R v Tang - [2000] NSWCCA 219

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v TANG [2000] NSWCCA 219

FILE NUMBER(S):
60624/98

HEARING DATE(S): 11 May 2000

JUDGMENT DATE: 13/06/2000

PARTIES:
Regina

Joshua Li Chao Tang

JUDGMENT OF: Grove J Ireland J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0198

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL:
Mr R P Greenhill SC and E W Kelly (Applicant)
Mr L M B Lamprati (Crown)

SOLICITORS:
Paul Kenny & Associates (Applicant)
S E O'Connor (Crown)

CATCHWORDS:
Possession of heroin found in premises
whether premises jointly occupied
whether appellant had possession
effect of failure to mention other occupant on arrest
accused alleged he did mention, denied by police
whether jury can take omission into account
R v Petty & Maiden (1991) 173 CLR 95 distinguished

LEGISLATION CITED:
Drug Misuse and Trafficking Act, 1985
Evidence Act 1995

DECISION:
Appeal dismissed, by majority

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60624/98

GROVE J
IRELAND J
ADAMS J
Tuesday 13 June 2000

REGINA v JOSHUA LI CHAO TANG

JUDGMENT

GROVE J :I have had the advantage of reading the judgments of Ireland J and Adams J in draft form.
I agree with Ireland J that grounds 1 and 2 should not be sustained. Ground 3 asserted that the conviction, in the circumstances argued in support of grounds 1 and 2, was a miscarriage of justice. As Adams J has commented, this was a very strong Crown case. The correctness of his comment can readily be perceived by reference to the evidence that the lessor of the flat had cleaned the wardrobe before the appellant used it in the garage and seen the drawers removed when it was being moved from there into the flat. Five packages of narcotics were found behind the bottom drawer in the wardrobe secured by packing tape upon which the appellant’s fingerprints were detected.
Ground 3 should be rejected.
In my opinion the added grounds now numbered 4 and 5 should also be rejected. Adams J has reached a different conclusion and I gratefully adopt his collation of the relevant material which will enable me to state my reasons relatively briefly.
Ground 4
It cannot be doubted that the right of silence is fundamental to the common law system of justice: Petty v The Queen (1991) 173 CLR 95. The principle has had recent emphasis: RPS v The Queen [2000] 74 ALJR 449. The present case did not, in my view, involve a claim by the appellant to exercise his right of silence, to the contrary he was positively asserting that he had made a statement in his own interest on the occasion in question.
The issue at trial should be examined in its full context. Counsel for the defence put to each of three Crown witnesses that the appellant had said during the police search that “another guy” was living at the flat and, in various forms which it is not necessary to relate in detail, all witnesses denied the proposition. The appellant then gave evidence in accordance with what had been put by his counsel and that he had expressly referred to a David Wong as resident in the flat. He was cross examined to suggest that this evidence was untruthful. Extract of some of the cross examination has been recited by Adams J. It was legitimate cross examination for the Crown Prosecutor to suggest that the appellant was prevaricating. It was necessary to put to the appellant that he had not spoken as he asserted he had to police, just as it would have been necessary to put the content of anything he was alleged to have said if the dispute had centred upon two different versions of actual conversation.
The reference by the trial judge to the appellant not nominating that another person was resident at the flat would clearly have been understood by the jury to refer to the factual dispute on the issue which had been raised by and testified to by the appellant.
The jury would not have understood that they were being invited to draw an inference of guilt from the exercise of a right of silence by the appellant, indeed his Honour had given the jury explicit directions about the drawing of adverse inferences. He had told them:
“Well members of the jury the accused as you are aware declined to answer some questions put to him by a police officer at the time of his arrest. As I said to you earlier on in the trial all people in this country have the right, except under circumstances which are not appropriate to this case dealing with motor accidents to refuse to answer questions put to them by police officers investigating crime. And that is the substance of the meaning of the caution administered by a police officer, and you heard it on the tape, on the video tape, and you heard it given verbally by the police officers that were giving evidence to you. If any inference adverse to the accused could be drawn from his exercising his right to decline to answer, then that right itself would very soon disappear. It is a right that we all have. It is therefore very important that you bear in mind that you must not draw any adverse inference in a decline by the accused to answer any questions put to him by police, There are of course during the interview a number of questions which he answers, but you must not draw any adverse inference from those that he declined to answer.”
In written submissions, counsel for the appellant submitted:
“At no time did his Honour direct the jury that the accused’s failure to nominate to the police that another person resided at the premises was a corollary of his right to silence and therefore the jury should not draw any inference unfavourable or adverse to the accused and his defence from that failure.”
The direction sought would result in the jury being left with the testimony of the appellant asserting that he had made a self serving statement having to be regarded as uncontradictable. There was no breach of principle in drawing the jury’s attention to the available material which needed to be assessed to resolve an evidential conflict. The circumstance that one side of the contradiction involved something not being said as distinct from something different being said from the contention of an opponent did not offend any fundamental right of the appellant.
Ground 5
A charge to a jury is essentially an exercise in oral communications, on occasions supplemented by some written directions. It is common experience that the impression gained from reading transcript is different from that to be gained by a hearer who has the advantage of noting pauses, emphases, nuances of tone and the myriad matters which distinguish speech from writing.
There was no complaint by counsel at trial that the directions given about the use to be made of the evidence of the accused were either inadequate or confusing. The complaint encapsulated in the ground was not advanced until leave to amend was granted during the hearing of the appeal. It would not be an unfair inference that counsel who appeared in the appeal (who did not appear at trial) did not originally perceive inadequacy or confusion when preparing for the hearing.
Be that as it may I am unpersuaded that viewed as a whole the jury was given inadequate assistance or misleading direction concerning the evidence of the appellant. Rule 4 applies and I would not consider that it was appropriate to grant leave to rely upon this ground but, as I have said, I would not sustain it in any event.
Application for leave to appeal against sentence was expressly abandoned by senior counsel at the hearing of the appeal and in the presence of the appellant.
I would dismiss the appeal against conviction and refuse leave to appeal against sentence.
IRELAND J: On 13 July, 1998 the appellant stood trial before Kirkham DCJ and a jury of twelve in the Sydney District Court on an indictment which charged that he on or about 18 December, 1997 at Earlwood in the State of New South Wales did supply a prohibited drug, namely heroin, which was not less than the large commercial quantity. This charge is in contravention of s 25 of the Drug Misuse and Trafficking Act, 1985. The maximum penalty for an offence under this section is a fine of 5,000 penalty units or life imprisonment, or both.
To this charge the appellant pleaded not guilty. On 17 July, 1998 the jury returned a verdict of guilty as charged.
On 21 September, 1998 the appellant was sentenced to imprisonment for a term of 7 years, comprised of a minimum term of 5 years and 3 months, with an additional term of 1 year and 9 months. The appellant was arrested on 18 December, 1997 and remained in continuous custody from that date.
The Crown case, as summarised in Crown submissions “A”, is as follows.
At about 9 pm on 18 December, 1997 police entered and searched premises at 16 Barnes Avenue, Earlwood. These premises were divided into three flats and the appellant resided in the flat that was at the rear of those premises. The flat consisted of one bedroom, a lounge/dining area, a bathroom and toilet.
Police observed small chips of a white substance on the surface of the table in the lounge-room. When initially questioned about the chips, the appellant said “I was unpacking boxes on the table and that may be packing material”. When later asked to confirm this conversation, the appellant said “May be that’s what I said, may be”.
A search was conducted of the bedroom, during which five packages containing a white substance were located behind the bottom drawer of the wardrobe. The appellant upon being asked if there were any other narcotic substances in the house replied “No, there shouldn’t be, there shouldn’t be”. Further search of the bedroom disclosed a “lump of white substance and some white particles” under the bed cover. The appellant when confronted with these objects said “I forgot about that totally, seriously, I forgot about it totally”. When asked again if there were any more narcotic substances in the premises, the appellant replied “No, there is nothing else in the house”.
The conversation with the appellant, following the finding of the packages concealed in the wardrobe, was electronically recorded.
The appellant was arrested and taken to the Federal Police building where he declined to take part in an interview. He was charged and fingerprinted.
During the search of the appellant’s premises, the police located a number of personal possessions of the appellant. It was the Crown case that the presence of these items indicated that the appellant was living alone at the premises. The property located included the following:-
(a)      A wallet located inside a red backpack which itself contained the appellant’s passport and Canadian Social Security card, a Hong Kong identity card, and a Hong Kong bankcard in the appellant’s name. The passport indicated that the appellant had entered Australia on 24 October, 1997, departed on 23 November, 1997 and re-entered on 7 December, 1997.
(b)      Travel documents, including a Cathay Pacific return air-ticket from Vancouver to Sydney via Hong Kong, departing Vancouver on 5 December, 1997. These documents were found on top of the red backpack.
(c)       A number of business cards in the appellant’s name, which were located on top of the bed in the bedroom.
(d)      A pager, a piece of paper with numbers on it and a telegraphic transfer docket in the appellant’s name, these items being located in a plastic container in the bathroom.
(e)      An NRMA insurance certificate and RTA certificate of registration in the name of the appellant. These items were located on top of the table in the “lunch room”. The address on these documents was 13/12-16 Seventh Ave, Campsie.
During the search of the appellant’s premises, a roll of brown packing tape was found on top of the table in the lounge-room and an implement described as a “multi-tool” was found on the bed in the bedroom.
The owners of the premises at 16 Barnes Avenue, Earlwood, Ms Kuang and Mr He, gave evidence in relation to the rental of the premises. It was the Crown case that the appellant was the lessee of the rear flat of the premises.
Ms Kuang gave evidence that the premises at Barnes Avenue were divided into three portions and that each portion was rented separately. The flat in which the appellant was residing was advertised for rental in October, 1997. A male person responded to the advertisement and told Ms Kuang that he was looking for accommodation for a friend. This person later returned with a second person, who indicated that he wished to rent the premises. Ms Kuang knew this second person as “Ah Choo”, which was the appellant’s name. The appellant paid her $280 bond money, and rent each fortnight. The appellant told her that he would be living alone at the premises. The appellant telephoned on one occasion to say that he would be late paying the rent because he was away on holidays. Ms Kuang gave the only key to the flat to the appellant.
Ms Kuang stated that the appellant initially stayed in the garage at Barnes Avenue, because the previous tenant of the flat had not vacated it. The appellant stayed for one week in the garage, and paid her $50 rent. She then saw him, and the other person who had initially inquired about the flat, moving furniture from the garage into the flat. In particular, she saw them move the wardrobe, in which the packages of white powder were found concealed. Ms Kuang gave evidence that she had cleaned out the wardrobe before the appellant used it in the garage and that she saw the drawers removed from it when it was being moved from the garage into the flat.
Ms Kaung’s son, Xil Feng He, gave evidence that he saw the appellant at the premises at Barnes Avenue on a number of occasions when he went to tend the garden. He also saw the appellant in the flat when he went inside the flat to repair the shower curtain.
Detective Lindsay Rogerson gave evidence that he spoke to the appellant shortly after entering the flat on the night of the appellant’s arrest. He asked the appellant some questions about the flat and the appellant told him that his uncle had found the flat for him and that he was paying $150 per week rent.
Federal Agent Geissler gave evidence about the white powder, which was located in the appellant’s premises. In relation to the five packages of white powder found in the wardrobe, three were of a similar size and in yellow wrapping. The remaining two packages were of a similar size and in clear plastic wrapping. All five packages were held together with brown packaging tape. Agent Geissler removed the white powder from their individual packages and placed it into three bulk packages. Each bulk pack was sampled and weighed. The nett weight of the white powder from the five packages was established to be 2,610.3 grams. Agent Geissler also weighed and sampled a separate small block of white powder. This weighed 5.8 grams.
Evidence was given by Mr Peter Baker of the Australian Federal Police that the wholesale price of the heroin found at the appellant’s premises was $499,500 to $592,000.
The brown packing tape, from the five packages of white powder, was sent for fingerprint analysis and the fingerprints of the appellant were located on a number of pieces of tape.
The appellant made the following formal admissions:-
(1)      On 18 December, 1997 the police conducted a search of premises at which he was staying.
(2)      The police located five packages in the wardrobe and a white substance under the bed cover.
(3)      The above items were analysed and found to contain heroin. The total weight of the powder in all of the above items was 2,216.1 grams.
(4)      White specks were located on a table. The specks were analysed and found to contain heroin.
(5)      The police located a multi-tool and a black pouch on the bed. The multi-tool was inspected and found to contain traces of heroin.
The appellant’s case may be summarised as follows.
The appellant gave sworn evidence in which he denied any knowledge of the heroin found at the premises.
He stated that in late 1997 he was a Canadian citizen and a director of a telecommunications company in Vancouver, Canada.
In early 1997, he met a man at a social function, at a Chinese restaurant in Vancouver. This man’s name was David Wong and he told the appellant that he lived in Australia. Mr Wong gave his telephone number to the appellant.
When the appellant decided to visit Australia, late in 1997, he looked through his papers and found Mr Wong’s telephone number. He telephoned Mr Wong and it was arranged that Mr Wong would meet him upon his arrival at Sydney Airport.
The appellant flew into Sydney on 24 October. Mr Wong met him and they caught a bus into Chinatown for a meal. During the meal Mr Wong suggested that the appellant stay with him at his place. Mr Wong also offered to lend the appellant a disconnected mobile telephone. The appellant accepted this offer and they went to a nearby telephone store and purchased a memory chip for $100 worth of phone calls.
Mr Wong and the appellant then caught a train to Canterbury and walked to Barnes Avenue. When they arrived there, Ms Kuang was outside the premises and Mr Wong conversed with her. It became apparent to the appellant that Mr Wong had not yet rented the premises and the appellant offered to go to a hotel in the city. After further discussion, and persuasion by Mr Wong, it was arranged for the appellant to stay in the garage.
Mr Wong then told the appellant that he was going home, which surprised the appellant. They had a take-away meal and Mr Wong caught a train from Canterbury Station.
The appellant gave evidence that Mr Wong paid Ms Kuang $50 for the rental of the garage, and also later the bond money for the flat. This was because the appellant did not have any Australian currency.
After seven days in the garage, the appellant and Mr Wong moved into the flat. The appellant and Mr Wong moved the wardrobe into the bedroom.
The appellant placed some clothes and his backpack in the wardrobe. Mr Wong also had clothes in the wardrobe. The appellant gave evidence that he slept on the couch in the lounge-room and Mr Wong slept in the bed when he was at the flat, which occurred about three or four times a week. Mr Wong would leave the rent money for the appellant to give to Ms Kuang. On a number of occasions Mr Wong had friends at the flat.
When Mr Wong was at the flat, he often packed boxes with computer parts. The appellant assisted with the packing by cutting slips of tape. The appellant would unroll the tape, and Mr Wong would cut a piece using the multi-tool. This process continued until they had about twenty pieces. They would initially stick the pieces of tape onto the table and then onto the boxes to seal them. The appellant recalled that on one occasion, he assisted to cut strips of tape and left them on the table for Mr Wong.
The appellant stated that since his arrest, he had attempted to locate Mr Wong without success. It had been difficult because his only contact with Mr Wong was through a mobile telephone number. The appellant stated that he had spoken to his solicitor about Mr Wong.
The appellant gave evidence about the night of his arrest. He said that he was watching television and there was a knock at the door. When he opened the door, the police rushed in, guns drawn. They pushed him into the lounge-room, placed him against the wall and spread his legs. They body searched him and asked him if there was anyone else living in the house. The appellant replied “Yes, but he’s not here at the moment”. He later told police that “The other guy arranged the property and brought me here”. When asked about the clothes in the wardrobe, the appellant said “Some of them are the other guy’s.”
When the drugs were found in the wardrobe, the appellant told the police “I have no knowledge how the drugs got there. I have nothing to do with those drugs.”
The appellant gave evidence that when he said “I totally forgot about it” in relation to the rock or white substance found on the bed, that he meant that he had no knowledge of it.

The appellant stated that he had never previously been in trouble with the police. The appellant’s father, Mr Peter Tang Cheung Yin, gave evidence that the appellant “Has been a good boy”, that he helps his two young brothers and was not a person to tell lies.
Mr Paul Kenny, the appellant’s solicitor, gave evidence that he had a conference with the appellant in March, 1998. In relation to the premises at Barnes Avenue, and how the appellant came to go to those premises, the appellant told him the name of a gentleman, a David Wong.
Mr James Pak, a close friend and business associate of the appellant, gave evidence in which he said they were co-directors of a company in 1997. The appellant came to Australia in 1997, partially for business but mainly for a holiday. Whilst in Australia, the appellant telephoned Mr Pak on a number of occasions. The appellant told him his accommodation was not great, but it was free and that was why he was staying there. He told him that he was living with someone named “David”, and that he had met David earlier in Canada. The appellant returned to Canada in late October, 1997 for business reasons. Mr Pak gave evidence that he had never seen the appellant connected with drugs in any way and that he considered the appellant trustworthy.
The appellant initially raised two grounds of appeal with a third ground alleging consequential miscarriage of justice.
During the course of argument on appeal, leave was granted to the appellant to rely on two additional grounds of appeal. Counsel for the appellant and the respondent have addressed these additional grounds (4) and (5) in further written submissions.
Ground 1 - The learned trial judge erred in declining to direct the jury that because of the conduct of its case, the Crown was not permitted to rely on joint possession.
The appellant submits that in opening the Crown case to the jury, the issue of possession was discussed in general terms. However, so the argument runs, in his closing address, the Crown Prosecutor relied upon a submission to the jury that the law provides for the exercise of such control and dominion to the exclusion of all persons acting in concert with the appellant and in this way raised joint possession, rather than exclusive possession on the part of the appellant.
The point was taken at trial. The trial judge declined to direct the jury in terms of this ground of appeal. His Honour in his reasons for declining to give the directions sought, set out the short passage from the Crown opening as follows:-
“Further, in relation to possession, that he, the accused was a person who had control of it either on him or in a place where he could access it and exclude other people from accessing it who are not involved in any course which he is undertaking in relation to the drug.”
Proceedings were recorded on audio tape. The passage cited above, in all material respects, is identical with that appearing in the transcript of the Crown opening, which is annexure “A” to the affidavit of Shauna Alexander, sworn 10 May, 2000, tendered on appeal.
In refusing the application, the trial judge considered the decision in R v Constantin Bejenaru (unreported, NSWCCA 11October 1991) to be precisely on point, citing the following passage from the judgment of Mathews J, with whom Mahoney JA and Sully J agreed:-
“When the Crown case commenced and indeed closed, it appeared to be a matter of the appellant having exclusive possession of the heroin, as there was no evidence of any other person having had access to Unit 12. Certainly another fingerprint had been found on some of the material found in the unit, but that did not necessarily indicate that another person had physically been inside the unit. However, all this changed during the course of the defence case. It was quite open for the jury to infer from the evidence given during the trial that both the appellant and the witness he called were involved in the possession of this drug. This was put to Mr Tudorov in cross-examination, and denied. But the material was there from which an inference to that effect might have been drawn, and the mere fact that another person might have been in joint possession of the drug with the appellant did not, in the circumstances of this case, detract from the quality of the appellant’s possession.
“It was thus appropriate, in my view, by the end of the defence case, that the jury should be directed in relation to joint possession. Accordingly, I can find no merit in the first ground relied upon by the appellant.”
The appellant seeks to distinguish Bejanaru on the ground that, in that case, evidence was led from which an inference might be drawn of joint possession “which did not detract from the quality of the appellant’s possession”. Whereas, by contrast, so the submission runs, the evidence of the appellant in the present case “… enabled an inference to be drawn as to the innocence of the appellant, or at least the possibility of possession by another person not complicit with the appellant.”
Counsel for the respondent points to the coincidence of fact between the present case and Bejenaru in that only during the cross-examination of Crown witnesses by counsel for the appellant and, more particularly, during the appellant’s own evidence did the other candidate as possessor emerge. This, of course, is in stark contrast to cases such as Filipetti (1984) 13 A Crim R 335 where there was no issue that the cottage in question was occupied by six adults.
The strength of the Crown case, in the present matter, was very properly acknowledged by counsel for the appellant. The eleven factual matters identified by counsel for the respondent from the facts set out above, pointed powerfully to the appellant being the possessor of the drug. Moreover, the inference which the jury were at liberty to draw on the Crown case, as opened and presented, was that if some other person or persons was or were involved with the drug, this was in conjunction with the appellant, rather than instead of him.
The Crown contention in this regard is to be preferred. Accordingly, on the above basis Ground 1 is not made out.
The submission that the appellant was, in effect, denied his right of silence will more conveniently be dealt with under additional Ground 4.
Ground 2 - Having allowed the Crown to rely on joint possession, the learned trial judge failed to correctly direct the jury in relation to this issue, insofar as:-
(a)      the learned trial judge failed to direct the jury that if they were not satisfied that the Appellant was in exclusive possession they were then required to make a factual determination as to the existence, identity and role of the alleged joint possessor;
(b)      the learned trial judge failed to direct the jury as to the significance of the possessor did not exist failure of the Crown to call evidence in support of its allegation that the joint; and
(c)      the learned trial judge failed to direct the jury as to the significance of the failure of the Crown to call evidence as to the Crown allegation that the joint possessor was acting in concert with the Appellant.
On behalf of the appellant, it is submitted that having acceded to the application of trial counsel for the appellant, and accordingly modified his directions to the jury in order to deal with “knowingly”, the directions generally given by the trial judge on the issue of possession are not the subject of complaint. The submission is made, however, that the directions given to the jury should have been more comprehensive regarding the concept of possession, including the physical element of control, the mental element and the need for the appellant’s control to be exclusive. Reliance is placed upon He Kaw Teh v The Queen (1985) 157 CLR 523; R v Popa (1991) 53 A Crim R 102; R v Filippetti (1984) 13 A Crim R 335; R v Solway (1984) 11 A Crim R 449; R v Tsoukalos (unreported, NSWCCA 7 December 1998).
During the trial, and prior to his Honour’s summing up, counsel for the appellant handed up a document headed “Minute” setting out extracts from a number of decided cases in relation to possession of drugs.
Reliance is placed upon the submissions made concerning Ground 1 in the present appeal, and reliance is further placed on the Crown failure to call the witnesses Wu and Woo, both of whom, it is submitted, “… might have supported the Crown’s contention that the appellant had sole possession or that the other Asians, i.e. Wong, Jia and Chen were acting in concert with the appellant.
The following points are sought to be made on behalf of the appellant, the trial judge having allowed the Crown to ‘change its case at the end’.
It is submitted that his Honour should have directed the jury as to:-
(i)        the significance of the Crown not negating the appellant’s case;
(ii)       the fact that the Crown had not called any evidence to rebut the fact of access to the premises by others;
(iii)      failure of the Crown to bring any evidence that the appellant was acting with knowledge and/or in concert with Wong and/or others;
(iv)      the failure of the Crown to explain the absence of any witness e.g. Wu and Woo, regarding visits by others to premises at 16 Barnes Avenue, Earlwood; and
(v)       the failure of the Crown to put to the appellant that he was acting in concert with another or others.
In response to these submissions, counsel for the respondent submits that if the jury were not satisfied that the appellant was in exclusive possession of the drug, there was no need for them to make a determination as to the existence, identity and role of the alleged joint possessor. It would have been sufficient if the jury were satisfied that the appellant was in possession with another person, even if they were unable to be sure as to that person’s identity. There is force in this submission.
Insofar as criticism is directed at the Crown’s alleged failure to call evidence negativing the involvement of others in possession of the drug, this ground falls away once it is recognised (as it is in this case) that it was open to the Crown to establish joint possession without identifying those in possession other than the appellant.
Importantly, the Crown was confined in the presentation of its case to the evidence available at the time of presentation. There was no evidence found at the premises 16 Barnes Avenue, Earlwood which reasonably suggested there was a second person in possession. The appellant did not identify the person he inferred was the “real” culprit until his case began at the trial. It would have been impossible for the Crown to call evidence that a particular person did not exist, and in any event the Crown had indicated that no evidence was found to suggest that another person occupied the premises.
The jury heard and assessed both the Crown and the defence cases. The trial judge gave ample directions as to the onus of proof, the presumption of innocence and emphasised the fact that the appellant did not have to prove anything. Appropriate directions were also given to the jury to the effect that even if they preferred the Crown’s version of events, they must be convinced beyond reasonable doubt of the appellant’s guilt. Proper directions were also given on the correct approach to circumstantial evidence.
The directions which the appellant submits should have been given, postulate criticism of the Crown by the trial judge for failing to call evidence in rebuttal of a defence case of which it had no notice and of which there was no evidence until the appellant entered the witness box. The contention is without merit. Ground 2 is rejected.
Ground 3
A conviction in such circumstances was a miscarriage of justice.
Additional Ground 4
The learned trial judge failed to warn the jury that they could not draw any inference unfavourable to the appellant because the appellant failed to mention to the investigating police the fact that a person named David Wong also occupied or had access to the appellant’s flat.
Additional Ground 5
The learned trial judge failed adequately to direct the jury as to the use they could make of the evidence of the accused in deciding whether the Crown had proved its case beyond reasonable doubt.
With regard to Ground 3 and additional Grounds 4 and 5, I have had the benefit of reading in draft form the judgments of Grove J and Adams J.
I agree with Grove J for the reasons given by his Honour and with the orders he proposes.
ADAMS J: I have had the advantage of reading the judgments of Grove J and Ireland J in draft form.
I agree with Ireland J that grounds 1 and 2 are not established.

Additional Ground 4

The learned trial Judge failed to warn the jury that they could not draw any inference unfavourable to the appellant because the appellant failed to mention to the investigating police the fact that a person named David Wong also occupied or had access to the appellant’s flat.
This ground was added by the appellant following questioning from the Bench as to the possible application the Evidence Act 1995 to the conversations conducted between investigating police and the appellant on or shortly before his arrest and the way in which this matter was dealt with by the learned trial Judge in his directions to the jury. Leave was granted to permit the appellant to add this ground.
Federal Agent Brett Smith gave evidence that when he entered the appellant’s unit, together with other officers, he had a conversation with the appellant after first introducing himself and producing the warrant. His evidence was -
“A short time later Mr Tang accompanied me from the bedroom to the living area of the unit. I pointed to a table in this room on which I observed several chips or granules or white powder. I indicated this chips to Mr Tang. I said “Do you agree that a short time ago police showed you this area here at your desk with specks of white powder on the desk?” Tang said “You didn’t show me but you told me about it.” I said “Okay, we told you. I’m showing you now. This is the powder that we’re referring to. I’m in the process of getting a field test kit and that will be tested for narcotics. Can you tell me anything about that?” Tang said “No comment.” I said “Do you agree that earlier when we spoke about it you told me that it was packing material?” Tang said “Maybe that’s what I said, maybe.” I returned with Mr Tang and other police officers to the bedroom area of the unit. I observed Detective Raftos locate five packages of a white substance from behind the bottom drawer of the wardrobe in the bedroom. I then heard Detective Raftos have a conversation with Tang using words to the effect, Raftos said “I’m placing you under arrest for possession of heroin. You understand?” Tang said “Yes.” Raftos said “I will caution you now that you are not obliged to say or do anything as anything you say or do will be taken down and may later be given in evidence against you, do you understand?” Tang said “Yes.”
A police video recorder was then activated. The appellant was asked whether he had anything to say about the powder in the packages and said, “No”. Following this evidence the learned trial Judge warned the jury that they should not draw any inference adverse to the accused by virtue of his exercising his right to silence.
Mr Smith could not recall whether he had a conversation with the appellant as to whose clothing was hanging in the wardrobe in which the packages of heroin were found but he denied that the appellant had told him that some of the clothes were his and some belonged to a person called David. He also denied that the appellant had said anything about a person called David.
In cross-examination Mr Smith conceded that, as a matter of course, one of the officers would have asked the appellant, “Does anyone else live here?” but said that he did not recall hearing the appellant say, as was put to him, “There’s another guy but he’s not here at the moment”. Mr Smith also said that there was a lot of general conversation whilst the police were in the unit, during which the appellant had given what the officer described as “a number of versions” of how he came to rent the premises. The officer said that he told him, “Wait until we get back to headquarters and you’ll be given a chance to participate in a video taped record of interview and contact a solicitor”. As I note above, in the result, the appellant declined to be further interviewed.
Detective Sergeant Rogerson was part of the police team who attended the appellant’s premises on the occasion of his arrest. He also had a conversation with the appellant but he recounted its effect rather than setting it out in dialogue form. His evidence was -
“Q. Do you recall his responses to those questions?
A. He’d been staying in that flat since 5th, about 5 December when he returned from Vancouver via Hong Kong. And he had been in Australia I believe back in October of 1997. I asked him how long he’d been staying in the unit for - no I didn’t ask him that. I had a conversation and from that I gleaned that he had been staying in that unit since his return to Australia. I asked him how he found the unit or flat, and he spoke along the - he mentioned his uncle had found it for him. And I asked him how much he paid in rent, and he, I believe he answered a hundred and fifty dollars a week. And I made, expressed the fact that he, I think he was paying too much for that flat. And that’s basically that conversation.”
Mr Rogerson denied that the appellant had told him that “the other guy rented the house and picked me up from the airport” saying, in effect, that the appellant had identified his uncle in this respect. Although he recalled someone asking the appellant whether there was anyone in the premises, he said that the appellant did not say any words to the effect that “there was another guy but he’s not here at the moment”. Senior Constable Fiona Walton, who, amongst other things, video taped the search of the premises, recalled Sergeant Rogerson saying to the appellant, “Why are you staying at this house?” but did not remember the appellant replying to the effect, “The other guy rented the house and picked me up from the airport”. She was not asked and did not say what answer she recalled the appellant giving to Sergeant Rogerson’s question. The appellant gave evidence to the effect of the matters put in cross examination to the police officers.
In dealing with this issue in his directions to the jury, the learned trial Judge said -
“Well members of the jury I want now to come to the circumstances and the inferences that the Crown asks you to draw in this case. I shall deal with, as best I can the circumstances upon which the Crown relies and then I shall deal with the inference that the Crown says that it is proper for you to draw on those facts.
“The first piece of circumstantial evidence is that on arrival in Australia the accused moved into premises at 16 Barnes Avenue Earlwood and immediately took up occupation in a room next to the garage at those premises. The only key was given to the accused. Prior to his occupation of that room a wardrobe in the room had been cleaned out by Qun Kuang, and was empty.
“In early November the accused moved into a residence in the house itself. And the accused with the assistance of a friend moved the wardrobe and other furniture from the room next to the garage into the residence in the house. Qun Kuang observed the wardrobe being moved and saw that it was empty. From those circumstances members of the jury the Crown asked you to draw the inference that the accused was renting the flat himself.
“The other circumstances which the Crown alleges supports that inference are, that on 18 December 1997 when the police attended the accused’s residence, he was the only person present at that particular residence. That during the search they located personal possessions of the accused in the lounge room and bedroom including the wardrobe. The police did not locate any items which would indicate that any other person was residing in the premises, and at no time on that occasion did the accused nominate to the police that another person was residing at the residence.
“Further, that during the period of the accused’s occupation, he personally made the rental payments. During the three occasions, two or three occasions that the land lady and her son attended the premises, during the rental period, they were let into the residence by the accused, and he was the only person present. Those are matters the Crown submits permit you to draw the inference that the accused was renting the property himself.”

After his Honour’s summary of the Crown case and the elements of the charge, his Honour reminded the jury that the appellant had declined to answer some questions that were put to him by police at the time of his arrest and instructed the jury in emphatic terms that no adverse inference should be drawn against the appellant from his doing so. Despite the submission made to the contrary in this Court, it is clear that his Honour directed the jury that one of the circumstantial facts which “the Crown alleges supports” the inference “that the accused was renting the flat himself”, to take up the language of his Honour’s directions quoted in full above, was the failure by the appellant to mention that another person was residing there.
During his cross-examination of the appellant, the Crown Prosecutor put on a number of occasions to the appellant that he at no time said that David or another person was living in the premises. Questions to this effect were a significant feature of the cross-examination. Its thrust may be sufficiently gathered from the following -
“Q.      See the property in that room was all yours, wasn’t it?
A.       Not all of it.
Q.       So this whole, what you’ve been telling us about David sharing those premises with you, it’s just a story you’ve made up isn’t it
A.       No.
Q.       See after you were - after that day when you were arrested by the police, has it been at all suggested to you that maybe you should say someone else was living there at the same time?
A.       No.
Q.Then you could suggest someone else who lived there could have put it in there?
A.       No.
Q.       Because on the video what we see, from the very point they find the five packages, right, shortly after that you’re handcuffed and placed under arrest, okay? You have to answer.
A.       Okay, sure, yeah, you’re telling me.
Q.Well I’m asking you, you were there, you were handcuffed and arrested is that right?
A.       Yeah.
Q.It’s not a matter of me telling you things, you tell us what happened, okay?
A.       Now when that was done you knew that the finger of the police was pointing directly at you for the drugs, correct?
A.       I would assume that yeah.
Q.       But at no time from that point, at no time did you at all suggest that these are David’s, or David lives here, they could be his, did you?
A.       No that’s not true, I did.
Q.       At no point did you say, “That’s not my bed, David uses that bed”.
           A.       No I never said that during that time no.”
The point made by the Crown Prosecutor was that the evidence given by the appellant as to another person having possession of the flat was a recent invention fabricated after his arrest. Accordingly, I do not accept the submission made here by the Crown that, taken as a whole, the cross-examination did not suggest that the appellant’s omission to mention the other person to the police did not imply any criticism. Furthermore, it is obvious that his Honour considered that this was a significant element of the Crown case and his direction in this regard was not sought to be corrected.
In Petty & Maiden v The Queen (1991) 173 CLR 95 Mason CJ, Deane, Toohey and McHugh JJ said (at 99-100) -
“That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial Judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that a previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
“...[the] denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason or his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent to a source of entrapment...”
This principle is now given legislative form, where there is a failure to answer questions, in s 89 of the Evidence Act 1995, which states -
(1)      In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:
(a)      to answer one or more questions, or
(b)      to respond to a representation,
put or made to the party or other person in the course of official questioning.
(2)      Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3)      Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.
(4)      In this section:
"inference" includes:
(a)      an inference of consciousness of guilt, or
(b)      an inference relevant to a party's credibility.
For the sake of completeness, I note that s 20 of the Evidence Act 1995 relates only to a failure of a defendant to give evidence and does not concern a failure to disclose any material fact on police questioning.
As was pointed out on a number of occasions by the Crown Prosecutor in cross-examination of the appellant, there were a number of occasions when the appellant had an opportunity to tell the investigating police that another person was in occupation of the premises. However, it was not suggested by the Crown that this would have been a direct answer to any question or suggestion put to him by the officers although their evidence was to the effect that a question about occupation either would have or had been asked. It is somewhat odd that, although they were more or less certain that the appellant had not mentioned another occupant, they were never asked and did not say what his answer was. Thus this was not a case in which the Crown relied upon a change of story: it relied on the accused’s silence. Nor was this an instance to which s 89 in terms applied, since it was not suggested that the appellant failed to answer any question concerning occupancy.

100 The fact that the appellant did not mention any other occupant, if that is what the jury found (which would have necessitated their disbelieving him on this point) may well have been very significant from the jury’s point of view. That made it all the more essential that they should be directed in unambiguous terms that such a line of reasoning was not, in law, permitted. The mere fact that the appellant’s case raised the factual issue whether he had told the police about the involvement of David in the premises, does not permit the conclusion that he did not to be used adversely in the sense that it might be a circumstantial fact relevant to his guilt or affected his credit. Of course, the jury may have thought it important to determine whether the appellant was telling the truth about what was said on his arrest and it was appropriate that they should have been directed on the material evidence that bore on the question. However, the jury must still have been directed on the use, if any, they might properly make of the appellant’s silence on the matter, if they decided that they did not believe his evidence that he had mentioned it. In my view, they should have been directed that they were not entitled to use his failure to mention the other occupant in determining whether his evidence that there was such another occupant might be true or whether there may, in fact, have been another occupant. Assume that the applicant had not taken issue with the prosecution account of the events surrounding his arrest. It could not, in that event, be suggested that his failure to mention David at that time should be used to evaluate his evidence in the trial that David was resident in the premises at all relevant times. Nor could it be suggested that the jury could use his failure to mention David to the police in determining the ultimate issue whether may have been another occupant who, rather than the appellant, had possession of the drugs. Perhaps somewhat closer to the facts here, assume that the police had asked the appellant whether there was another occupant of the premises, s 89 of the Evidence Act 1995 would have applied in terms to exclude any adverse inference being drawn from his declining to answer, if he had done so. With respect to those who have a differing opinion, I consider that the appellant’s evidence that he had mentioned the man did not affect the position.

101 In my view, the passage from the learned trial judge’s summing up (set out above) in which his Honour refers to the failure of the appellant to “nominate to the police that another person was residing at the residence”, in the context, is a direction that the jury were entitled to use his silence in this respect as a circumstantial fact supportive of guilt or, at the very least, in evaluating his evidence about the matter at trial. I do not see how it could be otherwise understood. The mere fact that counsel at the trial did not seek any redirection does not, to my mind, mean that the passage should be seen as innocuous: it was not in any relevant sense ambiguous. At all events, the jury needed to be given a positive direction that correctly directed them as to the use to which the accused silence could not be put. With respect to the views of those with whom I differ, I consider that the general passage from the summing up which Grove J sets out is inadequate for this purpose. It is directed specifically to the evidence that the appellant declined to answer particular questions asked by police and would have been understood as being limited to that situation.

102 The passage in R v Petty & Maiden which I have set out above authoritatively demonstrates that these directions contained a serious error of law.

Additional Ground 5

103 At the hearing of the appeal, leave was granted to the appellant to add the following ground -

The learned trial Judge failed adequately to direct the jury as to the use they could make of the evidence of the accused in deciding whether the Crown had proved its case beyond reasonable doubt.

104 The directions to the jury followed a conventional sequence. His Honour commenced with a reference to the different functions of judge and jury, the requirement for the unanimity, the onus and standard of proof, fact finding, the need to remain objective and the resolution of conflicting evidence He then dealt with the accused’s evidence. In doing so, his Honour said -

“Now I think I had reached the stage where I had talked about fact finding. I want to just mention to you one matter, and that is that the accused gave evidence in the trial. In this case he was not obliged to do that and he could have said nothing at all, because as I said earlier, it’s not for the accused to prove his innocence to you, it’s for the Crown to prove his guilt to you and to prove it beyond reasonable doubt.
“But by giving evidence the accused became a witness like all of the other witnesses in the proceedings, and the evaluation of his evidence relies upon the same principles that you rely upon in respect to the other witnesses in the case. It may be said that the case turns upon whether or not you accept the evidence of the Crown witnesses as against the evidence of the accused. But that would be a trap that you should not fall into, because what it tends to do if you approach it trying to weigh the evidence of the Crown case and weigh it against the evidence of the accused.
“I have told you already that the accused does not have to call any evidence, he has nothing to prove. If you approached your duties in that way you may fall into the trap of saying well I think I’m weighing the accused’s evidence as against the Crown evidence and I think I prefer the Crown evidence. That is not what it is all about. You must at the end of the day be satisfied beyond reasonable doubt on the Crown case and not on whether or not the accused has failed to satisfy you, if you understand what I mean. Because it is a reversal of the onus that the criminal law places upon the Crown.
“So even though you think at the end of the day that you prefer the evidence of the Crown case as against the evidence called by the accused, it still means that you must be satisfied beyond reasonable doubt by the Crown of the guilt of the accused. So please do not enter into an evidence weighing exercise, one weighing against the other because it could unconsciously tend to put you in a position where you are placing some onus of proof on the accused and there is none.”

105 His Honour went on to deal with the evidence of good character that had been given on the appellant’s behalf, went on to explain that the case concerned circumstantial evidence and explained to the jury how inferences might be drawn from established facts. His Honour said -

“However, before you can find a person guilty of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make. It follows that if there is another finding which is reasonably open, that is if there is another reasonable explanation which is consistent with innocence, it is your duty to find the accused not guilty. And of course when you consider circumstantial evidence, you do so in the light of all of the other material in the case, including the material placed before you by the accused.
“Now in a circumstantial evidence case, you should not reject a circumstance because when it is considered alone, no inference of guilt can be drawn from it. What you should do is to decide whether or not you accept the evidence relating to it in isolation, but in the light of the whole of the evidence and then you may draw an inference of guilt as you wish or otherwise from a combination of facts, none of which viewed alone would support that inference.”

106 His Honour then set out the items of circumstantial evidence relied on by the Crown, some of which I have already set out in dealing with Ground of Appeal 4. There is no need to mention for present purposes the other circumstances relied on. His Honour then dealt with the elements of the offence charged and pointed out, as was undoubtedly the case, that the major issue in the trial was the question of possession. His Honour mentioned the evidence upon that issue including, in particular, the course of events surrounding the search of the appellant’s premises and discovery of the heroin. His Honour summarised the evidence adduced by the Crown and then that given by the appellant and on the appellant’s behalf. Moving to counsel’s submissions to the jury, the learned trial Judge said -

“The Crown says that you would reject entirely the evidence put forward by the accused that David Wong was living in that room and he was living on the smallish two unit sofa. His evidence that he always slept there, even when David was not there, you would reject, and his responses that have formed what I reminded you about were the inferences and the material going to the inferences upon which the Crown relies, that you would view those statements made by the accused at the time in relation to those matters that I have already spoken of that I will not repeat now, would persuade you with all of the evidence, when taken together, that the Crown has established the guilt of the accused beyond reasonable doubt, in that he was indeed in possession of that quantity of heroin at that time.
“On the other hand the accused says, in his case, and I remind you that you should not just balance these things up, bearing in mind that the accused has no onus of proof. The Crown bears the burden of proof beyond reasonable doubt.”

107 Although it is true that, in dealing with the nature of a circumstantial case, his Honour instructed the jury that they should have regard to all of the evidence in the case, including that of the accused, the other passages which are set out above directed the jury not to balance the evidence for the Crown against the evidence for the accused. This must have left the jury in a considerable state of confusion. His Honour was no doubt intending to tell the jury that, even if they rejected the evidence of the accused, that did not mean they should therefore automatically convict him but they would still need to examine the Crown case to ascertain whether they were satisfied beyond reasonable doubt that the elements of the charge had been proved. This is not only a conventional, it is clearly an appropriate, direction to give. With respect, however, his Honour’s directions, in attempting to elaborate the conventional direction, resulted in very significant confusion. Of course, it is correct that the question for the jury is not, at the end, which of the two cases are believed. But in determining the material question, namely whether the jury is satisfied that the elements of the charge is proved, they must necessarily consider all of the evidence and weigh up what each witness says including the accused. It follows that, where the Crown case depends upon inferences from proved facts, the jury must consider whether the accused’s explanation for those facts is reasonably possibly the truth. In considering which facts they find to be proved, the jury must consider upon any matters which are the subject of disputed or conflicting evidence, which account they believe. This necessarily involves a comparison of the evidence of the protagonists. In this case the only real dispute, as such, concerned what occurred on the occasion of the appellant’s arrest. A cognate substantial question was whether the jury thought it reasonably possible that the appellant’s explanation for the facts proved in the Crown case was true. That necessarily required them to examine the Crown case with that explanation in mind, in particular, whether the Crown had excluded the reasonable possibility, not only that the accused did not know of the presence of the drugs but also that the drugs were in the possession of someone other than (as distinct from as well as) the accused. It is only after they rejected, if they did so, the appellant’s explanation, that they needed to consider the Crown case by itself and ask whether it proved the appellant’s guilt beyond reasonable doubt. His Honour’s directions, however, may well have conveyed to the jury that they should evaluate the strength of the Crown case independently of the evidence of the accused at the stage of their deliberations in which they were endeavouring to ascertain the facts and whether the appellant’s explanation might be true. This was to impose a well-nigh impossible task on the jury. All that was necessary (and desirable) was for the learned trial Judge to have explained to the jury what were the circumstantial facts were which led, on the Crown case, to the conclusion that the charge was proved beyond reasonable doubt, that the accused gave evidence which, if it was reasonably possibly true, raised a doubt about his knowledge and possession of the drugs and reminded them that even if they rejected the accused’s account, they must nevertheless be satisfied on the facts which they found proved that he was guilty. Regrettably, his Honour’s attempt to elaborate on these simple reasoning processes may well have left the jury thinking that in some way, the law dealt with the accused’s evidence in a peculiar fashion, or that a circumstantial case was governed by special rules about the evaluation of evidence, despite his Honour’s direction that he was a witness like the others and his evidence should be evaluated on the same principles. In R v Tomazos (unreported, NSWCCA 6 August 1971), Isaacs J said -

“In the result, the conclusion appears to me to be inevitable that not only has there been a miscarriage of justice but a substantial miscarriage. The appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential pre-requisite that the trial Judge has put fairly, cogently and with clarity to the jury the accused’s defence. The weaker the defence, the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.”

108 No redirections were sought as to either of the matters specified in Grounds 4 or 5. However, I consider that they demonstrated errors of law of such a fundamental kind as to require that leave to raise them on appeal should be granted. Furthermore, although the Crown case was a very strong one, the trial was so flawed by the errors which have been described that this is not an appropriate case for the application of the proviso.

109 Accordingly, I would propose that the appeal should be allowed. Having regard to the strength of the Crown case, Ground 3 is not made out. A new trial should be ordered.

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LAST UPDATED: 27/06/2000