R v Tan
[2002] WASC 42
R -v- TAN [2002] WASC 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 42 | |
| Case No: | INS:70/2001 | 15 FEBRUARY 2002 | |
| Coram: | McLURE J | 14/03/02 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN KOK CHENG TAN |
Catchwords: | Criminal law Acquittal on charge of being knowingly concerned in importation of narcotics No verdict on alternative charge of possession of narcotics Whether retrial on possession charge involves impermissible double jeopardy Whether possible to give a direction which gives full benefit of acquittal Whether retrial an abuse of process Meaning of "foredoomed to fail" in criminal proceedings |
Legislation: | Customs Act 1902 (Cth), s 233B(1)(c) and (d) |
Case References: | Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 Collard v R, unreported; CCA SCt of WA; Library No 970425; 13 August 1997 Cox v Journeaux (No 2) (1935) 52 CLR 713 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Doney v R (1990) 171 CLR 207 Garrett v The Queen (1977) 139 CLR 437 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Huck v R (1988) WAR 231 Jago v District Court of New South Wales (1989) 168 CLR 23 Kemp v The King (1951) 83 CLR 341 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Mraz v The Queen (No 2) (1956) 96 CLR 62 Pearce v The Queen (1998) 194 CLR 610 Plomp v The Queen (1963) 110 CLR 234 R v McCaul and Palmer [1983] 2 VR 419 R v Smith [1995] 1 VR 10 R v Storey (1978) 140 CLR 364 Rogers v The Queen (1994) 181 CLR 251 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 Walton v Gardiner (1993) 177 CLR 378 Williams v R [1982] WAR 277 R v Quinn (1952) 53 SR (NSW) 21 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Crown
AND
KOK CHENG TAN
Accused
Catchwords:
Criminal law - Acquittal on charge of being knowingly concerned in importation of narcotics - No verdict on alternative charge of possession of narcotics - Whether retrial on possession charge involves impermissible double jeopardy - Whether possible to give a direction which gives full benefit of acquittal - Whether retrial an abuse of process - Meaning of "foredoomed to fail" in criminal proceedings
Legislation:
Customs Act 1902 (Cth), s 233B(1)(c) and (d)
Result:
Application dismissed
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Category: B
Representation:
Counsel:
Crown : Mr D W L Renton
Accused : Mr R Richter QC & Mr L M Levy
Solicitors:
Crown : Commonwealth Director of Public Prosecutions
Accused : Laurie Levy
Case(s) referred to in judgment(s):
Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Collard v R, unreported; CCA SCt of WA; Library No 970425; 13 August 1997
Cox v Journeaux (No 2) (1935) 52 CLR 713
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Doney v R (1990) 171 CLR 207
Garrett v The Queen (1977) 139 CLR 437
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Huck v R (1988) WAR 231
Jago v District Court of New South Wales (1989) 168 CLR 23
Kemp v The King (1951) 83 CLR 341
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Mraz v The Queen (No 2) (1956) 96 CLR 62
Pearce v The Queen (1998) 194 CLR 610
Plomp v The Queen (1963) 110 CLR 234
R v McCaul and Palmer [1983] 2 VR 419
R v Smith [1995] 1 VR 10
R v Storey (1978) 140 CLR 364
Rogers v The Queen (1994) 181 CLR 251
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458
Walton v Gardiner (1993) 177 CLR 378
Williams v R [1982] WAR 277
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Case(s) also cited:
R v Quinn (1952) 53 SR (NSW) 21
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1 McLURE J: The accused applies for a permanent stay of the retrial of a charge of possession of ecstasy contrary to par 233B(1)(c) of the Customs Act (Cth) 1901. The accused was originally charged on indictment with the following offences:
(1) between 1 May 2000 and 25 May 2000 at Sydney in the State of New South Wales and at Perth and elsewhere in the State of Western Australia Kok Cheng Tan was knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of three, four Methylenedioxymethamphetamine also known as ecstasy, being not less than the commercial quantity applicable to that substance, contrary to par 233B(1)(d) of the said Act; and
(2) in the alternative that on 25 May 2000 at Perth in the said State, Kok Cheng Tan did, without reasonable excuse, have in his possession a prohibited import to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of three, four Methlyenedioxymethamphetamine also known as ecstasy, being not less than the commercial quantity applicable to that substance, contrary to par 233B(1)(c) of the said Act.
2 At the trial of the charges in October 2001, at which I presided, the jury acquitted the accused of the charge of being knowingly concerned in the importation of ecstasy. The jury was unable to reach a verdict on the possession charge and they were discharged.
3 The accused applied for a nolle prosequi in relation to the possession charge which application was unsuccessful. The respondent's intention is to proceed to a retrial of the possession charge. The accused says that such a course is inconsistent with the rationale for the rule against double jeopardy and would be an abuse of process.
4 Much of the factual background was not in dispute at the trial. The accused in company with a Mr Wong travelled from Sydney to Broome via Perth on 23 May 2000. They sat next to each other on the flights. Wong was the principal witness for the Crown. He had earlier pleaded guilty to being knowingly concerned in the importation of the ecstasy the subject of the charges against the accused.
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5 Wong and the accused stayed in the same room at the Moonlight Bay Apartments during a one-night stay in Broome. Wong was contacted by telephone by a person he thought was the drug importer (Nasri) shortly after their arrival in Broome on 23 May 2000. The caller asked Wong to meet him at Port Street. Following the telephone call Wong and the accused went to the Moonlight Bay Apartments booked in and then went to the Broome jetty. Wong went into a café near the jetty with the intention of meeting Nasri and collecting the ecstasy. The accused did not accompany Wong into the café but waited near the jetty. Wong met Nasri at the café and gave him a telephone SIM card. Nasri told Wong he would bring the ecstasy to Wong at the hotel. The ecstasy was delivered to Wong at the entrance to the Moonlight Bay Apartments in the evening of 23 May 2000. Wong and the accused left Broome in the early morning of 24 May 2000 on a Greyhound bus to Perth. Both Wong and the accused were each carrying luggage which was checked in by each of them.
6 Australian Federal Police ("AFP") surveillance of Wong and the accused from the time of the arrival of the Greyhound bus in Perth showed that the accused had possession of a black and grey Adidas bag at various times between the bus station in Belmont and on arrival at the Ibis Hotel in Perth. A Mr Ivan Lee met Wong and the accused at the Ibis Hotel and accompanied them to Room 311 which had been pre-booked by Lee. AFP officers entered and searched Room 311 from about 8.00 pm on 25 May 2000. A search of the black and grey Adidas bag which had been carried by the accused revealed plastic bags which contained cardboard biscuit packages. Inside the cardboard packages was 6.8 kgs of ecstasy. There was also a quantity of ecstasy in Wong's possession.
7 The grounds relied on by the accused in support of the claim for a permanent stay for abuse of process are that:
(a) the only issue expressly joined by the parties at the first trial was whether the applicant knew that what he collected and carried from Broome to Perth was narcotics or likely to be narcotics. Further it was said that, assuming knowledge of narcotics was proven, the only available (and the irresistible) inference from the facts was that the applicant knew the narcotics were being or had been imported;
(b) it was not practicable in the circumstances to give a direction to the jury at the retrial of the possession charge which ensured that the applicant received the full benefit
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- of his acquittal on the charge of being knowingly concerned in the importation;
- (c) the retrial on the possession charge was foredoomed to fail because the Crown case was, with or without a direction giving the full benefit of the acquittal on the other charge, incapable of establishing that the applicant knew that he was in physical custody or control of narcotics or what was likely to be narcotics.
8 The Crown's position was that an analysis of the verdict and non-verdict demonstrated as a matter of logic that the jury must not have been satisfied that the applicant had knowledge of the importation and the question of knowledge of the narcotics remained a live issue which had not been resolved by the jury.
The Elements of the Charges and the Course of the Trial
9 At the commencement of the trial the accused made a number of formal admissions. They were:
(1) that on or about 23 May 2000 at Broome, a person called Nasri imported prohibited imports into Australia to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of ecstasy;
(2) that the quantity of the ecstasy imported by Nasri relevant to the case was 9.624 kgs gross and 4.808 kgs net consisting of 40,424 tablets;
(3) the narcotic substances were analysed by the Australian Government Analytical Laboratory and were found to contain the quantities referred to in par 2;
(4) the accused admitted the correctness of the analysis and that the narcotic substances that were in fact analysed were in fact the narcotic substances imported by Nasri.
10 Thus, on the knowingly concerned charge the Crown had to prove that the accused knowingly assisted in the furtherance of an importation knowing that the importation consisted of or was likely to consist of narcotic goods.
11 The final aspect of the charges in the indictment relates to the commercial quantity applicable to ecstasy. That is a circumstance of aggravation which bears only on penalty.
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12 The only element of the possession charge in issue on the evidence at trial was whether the accused was in possession of the ecstasy.
13 Whether by accident or design, the Crown and the accused at the trial did not expressly refer to the need for, or the evidence specifically relating to, the accused's knowledge of the importation which he was charged with furthering. Both parties appeared to be content to rest on the admitted fact that the drugs were imported.
14 However, on a number of occasions in my summing up I referred to the need for the Crown to prove that the accused had knowledge of the importation of what he knew to be narcotics or likely to be narcotics. I also directed the jury that the evidence relied on by the Crown to prove that the accused knew that the goods were narcotics or likely to be narcotics was the same for both charges and that if they were not satisfied the accused knew that the goods were narcotics or likely to be narcotics, they could not convict on either charge.
Legal Principles - Double Jeopardy, Autrefois Acquit, Res Judicata, IssueEstoppel and Abuse of Process
15 One question which arises is whether the respondent's acquittal on the charge of having been knowingly concerned in the importation of narcotics should result in the possession charge being permanently stayed.
16 The issues that arise in this case are similar to those that arose in Rv Storey (1978) 140 CLR 364. The High Court in that case considered whether there is any room in criminal proceedings for issueestoppel of the kind that has developed in civil proceedings. That question has now been authoritatively decided in the negative in Rogers v The Queen (1994) 181 CLR 251. However, Storey and the later decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 were concerned with the broad issues of double jeopardy, autrefois acquit, res judicata and other related rules of significance in the resolution of the stay application in this case.
17 Some of these concepts are discussed in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (supra). They said (at 614):
"The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is referred to the pleas in bar autrefois acquit and autrefois convict; sometimes it is used to
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- encompass what is said to be a wider principle that no one should be 'punished again for the same matter'. Further, 'double jeopardy' is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.
If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:
'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as an enhancing the possibility of even though innocent he may be found guilty'."
19 In Storey, two respondents were originally tried on an indictment charging, inter alia, abduction and a number of counts of rape of a young woman. The jury acquitted the respondents of abduction and disagreed on all counts of rape. The respondents were tried again on an indictment containing the same counts of rape and were convicted on each count. The defence at the second trial was that of consent. The young woman gave evidence at the first trial that she was taken by force and threats of force from a railway station and, after some time, taken to a pavilion where the rapes occurred. She gave similar evidence at the second trial. Counsel for the accused had objected at the second trial to the admission of the evidence of her having been taken away by force or threats of force from the railway station.
20 The trial Judge at the second trial directed the jury in relation to the acquittals on the abduction charges. He informed the jury of all the elements of the abduction charge and what the acquittal meant in relation to proof or otherwise of each constituent element. He also said that the whole of the events were to be considered in determining whether or not the young woman had consented to intercourse but that it was no part of
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- their task to consider whether or not the respondents were guilty of forcible abduction.
21 The Supreme Court of Victoria set aside the convictions and ordered a new trial. The majority held that the evidence of the taking by force or threats of force was inadmissible as there was an issueestoppel in the accused's favour arising from the acquittal on abduction. Notwithstanding the abduction offence involved (at least) two elements being the taking by force or threats of force with intent to know carnally, the majority held that the only live issue in the abduction trial was whether the young woman was taken by force from the station and that the acquittal consequently created an estoppel in the accused's favour on that issue. Gillard J, who dissented, held that there was no issueestoppel because it was not possible to isolate the precise issue arising on the abduction charge on which the jury decided in favour of the respondents.
22 The principle of issueestoppel and the distinction between that principle and res judicata was discussed by Dixon J in Blair & Perpetual Trustee Co Ltd v Curran(Adams' Will) (1939) 62 CLR 464. He said (at p 532):
"The distinction between res judicata and issue-estoppel is that in the in the first the very right or causes of action claimed or put in suit has in the former proceedings passed into judgment, so that it has merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
23 There was no suggestion that the verdicts on the abduction and rape were inconsistent verdicts. The respondents could have been acquitted on abduction and still be found guilty of rape: per Mason J (at p 397-398).
24 As a result of the diversity of views expressed by the Court in Storey it is appropriate to deal with their reasons in some detail. Barwick CJ held that the civil doctrine of issueestoppel has no application in the criminal law. He was of the view that even if it was possible as a result of formal admissions to narrow the area of the jury's determination to a single issue of fact the verdict of acquittal is not necessarily explicable only on the footing that the jury had made a positive finding of fact. They may not have been satisfied to the requisite degree. According to Barwick CJ, all that can be said of a verdict of acquittal is that the accused was acquitted.
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- This conclusion is criticised by Friedland in his book "Double Jeopardy" (1969) p 129. According to Friedland, fairness demands that an acquittal means a finding of innocence not just a finding of reasonable doubt. Friedland's view is consistent with the position of the majority in Storey.
25 Barwick CJ said (at p 372):
"The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it are admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal."
26 Barwick CJ regarded this principle as an application of the rule against double jeopardy. The first step is to consider whether the evidence is capable of being confined. If that is not possible then a direction must be given that ensures the respondent obtains the full benefit of the acquittal. In this case he held that the evidence could not be confined and the direction was adequate.
27 Gibbs J also rejected the applicability of the civil doctrine of issueestoppel. After reviewing the relevant authorities he said (at p 387):
"From this survey of the authorities it will have been seen that there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Whether
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- this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter. Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted."
28 Although Gibbs J's position on the effect of an acquittal differs from that of Barwick CJ, he also held that the relevant evidence was admissible and there had been no misdirection.
29 Mason J also concluded that the doctrine of issueestoppel as it has developed in civil proceedings is not applicable to criminal proceedings although the doctrine of res judicata did apply. He decided that the evidence tending to show that the accused were guilty of an offence of which they had been acquitted was properly admitted but that it had not been made clear to the jury that they were bound to accept the verdict of acquittal as the only possible view of the evidence relating to the abduction charges and that it was not open to them to accept a view of the facts inconsistent with that acquittal or to use such a view for any purpose.
30 Jacobs J disavowed the use of the label "issueestoppel". He accepted that there is a rule in the criminal law which goes beyond the plea of autrefois acquit and which makes an earlier acquittal in favour of the defendant conclusive in a later trial that he was not guilty of the offence upon which he had been acquitted. He said this rule is based on the underlying notion that a person should not be placed in double jeopardy. He identified the occasions which go beyond autrefois acquit but which are covered by the double jeopardy principle to include:
(i) when the commission of the second offence can be shown to have been an essential element of the first offence (as in Mraz v The Queen (No 2) (1956) 96 CLR 62);
(ii) when the commission of the first offence can be shown to be an essential element of the second offence charged (whether or not the plea of autrefois acquit be open);
(iii) where there is only one element of fact in the offence of which the defendant has been acquitted (as in Kemp v The King (1951) 83 CLR 341).
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31 Jacobs J then went on to consider the position when an offence of which a defendant was acquitted at an earlier trial contains a number of elements which each require distinct proof. He said that the fact that only one issue or element of the offence was submitted to the jury at the first trial must be clearly established and it was not so established in that case. In his view it could not be said that both elements of the offence of abduction were not left to the jury.
32 However, he also stated that it was not open to a jury in a later trial to conclude that all the elements of an offence for which the defendant was tried and acquitted in an earlier trial are proven in the later trial because to do so is to find that the defendant committed the offence. In this case evidence was adduced on both elements of the abduction offence and there was no sufficient warning to the jury that it was not open to them to find both elements of the abduction offence proven. Further, he concluded that the particular nature of the offence of abduction in relation to a subsequent rape made it practically impossible for the respondents to have the benefit of their acquittal on the charge of abduction if evidence of a taking away by force from the railway station was admitted. That evidence carried with it the implication of carnal intent at the time of her removal. For those reasons Jacobs J concluded that the evidence was inadmissible and upheld the conclusion of the majority in the Supreme Court.
33 Murphy J held that there was a limited place for issueestoppel in the criminal law but that the doctrine had no application on the facts of the case. He pointed out that one of the traps in issueestoppel was to treat a jury as a unit rather than a tribunal whose members are entitled to reach their verdict by different paths. He made the point that no issue was determined in the accused's favour except the general issue of abduction. He said (at p 412):
"It follows from the acquittal of abduction that all the jury were not satisfied that the Crown had made out all the matters which it had to prove or disprove; it may be inferred that each juror was not satisfied either of the force or of the intent; it does not follow that each was not satisfied of the force; and it does not follow that each was not satisfied of the intent. Therefore, it is not established that the verdict involved a determination in favour of the accused on either of those issues."
34 Murphy J concluded that the evidence was admissible on the question of consent but that the accused should be entitled to prove that
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- they had been acquitted and were innocent of the charge of abduction that is, of taking by force with intent to know carnally. However, the accused was not entitled to claim that the acquittal meant they did not take by force or they did not take with intent to carnally know. He was not satisfied that the trial Judge's direction occasioned any miscarriage of justice.
35 Aickin J (with whose reasons Stephen J agreed) also concluded that there was a limited role for issueestoppel but that it did not apply on the facts of the case. He was of the view that there was nothing in the circumstances to warrant a conclusion that the decision of the jury was based on the absence of any particular one or more of all of the elements. He also reached the conclusion that the need to give the respondents the full benefit of the acquittal did not require the exclusion of the evidence but that it had to be explained to the jury. He agreed with Mason J that the direction was inadequate.
36 Thus, the majority in Storey held that the conviction should not stand but not because of the issueestoppel doctrine. Stephen, Mason and Aickin JJ did so on the ground that the direction concerning the use of the relevant evidence relating to the offence of which they had been acquitted was inadequate. Jacobs J did so on the ground that the evidence was wrongly admitted.
37 As stated previously, it is now clearly the case that the doctrine of issueestoppel as it has developed in civil proceedings is not applicable to criminal proceedings: Rogers v The Queen (1994) 181 CLR 251. Rogers concerned the admissibility of confessions ruled involuntary and inadmissible at an earlier trial on an indictment containing four counts of armed robbery. The majority (Mason CJ, Deane and Gaudron JJ) held that the tender of the records of interview at a subsequent trial for different offences would be a direct challenge to the earlier determination and in the circumstances constituted an abuse of process.
38 Deane and Gaudron JJ in Rogers discussed the basis of the doctrine of autrefois acquit. They said (at p 276-277):
"… autrefois acquit operates within its confines to prevent the prosecution from asserting the contrary of what has previously been judicially determined in favour of an accused. In this respect, autrefois acquit is analogous to issue estoppel in civil proceedings, although it clearly operates within a more limited area. In large part, that is the result of the different character of
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- civil and criminal proceedings and the difficulty involved in identifying precisely what, besides guilt or innocence, has been determined by the jury's verdict.
As already indicated, the conclusive aspect of autrefois acquit or that aspect of it which maintains the incontrovertible character of judicial decisions derives from the principal embodied in the maxim res judicata pro veritate accipitur. Its preclusive aspect, or that aspect which prevents the re-litigation of matters already determined in favour of the accused, derives from the same principles as issue estoppel, as is the principle embodied in the maxim nemo debet bis vexari pro eadem causawhich, in its application to criminal proceedings, has become known as the rule against double jeopardy."
39 The maxims referred to by Deane and Gaudron JJ also underpin the rule that the prosecution cannot go behind an acquittal, the requirement that inter-related verdicts be logically consistent and the decision in Mraz v The Queen (No 2) (supra).
40 On its facts Rogers was not concerned with the plea of autrefois acquit, the unassailable nature of an acquittal or the need to avoid inconsistent verdicts and did not call for any consideration of the rule against double jeopardy: per Deane and Gaudron JJ at p 278. However, the majority concluded that those rules or principles did not exhaust the operation of the maxims. The gap is filled by the doctrine of abuse of process: per Mason CJ at 255 per Deane and Gaudron JJ at 280.
41 The nature and scope of the doctrine of abuse of process is discussed in Walton v Gardiner (1993) 177 CLR 378. The High Court said (at p 392):
"The inherent jurisdiction of superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
42 The Court then referred to particular categories of cases which come within the doctrine including:
(a) when proceedings can be clearly seen to be foredoomed to fail (referring to General Steel Industries Inc v
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- Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30 which concerns summary disposal of unmeritorious civil proceedings);
- (b) situations where notwithstanding the circumstances do not give rise to an estoppel, the continuance of the proceedings would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
43 It is into the latter category that the decision in Rogers falls. The categories are not fixed or closed (Rogers (supra) at 255 per Mason CJ; Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (supra)). Further, the jurisdiction to stay for an abuse of process is only exercised in exceptional circumstances: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 92 per Dixon J; Jago (supra) at 76 per Gaudron J; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720. The question whether criminal proceedings should be stayed is determined by a weighing process involving a subjective balancing of a variety of factors including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: Jago (supra) at 30-34, 59-61, 72 and 76-78; Walton v Gardiner(supra)at 395-396.
44 The "foredoomed to fail" ground needs elaboration. The circumstances in which a criminal trial can be prematurely terminated include where there is no case to answer and, possibly, where a Prasad direction or invitation is appropriate. There remains the question whether the Prasad alternatives are consistent with Doney v R (1990) 171 CLR 207. The High Court in Doney held that evidence capable of supporting a guilty verdict, even if tenuous or inherently weak or vague, must be left to the jury.
45 In any event these options only arise after the Crown has adduced its evidence at trial. In this case the accused seeks a stay before the trial has begun. That is an exceptional, albeit not unique application. A similar application was considered by the Victorian Court of Appeal in R v Smith [1995] 1 VR 10. In that case eight police officers were charged with the murder of a suspect who was shot in the course of an attempt to arrest him. Prior to a jury being empanelled, the accused applied for a permanent stay of proceedings. The applicants' contention was that the evidence was not sufficient to enable the jury to be satisfied beyond
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- reasonable doubt of the elements of the charges. It was not a case of no evidence on an essential element.
46 The Judge had before him a very lengthy prosecution case statement, a large number of witness statements and the depositions taken at an inquest. The Judge concluded that the evidence would not be sufficient to make out a case to answer against five of the applicants and granted a permanent stay of proceedings against them. The Crown's appeal against the stay was allowed by the Court of Appeal.
47 The Appeal Court considered the "foredoomed to fail" category of abuse of process and noted the novelty of the issue being determined prior to trial. It held that it is not an abuse of process merely because a Judge concludes that the better view is that a case to answer has not been, or will not be, made out. At the very least, if it was fairly arguable that a case to answer had been, or would be made out, the criminal proceedings would not be clearly foredoomed to fail: per Brooking J at 15 and per Eames J at 41.
48 However, it is to be noted that the test was formulated on the assumption that it was possible to determine what the proposed evidence to be elicited would be. It is to be expected that the evidence on the papers would be considered at its strongest from the point of view of the prosecution, as in a no case submission: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482.
49 Byrne J put the test slightly differently. He said (at p 28-29):
"In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution. I cannot readily imagine that such a vice could arise out of some insufficiency of evidence relied on by the Crown unless a matter such as an incurable absence of admissible evidence on some essential element. … In a case such as the present, where the prosecution depends upon inferences which the jury will be asked to draw from constituent facts, the test which I posit would, as a minimum, prevent the judge from ordering a stay on the ground that the given inference was not open so long as there was evidence which has been treated as admitted as tending to support that inference."
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50 The facts of this case are of course different from those considered by the Court of Appeal in R v Smith. Here evidence has been adduced and tested at a trial and the jury failed to reach a verdict. The first question is whether the proper course is to rely solely on the evidence at the first trial in determining whether the charge is foredoomed to fail or whether the possibility of supplementary evidence is to be countenanced. On that subject, I should point out that Wong was not directly questioned at the trial on a number of relevant matters. I have been unable to locate any authority on point. However, I take as my guide the law relating to the exercise of the court's discretion to order a retrial. In that situation the question is whether the evidence was sufficiently cogent to justify a conviction. If it was not, it would be wrong to order a retrial to give the prosecution an opportunity to supplement a defective case: Huck v R (1988) WAR 231 at 235. On this basis I conclude that the merits submission ought to be answered by reference to the evidence given at the first trial. It follows that the lower threshold of "an arguable case to answer" ought not apply in this case. In my view, the foredoomed to fail submission should be tested by reference to whether the evidence gives rise to a case to answer or by applying the closely related test formulated by Menzies J in Plomp v The Queen (1963) 110 CLR 234 at 247. That test is whether on the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused knew he was carrying narcotics or goods likely to be narcotics. The only material difference is that the Plomp formulation makes no reference to treating the evidence at its highest: Morrison v Kiwi Elextrix Pty Ltd (1998) 19 WAR 482 at 490.
The Application of the Principles
51 The plea of autrefois acquit clearly does not apply in this case. Further, it cannot be said that the evidence at the rehearing of the possession charge will go behind the acquittal in the sense in which that rule was applied in cases such as Garrett v The Queen (1977) 139 CLR 437, Kemp v The King (supra) and Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458. In each of those cases the only relevance of the challenged evidence was to show that the accused was guilty of an offence of which he had been acquitted.
52 In this case, the issue of the accused's knowledge that the goods he was carrying were narcotics or likely to be narcotics is an element common to both the knowingly concerned and possession offences. Further, much, if not all, of Wong's evidence given at the first trial of events leading up to as well as following the collection of the ecstasy is
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- prima facie relevant to the possession charge. The limited evidence adduced at the first trial relating to knowledge of the importation of the narcotics also appears to be relevant to or inextricably mixed with the evidence relating to knowledge of the nature of the goods. I will assume, without deciding, that the evidence could not properly and fairly be confined in any way at the second trial on the possession charge. Accordingly, the accused would be entitled to a direction at the second trial to ensure he obtained the full benefit of the acquittal.
53 The first ground for the stay is a variant of issue estoppel by analogy. The starting point is the question of what, if any, inferences can be drawn from the acquittal on the knowingly concerned charge and the failure to reach a verdict on the possession charge. The Crown submits that the only available inference is that the jury were not satisfied that the accused had knowledge of the importation (resulting in the acquittal) but did not reach a verdict on the accused's knowledge of the nature of the goods (resulting in a hung jury on the possession charge).
54 I do not regard the Crown submission as an accurate or exhaustive statement of the available logical inferences from the jury's decision. The flaw in the submission arises because it approaches the jury as a unit. The quoted statement from Murphy J's reasons in Storey is apposite. Further, following lengthy deliberations by the jury and in the course of obtaining submissions from counsel on whether the jury should be discharged, I informed the parties in the absence of the jury of the contents of a note from the jury to the effect that they were at a deadlock of eleven to one and had exhausted all avenues of discussion and believed they could go no further. Accordingly, in this case the outcome of the jury's deliberations could mean that either one or alternatively eleven jury members were not satisfied that the accused had knowledge of the importation but were satisfied that he had knowledge of the narcotics. Thus, logic suggests that at least one member of the jury was satisfied to the requisite degree that the accused knew the goods were narcotics or likely to be narcotics. Even if issue estoppel in the very circumscribed form recognised by a number of the Judges in Storey applied in criminal law, it would not apply on the facts of this case.
55 There is no logical inconsistency on the face of the outcomes of the jury's deliberations. However, the accused seeks to go behind the verdict and non-verdict to challenge them. Although this is not a case involving inconsistent verdicts the accused's submission reflects a similar approach.
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56 The difficulties with interpreting verdicts of juries is said to lie behind the court's reluctance to conclude that a jury has given inconsistent verdicts in the same proceedings. According to Friedland ("Double Jeopardy" at p 141):
"Whereas most courts will act to prevent blatant inconsistency in successive trial, few are as concerned with as inconsistency in the same proceedings. This is simply a realistic recognition of the fact that juries, to use the words of a New Zealand Judge, do not act with complete harmony or complete logic, in arriving at their verdicts …
… And sometimes the jury arrives at verdicts through compromise."
57 The approach adopted in this jurisdiction to inconsistent verdicts is that the appellant has the burden of satisfying the Court that the two verdicts cannot stand together, meaning that no reasonable jury who have applied their minds properly to the facts in the case could have arrived at the conclusion: Collard v R, unreported; CCA SCt of WA; Library No 970425; 13 August 1997.
58 It was conceded by senior counsel for the accused that it was a pre-condition to the success of the application, insofar as it rested on double jeopardy, that the jury's failure to reach a verdict on the possession charge be undermined. If that was achieved, the way then became clear, or clearer, for the application of the maxims which underpin the abuse of process doctrine in this area of the law.
59 The submission has two limbs. Firstly, it is said, correctly, that the parties did not expressly join issue concerning the only significant material difference between the two charges, being knowledge of the importation of the goods. However, that matter was referred to in the summing up.
60 Secondly, it is said in effect, that no reasonable jury (or jury member) who applied their mind properly to the facts of the case could be satisfied that the accused had knowledge of the narcotics but not be satisfied of the accused's knowledge of the importation. Or to put it another way, it would be perverse to reject knowledge of importation without rejecting knowledge of narcotics.
61 The evidence relied upon to support the second limb of the submission was Wong and the accused's destination (Broome), its
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- proximity to Indonesia "from where drugs come from as a matter of general knowledge from time to time" and the trip to the Broome jetty where Wong intended to meet Nasri. However, there was no evidence at the trial concerning the range of potential sources of the narcotics (domestic or overseas) or Indonesia's reputation in this regard. There was evidence from Wong that he was aware the goods were being imported from Indonesia but no direct evidence linking Wong's knowledge to the accused.
62 Assuming a finding that the accused knew the goods were or were likely to be narcotics, I am not satisfied that the only available inference from the evidence was that they were being imported. Or, using the inconsistent verdict test, I am not satisfied that, on the stated assumption, no reasonable jury who applied their mind properly to the facts could have arrived at the conclusion that they were not satisfied of the accused's knowledge of the importation.
63 I turn now to the accused's submission concerning the terms and effect of any direction to the jury on the second trial for possession. The accused says that the jury at the second trial would have to be told in substance that the accused is not guilty of knowingly assisting the furtherance of an importation knowing that the importation consisted or was likely to consist of narcotic goods. I have reservations concerning the appropriateness of a direction in these terms to the extent it suggests the acquittal is a finding of not guilty on each element of the offence. Such a direction would be erroneous and create great logical difficulties for the jury. It is not correct to say (as senior counsel for the accused submitted) that Storey is authority for the proposition that the jury should have been directed that the young woman had not been taken away by force.
64 The Crown says the accused would get the full benefit of the acquittal if the jury at the second trial was told in effect that the accused had nothing to do with the importation. I disagree. The Crown's submission is derived from its inaccurate statement of the effect of the verdict and non-verdict. Further, it falls short of what is required by the majority in Storey, being Stephen, Mason and Aickin JJ.
65 This case is different in at least one respect from Storey. Unlike Storey it concerns charges in the alternative. The relevant conduct for the possession charge, being physical custody of the ecstasy on 25 May 2000 (which covered the second day of the two day trip from Broome to Perth) was also relied on as part of the conduct to establish the knowingly concerned charge. The evidence relating to the knowingly concerned
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- charge and the possession charge overlap in fact and in time. Further, as previously stated my assumption is that the evidence led at the first trial relating to knowledge of importation is relevant to or inextricably linked with knowledge of the nature of the goods. However, it is not the case that, based on the evidence at the first trial, proof of knowledge of the nature of the goods compels an inference that they must have been imported.
66 However, in my view, there is no material difference between this case and Storey. The majority view of Stephen, Mason and Aickin JJ in Storey on admissibility and the nature of the direction can and, in my view, does apply in this case. Such an outcome is consistent with principle. It is not the case that the double jeopardy and other principles underpinned by the maxims referred to in Rogers are infringed by a retrial of an alternative charge as a result of the failure of a jury to reach a unanimous verdict on that charge.
67 The final ground of the application is that the second trial on the possession charge is "foredoomed to fail". This submission is made solely by reference to the evidence at the first trial and is, in all material respects a repetition of the no case submission made at trial (with the addition of an authority, R v McCaul and Palmer [1983] 2 VR 419).
68 The accused also relies on the verdict and non-verdict which, as discussed, will give rise to the need for a direction to the jury to ensure the accused has the full benefit of the acquittal. This course will probably advantage the accused: Storey (supra) at p 397 per Mason J.
69 I note that I am not being asked to review my decision to reject the no case submission at trial. This application relates to a prospective or anticipatory merits analysis in relation to the proposed retrial, albeit solely by reference to the evidence at the first trial. In any event no party raised any jurisdictional issue.
70 I will deal with the merits submission on the basis that it is appropriate to determine that issue solely by reference to the evidence at the first trial.
71 Wong's evidence not already canvassed in these reasons is summarised as follows. He is a Singaporean national who arrived in Australia in April or May 1999 to commence an information technology course. Wong and the accused knew each other socially in Singapore and subsequently in Sydney. Wong was a gambler and he met an Indonesian man called Jokky at a Sydney casino. Wong became indebted to Jokky.
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- Jokky asked Wong to meet him to discuss the repayment of moneys owing by Wong. They met in a little shop in Chinatown. A Vietnamese man was also at the meeting. Jokky said that Wong could do a job for him by going to Western Australia and picking up something for him and bringing it back to Sydney. Jokky indicated that that would solve the problem regarding the money owed by Wong to Jokky. Wong was scared and asked for time to think about it.
72 Jokky called Wong a few days later and told him to meet him at the same place. Wong was scared and asked the accused to go with him. Wong spoke to the accused about Jokky and told the accused that he owed Jokky money which he could not repay and that Jokky had asked him to do him a favour and collect something from Western Australia. The accused asked whether Wong knew what it was. Wong said "Something illegal. Probably that will be some money." (T242). Wong told the accused "As long as it's not heroin or drugs, maybe I'll do the job for Jokky". (T243).
73 Wong's evidence concerning the first meeting between Jokky, the accused and himself is as follows (T243-246):
"Did Tan go with you inside the noodle shop?---Yes.
Tell us what happened from there?---I apologised to Jokky again when I first met him about the delay of the payment of what I owed him. He asked me have I made up my mind and he said it was nothing serious. If he had the time he would go up to pick up the gear himself. At that time I asked him, 'I'll do the job as long as it's not heroin or drugs.'
What did he respond, if anything? What did he answer?---He acknowledge and – at that time he acknowledge and I start to ask about details, about how to pick up this stuff and who am I to meet, how I'm going to go there, all the small details about this meeting.
At this time, did he tell you what it was you were going to pick up?---Not at this time.
At a later time?---He start to inquire more about Tan and - - -
When you say inquire more about Tan, what do you mean by that?---What Tan was doing in Sydney, was he taking a course just like me or – more about Tan.
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- So who was there while this discussion was taking place?---Jokky and myself. Tan was there. On a few occasion I remember Tan just go to the toilet and to the bar – what you call it? To the coffee place to get a few drinks. A few occasion he leave the table.
You said earlier on when I asked you if Jokky told you what you were to collect, you said it wasn't at that stage. I think you said he first discussed – spoke to Tan. You said later he told you something. What did he tell you later; about what you were to collect, I'm asking?---Yeah. I remember after a while he did told me actually the think was ecstasy and that was just a very small amount of 2500 tablets.
Was this at the same meeting?---Again?
Was this at the same meeting that you - - -?---Yeah, same meeting, and of the meeting before we leave he did told me what actually I'm going to collect.
Was there any discussion concerning Tan having anything to do with this job?---He did ask Tan whether he want to go out for holiday with me; that is, to WA. At this stage we did not know that we are going to Broome. All we are told is just WA. Is Tan willing to – and he's willing to pay a few thousand for our expenses and Tan agreed.
What exactly did Tan agree to do as far as you heard? What did Tan agree to do?---He thought that he was just – I going to pick up some money or something. I'm not sure what he think at that time. Was he willing to accompany me to pick up the gears back and have a holiday there as well?
Was it discussed how long the holiday would be?---No.
Did anybody ask – sorry. Did Tan ask how long the holiday would be?---We try to ask. He didn't tell us much about the trip. I did ask him at that time, 'Who am I going to meet?' I remember at that stage he took out his mobile phone and he did make a call. From the way he dialled his mobile I realised that it was overseas call because involve a lot of number that he dial and - - -
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- Did you – sorry, carry on?---I heard about a conversation more or less. He was speaking in Indonesian to the other party of the phone, 'Was it a brother, eldest or younger, coming down?' and I did heard him calling the other party Ayong and he say he's Asiyong and the older or the younger coming, things like that.
During the discussion did Jokky talk to you or did you talk to Jokky about the money that you owed him?---Yeah.
What was said about the money you owed him?---He told me if I did the job and do the job, that's to go and pick up the gear, the money I owe him will be scratched.
What language were you talking in?---All this while when I meet him I used to speak to him in English, bit of Indonesian and Hokkien. Hokkien is the dialect, one of the dialect, of Chinese.
You have said earlier that Jokky spoke to Tan about a couple of things?---Yeah.
What language was that spoken in?---In Hokkien.
In Hokkien. Was there any discussion as to which of the two of you could speak English, the two of you being Tan and yourself?---I did remember he say during the trip – I know better English and I can make the arrangement as to check in to the hotel, to buy ticket for flight and for bus transport.
That you would be doing that?---Yes.
Was there any discussion as to any details as to what Tan might do?---No.
Was there anything else discussed about the job in WA at that particular meeting that you can recall?---No.
What happened when the meeting finished?---He did give me a SIM card and ask me to kept it and I'll need – maybe the next meeting I'll need – that will be – it is during the next time – I mean during the trip when I go up to WA I'll need this SIM card. That 's what I was being told.
So he gave that SIM card to you at that time?---Yeah.
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- Did anything else happen at that meeting?---No.
So at the end of the meeting where did you go from there?---Me and Tan parted. I can't remember where I go."
74 A few days later Jokky again contacted Wong. Wong and the accused went to meet Jokky again. Jokky said they would be going to Broome to pick up the "stuff". Jokky told Wong about meeting up with Nasri and details regarding the trip. Jokky did not refer at this second meeting to what was being picked up (ecstasy). Jokky got Wong's and the accused's details from them and made flight bookings. Wong left Jokky and the accused to go to the travel agent to pay for tickets with money given to him by Jokky. When Wong returned to the shop where Jokky and the accused were, there was a stack of money on the table. Wong thought that the money was to pay for their expenses. Jokky said that it was better that the accused look after the money because of Wong's gambling problem. The accused picked up the money when he and Wong left the meeting. Wong stayed with the accused at his flat the night before their departure for Broome. The accused's flatmate, Ivan Lee was present when Wong arrived.
75 After Wong and the accused arrived in Broome and Wong had received the call concerning the meeting at Port Street, Wong told Tan about the call. It was Wong's idea that he meet Nasri alone in the café. After the meeting in the café, Wong told the accused that Nasri would bring the thing to Wong after calling him on the phone. Wong and the accused went to a restaurant. Whilst at the restaurant Nasri called Wong again. Nasri said he would be at the hotel soon. Wong and the accused left the restaurant and went back to the hotel. On the way back to the hotel Wong told the accused that he did not have to be there. The accused went upstairs. The accused said to Wong that he could act as a lookout.
76 Nasri gave Wong two black plastic bags which Wong took to the room at the Moonlight Bay Apartments. The accused was present. Wong put the plastic bags on the table and said "Here's the stuff". Wong tried to pack the plastic bags in his bag but could only fit one in. Wong was not sure if the accused was present in the room at this time. Wong then told the accused that his bag was full and asked if the accused could put the other plastic bag in his bag. Wong then said that he was going to reception to borrow some video tapes and left the room. When Wong returned to the room 15 to 20 minutes later, the accused was in the shower. The plastic bag was not on the table where it had been when
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- Wong left the room. Wong assumed that the accused had packed it in his bag.
77 Wong was cross-examined. He was asked about whether he told the accused that the biscuit tins contained money. The evidence was in the following terms:
"Mr Wong, I want to put to you what I suggest was a conversation that was had in the Moonlight Bay room after the biscuit tins were brought back by you. What I suggest is that Mr Tan saw the biscuit tins and he asked you what was in them?---I can't remember the conversation.
I suggest that he asked you what was in them and I suggest to you that you told him that it was money?---I can't remember this.
Is that possible that that might have been said?---Yes.
You in fact had told him earlier I think, according to your evidence, that you were going to pick up money?---That very first time when I told Tan about what I going to pick up for Jokky."
78 Wong also gave evidence that he had told the accused that he Wong collected money on occasions for people. Then the following exchange took place (T270):
"Did you tell Mr Tan that you collected money on occasions for people?---Yes.
The time that you first brought the biscuit tins into the Moonlight Bay room until the time the police apprehended you you never had any other discussions with Mr Tan, did you, about what was in the tins?---No. At that time I was pretty nervous and all I worry is to get back to Sydney as soon as possible and hand over the thing to them and my job is done."
79 The accused paid most of the trip expenses and was carrying $7,500 in cash when arrested. Further, the accused took the initiative and contacted his flatmate Ivan Lee on their arrival in Perth on the Greyhound bus. Lee met Wong and the accused at the Ibis Hotel.
80 AFP agent Bruce Comber gave expert evidence concerning fingerprints on the items collected from Nasri. Agent Comber identified a
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- fingerprint on the outside of a black plastic bag that contained a tin as being that of Wong's. Of all of the prints found, none were identified as belonging to the accused. One print was identified as that of Nasri. Six prints were similar to those of Wong but were not able to be positively identified as his.
81 That is a summary of the main evidence on the question of the accused's knowledge. As stated earlier, the focus of the Crown and the defence at trial was on whether the Crown had proved that the accused knew that the "stuff" he was collecting and carrying was narcotics or likely to be narcotics. The case of R v McCaul and Palmer takes the matter no further. That is a case where the only rational inference from the circumstantial evidence was that a crime had been committed but it did not permit an inference of the commission of the crime actually charged (conspiracy to rob).
82 The accused placed particular emphasis on Wong's evidence of what he said to the accused before their first meeting with Jokky to the effect that Jokky wanted him to collect something, illegal, "probably money" but that he would not collect drugs, the latter part of which statement Wong repeated at the start of that first meeting. However, the exchanges took place before Wong became aware at that meeting that he was to collect ecstasy. The accused also relies on Wong's evidence concerning what Wong thought the accused intended or agreed to do at that first meeting as well as Wong's answers in cross-examination as to what the accused asked Wong and what he was told concerning the contents of the packages collected from Nasri. That evidence is equivocal and arguably contradictory.
83 Leaving to one side the strength or otherwise of the evidence (in the Doney sense) in my view it is capable of sustaining a verdict of guilty on the possession charge. In particular, the evidence is capable of establishing that the accused had knowledge that the goods he was carrying were narcotics or likely to be narcotics. It was not suggested the evidence was incapable of supporting an inference of knowing involvement in an offence. That further narrows the already very restricted range of goods identified in the evidence. The requirement for a Storey direction does not in this case affect the capacity of the evidence to sustain a guilty verdict but rather goes to its strength. Accordingly, the possession charge is not foredoomed to fail.
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84 In the circumstances, it is not appropriate to refer any further to the particular evidence which leads me to the conclusion: R v Smith at p 18; Williams v R [1982] WAR 277.
85 For these reasons I propose to dismiss the stay application.
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