exhibit Q as they indicated they wished to all have a transcript as they listened to the video/audio tape (Exhibit P). Counsel were consulted and maintained their original views.

Ground 1A

Counsel for the applicant submitted that Exhibit P should have been excluded by the trial judge upon two bases:

· First, unreliability of the audio tape based upon its inaudibility.
· Second, the probative value of the words which could be heard was outweighed by its prejudicial effect.

Unreliability

Courts have accepted tape recordings as evidence of the conversations or other sounds recorded on the tape for almost half a century.[14] The circumstances under which the recording was made must be proved, unless the provenance of the recording and its continuity are not in issue, which was the case in the trial.
[14]Butera v. D.P.P. at 184 and the cases cited in the penultimate paragraph.

In Butera, the taped conversation had been conducted in a foreign language and an interpreter was called to provide an English translation. Playing over the tape in court before the jury would have been unintelligible.

It has been the experience of trial judges that the words on a tape are difficult to hear or understand, sometimes because of the poor quality of the tape or because the acoustics in the courtroom are insufficient.

Members of the Court were provided with a copy of Exhibit P and listened to the audio part of the tape outside the courtroom. Each member of the court informed counsel that words on the tape could be heard and understood, but background noise on the tape made some words unclear. Replaying the tape aided hearing spoken words.

The argument that Exhibit P was unreliable based upon its inaudibility is untenable. There can be no doubt that the enhanced audio tape listened to by the trial judge in the absence of the jury was unintelligible. His Honour said so. The position altered when Exhibit P was played several times by his Honour.

It cannot be gainsaid that the quality of the audio tape was generally poor, but it is an exaggeration to say that the tape is unreliable. The defence did not call evidence to show the audio tape was unreliable based upon its inaudibility. It could have done so when the voir dire was conducted and/or during the trial proper.

Probative value

Where the probative value of evidence is small but the prejudice likely to be produced by admission of the evidence is substantial the trial judge has a discretion to exclude the evidence. In Driscoll v. R.[15], Gibbs, J. observed: “The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused”.
[15](1977) 137 C.L.R. 517 at 541.

The principle has been stated in many authorities over the years.[16] In Swaffield, Toohey, Gaudron, and Gummow, JJ. considered the admissability of confessional material on the question of voluntariness, reliability and unfairness based upon a number of considerations including prejudicial effect.[17] Evidence of probative value in a criminal trial must inevitably have a prejudicial effect but it does not necessarily operate unfairly. Counsel for the applicant did not press the unfairness discretion based upon the inability to cross-examine Haunga. He simply argued that defects in the audio tape weakened the probative value of the tape, but did not lessen the prejudice created by the circumstances of the covert taping of the conversation.
[16]R. v. Swaffield (1997) 192 C.L.R. 159 at 183.
[17]At 191 to 193.

The submission lost much of its force when the members of the court listened to Exhibit P. Very shortly after the conversation between Haunga and the applicant commenced Haunga said: “I got that thing in the car”. Further conversation indicated that the applicant was concerned about the possibility of police surveillance. The applicant said: “We’re up shit creek mate”. Later he said: “How long have you had it, the parcel?” These words were difficult to hear, but McCartney included them in the transcript he prepared (Exhibit Q). Further into the conversation the applicant used words indicating from time to time his suspicion about the police: “I think we’re fucked”, and “We’re fuckin knackered, fuckin nicked. Listen, you gotta fuckin be smart and say absolutely fuck all”. Later, he said: “Ahhh, I don’t know what to fuckin do now, I mean we are fucked in the arse. Fucked right in the arse mate” and “Mate, if they’re watching we can’t even take it out of the car”.

Not all these words were distinct, but the overall impact of the conversation entitled a listener to infer that the applicant had travelled to Genoa to pick up a “parcel”, “that thing in the car” and he was most suspicious about police surveillance in Genoa. The conversation offered only one reasonable hypothesis why the applicant was in Genoa. He was there to take possession of the parcel. It would have been fanciful to reason that he was taking a holiday or had made the visit purely for social purposes.

In these circumstances I am of the view that Exhibit P was admissible in evidence.

Ground 1B

The trial judge permitted Exhibit Q to be provided to the jury to assist them to understand what was on the audio tape. In paragraph [42] I have set out the introductory remarks of his Honour to the jury. The prosecutor never asked that the transcript be admitted in evidence. For the purposes of identifying the nine page document provided to each member of the jury the document was marked Exhibit Q – for identification. It had been identified by its author McCartney, but the jury would have understood from the directions they were given when Exhibit P was played in court that the best evidence was what they could hear on the tape and the transcript was merely an aid.

The course followed by the trial judge had been vigorously opposed by counsel for the applicant at the trial. Opposition to it being given to the jury was maintained throughout the trial. The prosecutor relied upon the decision in Butera[18] for the proposition that the transcript could properly be admitted in evidence and it was appropriate for the jury to have copies in the jury room.
[18]Butera v. D.P.P. (1987) 164 C.L.R. 180.

It is desirable to refer in some detail to the facts in Butera because the facts in the present appeal have some similarity. During a trial in which Butera and four others were charged with conspiring to traffic in heroin, a tape recording of a conversation among some of the co-conspirators which was mostly in Punjabi but partly in English and partly in Thai or Malay was admitted in evidence. The tape recording had been made by means of a listening device in an hotel room. Some parts of the conversation were muffled or indistinctly recorded and it was necessary for a person familiar with the language used to listen to the tape repeatedly in order to determine what had been said. Two interpreters did that and produced written English translations of the conversation. The tape was played over to the jury, the interpreters gave oral evidence of their respective translations and verified their respective written translations. Each of the written translations was admitted in evidence and, as a documentary exhibit went into the jury room when the jury retired.[19]
[19]Butera at 181.

In the present appeal interpreters were not required because the language on the audio tape was English. However, parts of the conversation were indistinctly recorded and listening was impeded by background noise. Exhibit P was played to the jury and McCartney gave oral evidence of this appreciation of the words on the tape by producing Exhibit Q, but Exhibit Q was not admitted in evidence, it was marked for identification. Later, it will be necessary to consider whether it could have been admitted in evidence as a documentary exhibit.

In a joint judgment Mason, C.J., Brennan and Deane, JJ asked: “What is a transcript of a tape recording?”[20] Their answer:

“It is a document setting out words which can be heard on playing over the tape. It is not a copy of the tape, but a written record of what has been heard. Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, not by tendering evidence, whether written or oral, of what a witness heard when the tape was played over out of court.”

[20]Butera at 185.

Their Honours considered the purpose of using a transcript in circumstances such as occurred in the trial of the applicant.

“Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener’s ear becomes attuned to the words or other sounds recorded. The situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape.”[21]

Their Honours cited authority and continued:
“Where the quality of the recording is such that the provision of a transcript for the use of a jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation.”

Their Honours considered the directions appropriate to be given to the jury when a transcript is to be provided to them.
“The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape. In Hopes v. Her Majesty’s Advocate[22] the evidence (set out in a transcript) of a person who listened to an indistinct tape played over out of court was held to be ‘very doubtfully competent’ on the ground that it was primary evidence by an ad hoc expert of the tape’s content. With respect, it seems better to acknowledge that such a transcript is merely an aid to the jury’s understanding of the evidence derived from playing over the tape in court.”[23]

[21]Butera at 187.

[22](1960) JC 104.

[23]Butera at 188.

Putting aside for the present the status of McCartney, the trial judge intended to and did on a number of occasions instruct the jury consistently with the passage just cited.

In a separate judgment in which Dawson, J. agreed with Mason, C.J., Brennan and Deane, JJ. that the appeal should be dismissed his Honour said:

“Where a tape recording of a conversation in English is played to a jury and they are given a transcript of the contents of the tape, they ought, of course, to prefer what they have heard, that being the best evidence, if there is a conflict between the transcript and the tape. But the transcript is nevertheless, in my view, evidence, albeit secondary evidence, of the contents of the tape and not merely an aide memoir. Where the tape records a conversation which is inaudible or unintelligible to the ordinary listener or where the conversation is not in English, a transcript compiled by an expert, if necessary a translation, may, although secondary evidence, be the best available evidence of its contents.”[24]

[24]Butera at 197.

The decision in Butera has been applied in criminal trials in this State with a transcript of the contents of a tape being given to a jury, frequently by consent, when the tape is played in court. A courtroom is not a suitable environment in which to listen to a tape recording with all the necessary concentration and good hearing required. An appropriate direction, modelled on the passage cited above from Butera[25] is invariably given to the jury.
[25]At 188.

From what has been said I am very clearly of the opinion that the trial judge exercised his discretion correctly in allowing the jury to have a transcript of the tape when Exhibit P was played to the jury. The necessary Butera instruction was given to the jury in clear terms more than once during the trial.

Counsel for the applicant drew the court’s attention to a recent decision in the High Court: Smith v. R.[26]. I shall deal with the decision briefly because I am of the view the case is distinguishable from the present case and was concerned with the Evidence Act 1995 (N.S.W.). The principal issue was whether evidence of identification by two police witnesses of a person in a bank security photograph was admissible at trial. The majority of the court were of the view the evidence was irrelevant to the issue the jury could decide for itself and should not have been admitted. The court was of the opinion that the police witnesses were in no better position to make a comparison between the person in the photograph and the appellant in court. One curious result of the decision may be that something akin to a dock identification of an accused could be made by a jury at a future trial. The authority is not helpful.
[26](2001) 181 A.L.R. 354.

Ground 1C

The third part of ground 1 alleges error by the trial judge in his final directions to the jury. It is necessary first to consider the final paragraph cited from the charge in paragraph 46. It is a small point. Following a further instruction to the jury how they could use the transcript to assist them in understanding “an unintelligible” tape his Honour said: “But as a matter of law, because of the amount of times he has listened to it that is why the transcript is allowed to go to assist you.” It would have been better and more correct for him to have said: “Because of the amount of times he has listened to it the law allows me to give you the tape to assist you to hear what is on the tape.” The error is minor and, in my view, was unlikely to enhance the status of the transcript to the level of evidence in the form of a document. The jury well knew the purpose of the transcript was to assist them in understanding the tape.

The next impugned words are in the final quotation from the charge in paragraph 47. Counsel for the applicant argued that the words: “The essential part of the evidence of course that was tendered to you was Exhibit Q”, meant that Exhibit Q was evidence in the form of a document. I cannot accept this proposition firstly, because of the clear instructions given throughout the trial of the limited purpose of the transcript. Secondly, because immediately following the impugned words his Honour said: “and you will have to decide whether the transcript which has been put in for your assistance does assist you or whether you can ascertain from the evidence itself what is being said.”

A further question arises. Was there a departure from the ordinary practice set out in Butera and, if so, was it justified? Notwithstanding that I do not consider the trial judge ever intended to make Exhibit Q a trial exhibit and was not asked to do so by the prosecutor, nevertheless such a course could have been justified upon the basis that McCartney became an ad hoc expert of the tape’s content and the product of his expertise was the transcript. Such a course would have been dangerous and should not be encouraged. As I am of the view that the trial judge did not make Exhibit Q a trial exhibit expressly or by implication it is unnecessary to consider the point further.

I am not persuaded that the trial judge directed the jury that McCartney might be regarded as an expert. In Clark v. Ryan[27] the High Court held that a person should not be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people. After telling the jury that the document that had gone in to assist them was prepared by McCartney with headphones and listening to the tape on a number of occasions the trial judge said: “He is not a scientific expert, but he has made his assessment of what was on that tape and that has gone in to assist you.”. This direction followed a direction about expert evidence in which a reference was made to a “handwriting expert” (sic), later corrected to a “fingerprint” expert. The directions given in the charge concerning expert evidence could not have been interpreted by the jury as meaning that McCartney was an expert witness, or a witness whose opinion about what words were on the tape was more important than what the jury could hear and understand for themselves.
[27](1960) 103 C.L.R. 486.

The trial judge referred to expert evidence in the context of a witness giving evidence of an opinion “within the field of their expert scientific knowledge such as the (sic) handwriting expert”. This was later corrected to fingerprint expert. McCartney was never qualified as a person having scientific knowledge. He was described as “the officer in charge of the police case” who prepared the transcript.

Finally, on ground 1 I am of the view that the trial judge did not err when he sent into the jury room a copy of Exhibit Q to assist them. The jury asked for more copies, no doubt when they were playing the tape in the jury room, to assist them and his Honour obliged them. No error occurred and no miscarriage of justice resulted from the admission into evidence of Exhibit P, the provision of the transcript to the jury and the directions of the trial judge.

Circumstantial evidence

Ground 2 alleges error in the trial judge’s directions concerning circumstantial evidence and, in particular, from his failure to give the jury a direction in relation to Exhibit P, that the taped conversation was an indispensable intermediate step in the reasoning process towards an inference of guilt and must be established beyond reasonable doubt.

That the case against the applicant was circumstantial is common ground. It is convenient to set out chronologically the facts and circumstances said by the Crown to prove the count under consideration beyond reasonable doubt.

·   Background facts, including the applicant’s long-term friendship with Haunga and his visit to the United Kingdom in mid to late November 1998.
·   Postage from the United Kingdom on 22 December of a parcel containing a block of amphetamine in a clear plastic bag the net weight being 947.1 grams addressed to Haunga care of the Mallacoota Post Office.
·   From approximately 18 December Haunga attended the post office daily which was unusual and did so until 5 January 1999.
·   The parcel was intercepted on 22 December in Melbourne and police substituted an inert substance for the block of amphetamine before dispatching it through the post to Mallacoota.
·   Haunga picked up the parcel at Mallacoota from the post office at 1.05 p.m. under police observation.
·   Haunga made a telephone call from a phone box outside the post office at 1.17 p.m. of approximately 2-5 minutes duration.
·   The subscriber to the number called was Kearns who said in evidence that on 5 January the applicant was in residence at his home and had access to the telephone.
·   At 2.22 p.m. the applicant was at Spencer Street railway station obtaining a V-line ticket for travel to Genoa (Victoria) via Mallacoota on the following day.
·   Haunga drove his vehicle from the post office to a caravan park after making the telephone call leaving the parcel on the seat of his vehicle unopened until 7 p.m. when he was arrested.
·   The applicant departed Melbourne for Genoa at 8.08 a.m. on 6 January and arrived in Genoa at 3.35 p.m. He travelled light with $3.00 cash and a small quantity of clothes in a bag.
·   Haunga had agreed to co-operate with police after his arrest and was wearing a tape recorder taped to his body when he met the applicant in Genoa at the bus stop. The parcel was in Haunga’s vehicle.
·   At about 3 p.m. the tape recording device was activated and soon after the applicant met Haunga and a conversation between them was taped (Ex.P).
· The video film showed the movements of the applicant into and around Haunga’s vehicle and the tape recorded the conversation, parts of which are set out in paragraph [74].
·   The applicant was arrested in Genoa as he was leaving with Haunga.

The Crown case on count 2 was that the circumstantial evidence proved beyond reasonable doubt that the applicant attempted to take possession of the parcel he believed contained a prohibited import.

In the charge his Honour directed the jury:

“Now, in this particular case the Crown presents the circumstantial evidence and relies on the circumstantial evidence as being presented in this way. It says that such evidence fits together to you like the pieces of a jigsaw puzzle to make a picture. In such a case the strength of the proof does not depend upon any particular piece of the puzzle, but upon the clarity of the picture when the pieces are properly assembled. You may even have a sufficiently certain picture without using all the pieces, or while entertaining doubts as to whether some pieces are from this puzzle or another one.
In a case such as this you should examine the assemblage of the pieces with care to see that enough of them exist and they could only be assembled to paint the picture of guilt If they can be assembled to paint some other picture you would have a reasonable doubt about the existence of the guilty picture being put by the Crown.
In any kind of circumstantial evidence case I direct you that the test which must ultimately be applied consistently with the requirement of proof beyond reasonable doubt is ‘does this evidence exclude every other reasonable explanation but that of guilt?’”

In Shepherd[28] the High Court held that Chamberlain v. R. (No.2)[29] does not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. A direction in those terms was not required to be given to the jury unless it is necessary for the jury to reach a conclusion of facts as an indispensable intermediate step in the reasoning process towards an inference of guilt; then that conclusion must be established beyond reasonable doubt.
[28](1990) 170 C.L.R. 573.
[29](1984) 153 C.L.R. 521.

In Shepherd, Dawson, J. considered in depth what constitutes indispensable links in a chain of reasoning towards an inference of guilt when circumstantial evidence is relied upon to prove guilt. His Honour said[30]:

“Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where ‑ to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 198 1), par. 2497, pp. 412‑414 ‑ the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”

[30]Shepherd at 579.

Since Shepherd was decided, in a circumstantial evidence case it has been sufficient in the usual case to tell the jury that guilt must be established beyond reasonable doubt and that they could not be so satisfied where any other inference consistent with innocence is reasonably open on the evidence. It is unnecessary and inappropriate to tell the jury that they must be satisfied beyond reasonable doubt of each fact they rely upon in the chain of reasoning which concludes in guilt. Such a direction would be too favourable to the accused.

Should the metaphor of strands in a cable, or links in a chain, or pieces in a jigsaw puzzle be used the jury will understand the process of “sequential reasoning”[31] in completing the cable, the chain or the puzzle does not require that the strands in the cable, the links in the chain or the pieces in the puzzle must all be proved beyond reasonable doubt. The jury must be directed in an appropriate case that a particular fact identified by the judge is capable of proving an element in the charge or is critical in the chain of sequential reasoning. (By critical, I mean as indispensable to proving guilt). Then, the jury must be told they could not convict the accused unless they were satisfied of the particular fact beyond reasonable doubt.
[31]R. v. Kotzmann (1999) 2 V.R. 123 at 129.

Count 2 required the Crown to prove three elements of the charge:

(i)That the accused knew or believed that the parcel contained narcotic goods which had been imported into Australia in contravention of the Customs Act.
(ii)That the accused intended to obtain possession of the goods in the parcel.
(iii)That the accused did acts which were sufficiently proximate to constitute an attempt to obtain possession.

The chronology of facts and circumstances referred to in paragraph [95] contained a number of intermediate facts and circumstances from which the jury was invited by the prosecutor to draw an inference of guilt beyond reasonable doubt, not from a single piece of evidence, but from the totality of evidence.

Counsel for the applicant submitted that without the conversation on Exhibit P the other facts and circumstances were incapable either alone or in combination of proving the applicant’s guilt on count 2 and at most only raised suspicion.

In the alternative, counsel submitted, the conversation on Exhibit P was an intermediate fact constituting an indispensable link in a chain of reasoning towards an inference of guilt. Some of the conversation related to the parcel and showed that the applicant knew or believed that the parcel contained narcotic goods and that he was in Genoa to take the parcel into his custody.

Beyond peradventure, the conversation on Exhibit P was an important piece of evidence, provided the jury was able to hear critical words such as: “I got that thing in the car” (Haunga); “How long have you had it, the parcel?” (the applicant); “I think we’re fucked”; “We’re fuckin knackered, fuckin nicked” (the applicant). Those words in particular provided an important piece in the “jigsaw puzzle” example given to the jury in the charge. The word “parcel” could be used by the jury as providing the reason why the applicant was in Genoa.

Standing alone, of course, the conversation on Exhibit P, or so much of it as the jury could hear, was meaningless in terms of Count 2. No mention was made about the contents of the parcel. It was left to inference that the parcel in which the applicant had expressed interest was the parcel collected by Haunga believed to contain narcotic goods.

Without the conversation on Exhibit P, I am of the view the jury could have used all the facts and circumstances to conclude that the applicant knew or believed the parcel received by Haunga contained narcotic goods and that his prompt response to Haunga’s telephone call shortly after Haunga picked up the parcel in travelling to Genoa and meeting Haunga was for the purpose of taking the parcel into his custody. A very relevant piece of evidence was Haunga’s reaction to the parcel addressed to himself in that he telephoned the applicant promptly and left the parcel unopened in his vehicle for about six hours.

In my view, Exhibit P was not an indispensable fact upon the way to an inference of guilt. It is important to recall that before the jury was empanelled counsel for the applicant identified the central issue in the case as whether the applicant travelled to Genoa with the intention of taking possession of the parcel that Haunga had collected. Without Exhibit P, such an inference was reasonably open to the jury using the totality of the other evidence, in my view.

Counsel was critical of the metaphor “jigsaw puzzle” used by the trial judge in his charge in explaining circumstantial evidence. In Shepherd[32] “strands in a cable” was accepted by the court as an appropriate metaphor unless an item of evidence is identified as an indispensable, intermediate step in the reasoning process towards an inference of guilt. Then the jury needs to be told that conclusion must be established beyond reasonable doubt. The metaphor chosen by the trial judge is appropriate, if an adequate explanation is given to the jury. I consider an adequate explanation was given to the jury consistent with the decision that Exhibit P was not an indispensable intermediate step in the reasoning process. Ground 2 fails.
[32](1990) 170 C.L.R. 573.

Grounds 3A and 3B

These grounds may be considered together.

· Verdict unsafe and unsatisfactory.
· Aggregate of errors.
Counsel for the applicant submitted that upon the whole of the evidence a reasonable jury, properly instructed, ought to have entertained a reasonable doubt as to the applicant’s guilt on count 2. This was the question asked in M v. R.[33]. The court said that in answering that question the court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the fact that the jury has had the benefit of having seen and heard the witnesses.[34]

[33](1994) 181 C.L.R. 487.

[34]M v. R. at 493.

Counsel submitted:

(i)Exhibit P is so inaudible as to render speculative any purported inference that the conversation establishes an attempt to obtain possession of narcotic goods.
(ii)The conversation is so equivocal as to render any purported inference extremely dangerous.
(iii)The facts and circumstances relied upon by the Crown were incapable of satisfying a reasonable jury of the applicant’s guilt beyond reasonable doubt on count 2.
(iv)The jury had no advantage over the court of determining guilt.

Exhibit P has been accepted as having probative value in that a relevant portion of the conversation can be heard, but with difficulty. I have identified significant words from which the jury could have inferred that Haunga and the applicant were discussing the parcel in terms that indicated the applicant would take possession of it knowing or believing that it contained narcotic goods. The conversation was elliptical and required the listener to have an understanding of other facts in order to understand it, but it was not so equivocal as to render any inference extremely dangerous.

The third and fourth limbs of the submission are simply an assertion that the verdict was unsafe and unsatisfactory. I disagree. The jury was properly instructed, the central issue was made clear to them and they had Exhibit P to play over in the jury room many times, if they wished. The verdict of guilty was clearly one the jury acting reasonably was entitled to return.

I am of the view that only one minor error was identified in this Court and that related to the trial judge’s description of McCartney as an expert witness. It was not a crucial matter for the jury was instructed at an earlier stage of the charge: “he (meaning McCartney) is not a scientific expert.”

Ground 3A and 3B fail.
Sentence

The principal ground is that the head sentence of 4.5 years imposed on the applicant is excessive in the circumstances. Reference needs to be made to the sentence imposed on Haunga after he pleaded guilty in the County Court to count 1 – being knowingly concerned in the importation of a prohibited import, namely amphetamine.

On 10 June 1999 Haunga was sentenced to be imprisoned for 3 years with release after 24 months of the sentence upon entering into a recognizance to be of good behaviour for 12 months. The sentencing judge said he would have imposed a sentence of 4.5 years with a non-parole period of 3.5 years but for Haunga’s promised future co-operation at the applicant’s trial.

After Haunga reneged on his promise of future co-operation the Director of Public Prosecutions for the Commonwealth of Australia appealed the sentence at first instance pursuant to the Crimes Act 1914 (Cth.), s.21E[35] the Court of Appeal allowed the appeal and re-sentenced Haunga to be imprisoned for 3 years and 9 months with release after 2 years and 9 months on a bond to be of good behaviour for two years.
[35]D.P.P. (Cth.) v. Haunga [2001] VSCA 73.

The statutory penalty applicable to count 1 is the same as the penalty applicable to count 2.

The sentencing judge found no distinction between the criminality of Haunga and the applicant. He considered the applicant by his actions was an important cog in an overall plan to obtain possession in Australia of prohibited narcotic goods, a significant quantity being 412 grams of pure amphetamine. In his sentencing remarks the judge observed that the applicant, unlike Haunga, would receive no discount for a plea of guilty nor for assisting the police at Genoa.

The principal emphasis of the submission as to sentence was that a distinction should have been drawn between Haunga and the applicant for the purposes of sentence because Haunga had been knowingly concerned in the importation and had taken actual possession of the parcel at Mallacoota. Whilst it is true that Haunga did those things, it cannot be ignored that it was the applicant who attempted to obtain possession of the parcel from Haunga. As between the applicant and Haunga, it seems likely that the applicant was the principal and Haunga was the agent in the collection of the parcel. Be that as it may the sentence imposed on the applicant was not manifestly excessive in the circumstances. Neither the head sentence, nor the non-parole period fixed call for intervention by this Court.

In my view, the applications for leave to appeal against conviction and sentence should both be dismissed.

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[2001] VSCA 227

14 December 2001