R v Theophanous
[2003] VSCA 78
•20 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 149 of 2002
| THE QUEEN |
| v. |
| ANDREW CHARLES THEOPHANOUS |
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JUDGES: | WINNEKE, A.C.J., VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 5, 6, 7 and 8 May 2003 | |
DATE OF JUDGMENT: | 20 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 78 | |
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CRIMINAL LAW – Breach of parliamentary privilege – Cross-examination of applicant at trial in breach of Parliamentary Privileges Act, s.16(3) – Consequences thereof.
CRIMINAL LAW – Conspiracy to defraud Commonwealth – Requirement to specify with precision nature and scope of conspiracy alleged – Trial judge’s directions in respect of conspiracy deficient – Requirements imposed by s.86(3) of Crimes Act 1914 (Cth.) discussed.
CRIMINAL LAW – Propriety of conduct of law enforcement authority – Whether conduct of law enforcement officers induced and/or constituted commission of offence or elements thereof – Applicability of principles applied in Ridgeway v. The Queen (1995) 184 C.L.R. 19.
EVIDENCE – Admissibility of recorded conversations through listening devices – Devices secured by warrants unlawfully obtained – Whether judge’s discretion not to exclude evidence correct. Australian Federal Police Act 1979, s.12G.
BRIBERY OF MEMBER OF PARLIAMENT – s.73A(1) and (2) Crimes Act 1914 (Cth.) – Meaning of “understanding” in respect of receipt of property or benefit – Whether “mutuality” required.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. A. J. Howard, Q.C., Mr. D. J. Lane and Mr.R.T.Barry | Solicitor for the Director of Public Prosecutions (Cth.) |
For the Applicant | Mr. S. A. Shirrefs, S.C., and Dr. J.F. Bleechmore | Doogue & O’Brien |
THE QUEEN v. ANDREW CHARLES THEOPHANOUS
INDEX TO JUDGMENT
Subject Matter Page Reference Paragraphs
Description of events giving rise
to the applications for leave 1-3 1-3
Summary of evidence upon which
convictions on counts 2, 3, 5 and 6
were based 3-30 4-55
Grounds of appeal argued in this
Court 31-32 56
Ground 16 – Parliamentary Privilege -
Reasons 33-47 57-72
Grounds 9, 17 – Misdirections in respect
of conspiracy alleged in count 2 –
Reasons 48-70 73-111
Ground 20 – Non-exclusion of
evidence procured as consequence of
obtaining warrants in breach of s.12G(2)
Australian Federal Police Act 1974 (Cth.) –
Reasons 70-76 112-117
Grounds 1A, 1B, 11 – Failure to
stay trial of count 2 and/or exclude
evidence unlawfully or unfairly
obtained – Reasons 76-93 118-165
Grounds 14 and 15 – Meaning of
“understanding” – s.73A Crimes Act
1914 (Cth.) 93-100 166-185
Grounds 5A, 5B, 12, 13 – Alleged
error in failing to stay trial in respect
of counts 5 and 6 and/or in failing to
exclude evidence on basis that evidence
unlawfully or unfairly obtained –
Reasons 100-105 186-201
Conclusions on conviction applications 105-107 202-204
WINNEKE, A.C.J.;
VINCENT, J.A.,
EAMES, J.A.:
The applicant, Andrew Theophanous (whom we will call “the applicant”) was charged on indictment with six offences alleging breaches of the Crimes Act 1914 (Cth.). After a trial, lasting some two months in the County Court, the applicant was convicted on four of those counts (counts 2, 3, 5 and 6). He was acquitted of count 1 and the jury disagreed in respect of count 4. Each of the counts of which the applicant was convicted, charged him with the commission of offences of fraudulent and dishonest behaviour in 1998 and 1999 at a time when he was a member of the Commonwealth Parliament. Counts 2 and 3 alleged, in essence, that he defrauded the Commonwealth by deliberately misleading responsible officers of the Department of Immigration and Multi-Cultural Affairs (“DIMA”) with an intent to cause those officers to act contrary to their public duty. Counts 5 and 6 alleged offences of bribery contrary to s.73A(1) of the Crimes Act. Although the essence of the offences charged in counts 2 and 3 was the intentional misleading of the public officers to induce them to act contrary to their duty, it did not involve, as a central plank in the proof of the offences, that money had changed hands. Nevertheless, the Crown allegation that the applicant had received corrupt payments in respect of his conduct bore upon the question of his intent. The judge sentenced the applicant to a total effective sentence of six years imprisonment and fixed a minimum term of three-and-a-half years before he would become eligible for parole. The applicant has sought leave to appeal to this Court against both the convictions recorded and the sentences imposed.
The offences of which the applicant was convicted specifically charged him as follows:
Count 2
“That between the 4th day of July 1998 and the 22nd day of February 1999 at Melbourne in the State of Victoria [the applicant] did, contrary to s.86 of the Crimes Act 1914, conspire with Peter Yau, Frank Cheung and Chen Qing, to commit an offence against the law of the Commonwealth, namely defraud the Commonwealth contrary to s.29D of the Crimes Act 1914.”
Count 3
“That between the 1st day of December 1998 and the 8th day of February 1999 … [the applicant], contrary to s.29D of the Crimes Act 1914, did defraud the Commonwealth, namely by falsely representing to officers of the Department of Immigration and Multi-Cultural Affairs that the relationship between ‘John Jang’ and his wife was ongoing.”
Count 5
“That on about the 4th day of January 1999 at Broadmeadows in the State of Victoria, [the applicant] contrary to sub–section 73A(1) of the Crimes Act 1914, being a member of the House of Parliament, did receive property for himself, namely $2,000, on an understanding that in the exercise by him of his duty or authority as such a member would, in any manner, be influenced or affected.”
Count 6
“That, on or about the 25th day of January 1999 at Broadmeadows in the State of Victoria [the applicant], contrary to s.73A(1) of the Crimes Act 1914, being a member of the House of the Parliament, did agree to ask for property for himself on an understanding that the exercise by him of his duty or authority as such a member would, in any manner, be influenced or affected.”
The total effective sentence which was imposed by the judge upon the applicant for these offences was, as we have said, six years’ imprisonment. That sentence was made up as follows:
Count 2: Five years’ imprisonment
Count 3: Three years’ imprisonment
Counts 5 and 6 : One year’s imprisonment on each.
In accordance with the provisions of s.19(2) of the Crimes Act (Cth.), his Honour directed that the sentence on count 2 commence on the day of sentence (namely 11 June 2002); that the sentence of three years imposed upon count 3 commence on the 11th day of December 2004; that the sentence of one year upon count 5 commence on the 11th day of March 2007; and that the sentence of one year’s imprisonment on count 6 commence on the 11th day of June 2007. The effect of those disparate commencement days was that the total effective head sentence imposed upon the applicant would expire 12 months after the 11th day of June 2007 – that is six years from the day upon which these sentences were imposed.
Summary of the Evidence led at the Trial
A significant part of the evidence which was placed before the jury by the Crown related to the conspiracy alleged in count 2. The conspiracy alleged was particularised by the Crown as follows:
“To influence officers of the Department of Immigration and Multi-Cultural Affairs (DIMA) to act contrary to their public duty in permitting Chen Qing to enter Australia under a valid visa by falsely representing that ‘Chen’ was likely to leave Australia in compliance with the conditions of such visa.”
In respect of this conspiracy, the applicant was tried alone. His co-conspirator Yau had pleaded guilty, and gave no evidence. Cheung – who was named as a co-conspirator - gave evidence for the Crown. The remaining co-conspirator, Chen Qing, was at all times in China and gave no evidence.
In his career as a Parliamentarian, the applicant had interested himself in immigration affairs and, in particular, had made representations on behalf of the Asian community in respect of applications to enter this country. It seemed that he propounded a view, in championing the interests of immigrants from Asia, that the immigration policies developed by the Department were discriminatory in their effect against such applicants for entry. The applicant was apparently known to and friendly with one, Peter Yau, who, as alleged by the Crown, was a co-conspirator with the applicant in the conspiracy alleged in count 2 and acted as the applicant’s agent in conversations which took place between Yau and Cheung – also alleged to be a party to the conspiracy. Unbeknown to both the applicant and Yau, Cheung was, at the relevant time, a registered informer of the National Crime Authority (“NCA”).
It appears that the NCA’s interest in the applicant was aroused, co-incidentally, in 1998 when officers of the Authority were investigating a drug importation scheme involving a man named David Choi who was known to the registered informer Cheung. In the course of conversations between Cheung and Choi, the latter informed Cheung that he had had some problems which he was encountering in bringing his wife to Australia from China; but that he knew a politician (“Dr. Andrew”) who could assist in immigration matters. This conversation was reported by Cheung to his controller, who instructed Cheung to attend a meeting at “Plumes” Restaurant on 4 July 1998 where Choi was to meet with both the applicant and Peter Yau. At this and various further meetings listening devices, which had been obtained by warrant, were affixed to Cheung, who apparently was also wearing a “body tape”. In this way many recordings of the conversations which took place between the various parties were made and transcribed and, ultimately, placed before the jury.
Meeting of 4 July 1998
This meeting had been arranged between Choi and Yau solely for the purposes of Choi receiving advice as to the steps he should take to arrange for his wife to come to Australia. Cheung was apparently present both as a friend of Yau and as an interpreter for Choi. Co-incidentally, Cheung himself, according to the Crown, had a desire to arrange for a female friend whom he knew in China (Chen Qing whom we shall call “Chen”) to come to Australia. Accordingly, so the Crown alleged, he determined to use the meeting of 4 July to gain some advice on this topic for himself. At the meeting he expressed his desires to the applicant who, at that stage, appears to have been non-committal, suggesting that the matter could be discussed at a later time.
In the early part of August 1998, Cheung met or spoke with Yau on numerous occasions, seeking Yau’s assistance, through the applicant, to bring Chen to Australia. Transcripts were made of these various conversations between Yau and Cheung. Each of the conversations occurred in the absence of the applicant and were excluded from the evidence at the trial.
Meeting on 14 August 1998 at “Lucky Chan’s Restaurant”
Cheung attended a meeting with Yau on 14 August 1998 at Lucky Chan’s Restaurant, where Yau advised Cheung, that the applicant would help him with his “immigration problem” but that the fees would be “very high”. Yau provided notes of “fees” to Cheung. These notes – so Yau said – had been compiled after discussion with the applicant. The contents of the notes of charges were as follows:
“1.Costs for Andrew and friend $17,000 plus $5,000 (legal fees included).
2.No need to call solicitor to assist this job because all job could be criminal case solicitor.
3.No discussion with Frank [that is Cheung]. They can manage this case if anything happened.
4. All advance payment (cash) before job started.
5. Must keep secret. No-one know this case.
6.If any complaint to Immigration, they will cancel job and no refund.
7. 90% successful. 10% depends on me.
8.If not approved by Immigration, Andrew will take 10% of the cost.
9. Andrew will advise all details for the application.”
In addition Cheung agreed to pay Yau $4,000 for his assistance. Yau told Cheung that he required half of this sum “up front”. The judge permitted the conversation at Lucky Chan’s Restaurant, together with the notes made by Cheung, to go into evidence against the applicant pursuant to the “co-conspirator’s rule”, notwithstanding that the Crown was later to concede at the trial that it could not exclude the possibility that Yau was the person who received and retained most of the money which was later to be paid at the expense of the NCA.
On 7 September 1998 Cheung met Yau again at Plume’s Restaurant. In the course of the conversation between them Cheung said at one stage:
“Including your share, altogether it is $26,500; do you understand it is a huge amount; even a faked marriage would not cost that much …”
Cheung advised Yau that he had the money, namely $26,000, and the two of them made arrangements to visit the applicant’s office at a later date to hand it over. Yau organized a meeting at the applicant’s electoral office for 8 September 1998 at lunch time.
The money was supplied by the NCA on 8 September 1998. Cheung was given $26,000 in cash in a black laptop computer bag. Cheung placed $22,000 (that is $17,000 for the applicant and $5,000 for the “friend”) in the main part of the bag, and $4,000 in a side pocket of the bag, ready to hand over to Yau. Cheung went under the surveillance of the NCA Surveillance Unit when he drove to Yau’s house, collected him, and then drove to the applicant’s office. A listening device had been placed in the computer bag with the money.
During the course of the drive from Yau’s residence to Theophanous’ office, Cheung handed Yau the $4,000 (Yau’s share) and, inter alia, Cheung said to Yau that:
“Concerning these monies, I have divided them into two lots … one lot is $5,000 and the other lot is $17,000. Your $4,000 has been put aside by me; altogether it is $26,000.”
When they arrived at the applicant’s office, the applicant met Yau and took the bag from him. Yau accompanied the applicant to one of the offices in the building whilst Cheung remained in the foyer. The applicant and Yau then had a conversation which was recorded by the listening device in the computer bag. It was accepted, however, that at various times Theophanous had left his office to go elsewhere. At one point there was a sound of the opening of a zip and the rustling of paper. At about 12.45 p.m. Yau left Theophanous’ office. Initially he came out of the office without the bag, but Cheung advised him that he wanted the bag (which had the listening device in it). Yau then went back to the building and retrieved the bag which at that time was empty. The Crown conceded at trial that it could not exclude the possibility that Yau had stolen the money. During the meeting at the applicant’s office, the applicant and Yau had discussed Chen. The applicant proposed that Chen should apply for a visitor’s visa to come to Australia naming Cheung only as an associate. The applicant asked Yau if Cheung had had any dealings with immigration and Yau said that he had not. The applicant had told Yau to tell Cheung “to keep away from Immigration”. He said “We’ll get the forms” and that Chen was to say nothing about Cheung. He told Yau that after some two-and-a-half months following her arrival, Chen and Cheung “could get married” and say “they’d just met each other”. He explained to Yau that she would not qualify for permanent residence until she had been here for two years and that they would have to stay together for that period in order for her to qualify.
It appeared to be the Crown’s allegation that the conspiracy to defraud the Commonwealth, which was the subject of count 2, was complete as at this date; that is, 8 September 1998. As we will point out hereafter, the scope of the conspiracy and the time at which it was entered into was not articulated with any degree of precision. What occurred after 8 September 1998, as it seems to have been alleged, were the overt acts committed by the co-conspirators in performance of that conspiracy. That evidence included the following:
(a)The conversation between Yau and Cheung on 10 September 1998 in which Yau referred to Chen completing the visa application form and faxing it to Yau who would then take it to the applicant “for approval”. Yau told Cheung that there would be no need for him to return to China.
(b)Thereafter, before the end of September 1998, Cheung, with the assistance of his controller, partially completed the application form and faxed it to Chen in China. Chen filled in additional information. The applicant drafted the terms of a letter for Yau to write to the Immigration authorities, indicating that he (Yau) would support Chen whilst she was in Australia, and that he would supply Chen’s expenses.
(c)On 24 September 1998 there was a conversation on the telephone between Yau and the applicant, in which the applicant impressed upon Yau that he did not want Cheung or the other people whom he assisted to know about his involvement; nor did he want to see those people.
(d)Subsequently Yau signed a letter in support of Chen’s application in similar terms to that drafted by Theophanous but added a sentence which indicated that Chen would have a business interest in Australia as the agent of a company which was named. The documents were ultimately put together by Cheung and the NCA and forwarded to Chen for lodgment at the Australian Embassy in Shanghai.
(e)There were other conversations in the month of September 1998 between Yau and Cheung relating to the finalization of the letter of support for Chen’s application and the forwarding of those documents to her.
(f)In early October there was a conversation between the applicant and Yau in which they discussed the visit by Chen to the Embassy to lodge the application; in the course of the conversation the applicant stressed it was important that Chen not mention anything about Cheung.
(g)On 7 October 1998 Yau advised the applicant that DIMA had refused to accept Chen’s application. This apparently was untrue as Chen had not attended the DIMA offices in Shanghai.
(h)On 8 October 1998 Yau and the applicant had a telephone conversation about the lodgment procedures for Chen’s application. The applicant advised Yau that he had spoken to Todd Frew at the Australian Embassy in Beijing and that DIMA would process the application. Frew was the Chief Migration Officer in Beijing with the responsibility for China. The applicant had indeed had a discussion of some 20 minutes duration with Frew in which he had raised general issues about the administration of immigration policies in China, and in the course of which he raised the “Chen matter”.
(i)On 9 October the applicant rang Yau and told him that he had arranged for Chen to attend the Embassy on 12 October to see a Senior Migration Officer, one David Wilkinson.
(j)On 12 October 1998 Chen attended the interview with Wilkinson and submitted her application for a visa. The application was refused because it included a letter from her “employer” stating that he agreed to give her leave of absence, and a further letter from a company, with which Yau was apparently associated, signed by Yau, and which referred to Chen’s gaining knowledge of a “fish farming venture” in Australia with a view to acting as Yau’s agent in China. Wilkinson had explained to Chen that the application that she had completed was for a tourism visa and that because of her stated intention to undertake business activities she should apply for a “temporary business entry (short stay) visa”. He gave her the relevant forms.
(k)Chen faxed the form received from Wilkinson to Cheung. That form was completed by Cheung with the assistance of members of the NCA and faxed back to Chen. Chen then returned to the Embassy and submitted this new application form and the documents supporting it, which included the letter from Yau in both English and Chinese, and a letter from her brother-in-law. Wilkinson further interviewed Chen about this application through an interpreter. Wilkinson then contacted her brother-in-law whom she had nominated as her employer in China. The brother-in-law said he didn’t know anything about it although he did state that she worked in a company which specialised in “handbags”.
(l)On 13 October 1998 Cheung told Yau about Wilkinson’s phone call to Chen’s brother-in-law and complained to Yau that everything “was messed up” and “you must get Andrew to rectify the situation”. Yau then rang the applicant and told him what had happened, and the applicant advised Yau what he should say if he was contacted about the application : namely, that Yau had invited Chen for a holiday. The applicant had no knowledge of what had occurred and was apparently still under the impression that Chen had applied for a visitor’s visa.
(m)On 20 October 1998 the applicant telephoned Wilkinson who explained to the applicant the circumstances of Chen’s approaches. He also informed the applicant that Chen had lodged a further application in respect of which he would be making a decision shortly.
(n)On 24 October 1998 Wilkinson sent a letter to Chen informing her that her application had been unsuccessful because she had failed to meet the prescribed criteria in Part 456 of the Migration Regulations, to the effect that she was to satisfy the Minister that her expressed intention “only to stay in Australia temporarily for business purposes” was genuine. The letter stated that Wilkinson did not find her claims credible and that, in any event, the amount of income she received for her job would be insufficient inducement to make her wish to return to China.
(o)On 25 October 1998 Yau received a telephone call from the applicant who informed Yau that he had received a fax stating that Chen’s application had been rejected. The applicant stated that this was not “totally unexpected” given that the officers were making enquiries. The applicant told Yau that it was unusual for a DIMA officer to check by ringing Chen’s employer and indicated that he would have to intervene. The applicant also stated that if they could not help Cheung with Chen’s application then they would have to reimburse Cheung by giving him his money back.
(p)A copy of the letter of rejection of Chen’s visa application was faxed to the applicant by Yau on 3 November 1998. The applicant then rang Yau and discussed the matter. The applicant was upset that Cheung had acted without his knowledge in making “a business visa application”. Specifically the applicant said:
“If we are going to do business we can’t have people doing things against my advice … and in this case I didn’t want her to apply for a temporary business visa at all, I wanted her to apply for a visitor’s visa and it would have been easier to overcome it … “.
(q)On 4 November 1998 the applicant rang David Wilkinson in Shanghai. Wilkinson confirmed the grounds for refusing the visa application that he had set out in his letter of rejection, to which the applicant responded that Chen’s application was “a genuine one to visit friends in Australia and to broaden her business a bit”. Wilkinson said that he regarded himself as having sufficient information to make the decision which he made notwithstanding that Chen clearly had “the support from yourself”. Wilkinson referred to the unsatisfactory nature of the “business connection” and said that he was unable to simply make a decision on the basis of an assurance from somebody where the applicant cannot fulfil the “basic criteria”. The applicant advised Wilkinson that if a further application was made he would support it with a further letter, and told Wilkinson that:
“In the last two years … I have recommended very carefully a number of people for visitor’s visas from China and that every single one has returned.”
(r)Again, on 4 November 1998, the applicant rang Yau and advised him of his conversation with Wilkinson. They discussed the possibility of Cheung going to China to get married; but on the following day Yau rang the applicant and advised that Cheung was not willing.
(s)On 7 November 1998 the applicant spoke to Yau over the telephone and told him that “We have to prepare another story”. He suggested that Yau came to his office so that they could talk to Chen from the office on the loud speaker phone.
(t)On 17 November 1998 the applicant, Yau and Cheung met at Plumes Restaurant. During the course of the conversation, they discussed the rejection of Chen’s application by Wilkinson, in respect of which the applicant said that “That man behaved like a bastard anyway”. The applicant said that Wilkinson had “tricked her”. When Cheung said that the problem was that Yau’s letter in support of the application referred to a “seafood business”, the applicant replied that it was unfortunate that he did not “see that letter”. The applicant then advised Yau and Cheung that a new application for a visitor’s visa should be made and that he would provide a personal letter of support for it. He said:
“It’s a very hard thing for me to do. I have to lie to them, you see.”
In the course of the conversation the applicant further said the following:
“Well what happened is after this Wilkinson will never give me another case … well obviously because I’m going to give him an assurance in writing that she is going to go back, understand … When she comes we will say that she was introduced to you again, you fell in love. That’s going to be our story.”
The applicant sought from Cheung the level of Cheung’s commitment to Chen. Cheung told the applicant that he needed someone “to come here very urgently to look after my son”.
(u)During the course of the meeting referred to in the preceding sub-paragraph, Cheung telephoned Chen in China and spoke to her in Mandarin. Yau then spoke to Chen in Cantonese and then gave Chen pieces of advice at the applicant’s instruction, including advice to tell DIMA that she was coming to Australia on a visit and would be visiting parts of Australia with some Chinese people organized by Yau. Yau was instructed by the applicant to tell Chen to say that she was coming here for a holiday to visit Yau’s family as an old friend. Notwithstanding that Chen could not speak English, the applicant wanted to speak with her so that Chen could say that she had spoken to the applicant. And then he said to Yau:
“You tell her she’s to tell them that you acted as interpreter, okay.”
The applicant then spoke to Chen in English:
“Hello, how are you Miss Chen. Good. Well we’re going to try to help you come to Australia, okay (laughing). Alright now Peter will explain what you say to them in Immigration. Okay. I’ll put you back to Peter.”
(v)Yau then told Chen that she should tell the authorities that she had spoken to “Dr. Andrew”. Cheung had brought an Immigration form to the same meeting which the applicant had requested be filled in by Cheung. The form was then completed at the meeting. When Yau told the applicant about the wedding of David Choi’s daughter which was to take place on 19 December 1998 the applicant suggested that this could be given as one of the reasons for Chen’s visit. The applicant then instructed Cheung as to what he should write in the application form.
(w)On 22 November 1998 the applicant met Cheung and Yau at Plume’s Restaurant for lunch where the applicant provided Cheung with a letter of support, dated 20 November 1998, which he had addressed to Mr. Wilkinson. In that letter the applicant had stated (inter alia):
“I have now undertaken quite an [extensive] inquiry – including a lengthy discussion with Miss Chen’s sponsor, Mr. Peter Yau, and a discussion with her on the phone in which Mr. Yau acted as interpreter … . He [Yau] and his wife are eager for Miss Chen to visit them and renew acquaintances. … Another reason for the application is that the Yau family is keen that Miss Chen should be able to attend the wedding of a close friend about the 19 December … After my discussion with Mr. Yau, whom I have known for some time, and with the young lady (over the phone) I am certain that she intends a genuine visit and there is no desire to stay for a longer period or to frustrate immigration laws.”
(x)Yau also gave Cheung a letter dated 20 November 1998 on the letterhead of “Australian Sea Product Pty. Ltd.” in which he stated that he was prepared to look after Chen whilst she was in Australia. His letter included the following:
“I would like to invite Miss Chen to visit my family and attend a wedding ceremony of our common close friend’s daughter on 19 December 1998. I have no hesitation to provide Miss Chen accommodation and travelling expenses in Australia … I am assuring you that Miss Chen has no intention to stay in Australia for a period longer than three months.”
(y)The visa application form as completed was sent to Chen on 4 December 1998 by courier; and the application was supported by the personal letter of assurance from the applicant on official letterhead, and the letter of Yau.
(z)The relevant Migration Regulations which operated at the time and were applicable to “short-term tourist visas” listed a number of criteria to be satisfied before an application could be granted. These criteria included the need for “the applicant [to satisfy] the Minister that the expressed intention of the applicant only to visit Australia is genuine”. This was important in respect of applicants who were subject to “risk factors” (as were females from mainland China aged 25 years or older). In such circumstances, it was necessary for the applicant to satisfy DIMA that “there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry”.
(aa)On 11 December 1998 the applicant made a phone call to the Australian Consulate in Shanghai in which he made an appointment for Chen to attend the Consulate on 14 December 1998. Cheung transmitted $4,800 (approx) to Chen, which he had been given by the NCA. Chen attended the Consulate on 14 December where she produced her forms. She was interviewed on 16 December 1998 by Wilkinson who asked her why “her primary intention in her first application was for business reasons and why she had now changed to asking for a visitor’s visa”.
(bb)On 16 December 1998 the applicant spoke to the Minister for Immigration (the Rt. Hon. Philip Ruddock) by telephone about the matter and another matter relating to a friend of Yau. The applicant complained about Wilkinson’s advising Chen to apply for a business visa and then rejecting her. The applicant asserted to the Minister that Chen had no underlying purpose of remaining in Australia.
(cc)On 17 December 1998 the applicant rang Wilkinson in relation to the application and gave a further assurance that “he was satisfied” the application was “a genuine one”. Notwithstanding such assurance, Wilkinson, on the same day, made a decision to reject the application.
(dd)On 19 December 1998 the applicant met with Cheung and Yau following the wedding of Choi’s daughter. They discussed the rejection of Chen’s application. Inter alia, the applicant said:
“… For whatever reason he (that is Wilkinson) didn’t like her. These bastards are subjective you know. They have the ability to reject people merely if they like him or not. See. “
“… Now that was one thing for me to get commitment at that level but I didn’t mind. I didn’t mind misleading that … bastard because he’s a bastard, he’s a racist …”
(ee)The applicant and Yau, during the course of this meeting, had a disagreement over how much money the applicant had received to assist Cheung with his problem. When Cheung referred to having paid $22,000, the applicant denied having received that sort of money from Yau. Indeed he said “I didn’t get anything like that” and then asked Yau if he had got that money. Yau indicated that he had the money. The applicant then told Cheung that he would return to Yau what Yau had given him. The applicant said, in evidence, he was referring to “expenses” of $1,000 given to Yau and $120 to him.
(ff)On 21 December 1998 the applicant rang Yau and told him, inter alia, that he (Yau) “would have to do something about what Cheung had given [Yau]”.
(gg)On 22 December 1998 the applicant met Cheung. They discussed the money which had been taken into the applicant’s office on 8 September 1998. Cheung told the applicant about the return of some of the money by Yau. The applicant stated that if Cheung’s case was unsuccessful then he would get all of his money back, and further said that if Cheung had not told him about the money, he wouldn’t have got anything back. The applicant told Cheung that he did not have to pay any more money for Chen’s case, only some “expenses”. Cheung then handed $4,000 to the applicant. The applicant, in evidence, said that he had taken this $4,000 from Cheung because he assumed, from what he had been told, that it belonged to Yau who had been “forced out of it”. Yau had later told him that he wanted the applicant to “hold onto it”. The applicant told Cheung there were only two ways in which they could still bring Chen to Australia. The first was for him (that is the applicant) to speak to the Minister about it and get him to give a personal assurance in relation to the application. If that was successful they could pursue the idea of having Cheung meet her and a relationship developing. The second way was for Cheung to travel to Vanuatu and for she and Cheung to marry there. The applicant stated that he didn’t like the second option and suggested the following:
“So what we are going to do – I’m going to ring the Minister … trying to get her here, that means I give my word, I have to give my word to the Minister … to lie to the Minister that’s what I’d do.”
To which Cheung replied:
“You lie to the Minister, the Minister will be very shitty to you in the future.”
The applicant responded:
“That’s why I appreciate your generosity in the matter.”
(hh)In January 1999 the applicant rang one Peter Thomson, who was the Departmental Liaison Officer in the office of the Immigration Minister. The applicant complained about Wilkinson’s treatment of Chen’s applications. Inter alia, he said that he had spoken to Wilkinson, that Wilkinson had said that he (the applicant) had to satisfy himself that she was a genuine person. Accordingly, so said the applicant:
“… . I went to extraordinary lengths in this matter, I spoke to the sponsors here, I spoke to the woman through an interpreter; I went to absolutely extraordinary lengths and I wrote in writing, I gave him my personal assurance in relation to this matter … . What’s going on in these Embassies … I’ve never … such appalling behaviour and I can tell you this I want an explanation of the whole matter. Otherwise I’m going to name him in Parliament and I’m going to raise this whole question about Chinese visitors’ visas.”
The applicant told Thomson that he believed that Chen’s applications had been rejected because of his (that is the applicant’s) intervention in the process. He said that he believed that the rejection of the application reflected the bias of the immigration officers against him.
Thereafter, on 11 January 1999, the applicant faxed information about Chen to Thomson, including two facsimiles from the applicant to Wilkinson in relation to the rejection of Chen’s application.
(ii)On 25 January 1999 the applicant told Cheung that he was very concerned that Yau would try to blackmail both himself and Cheung, or either of them, because of the information that Yau had about them. He told Cheung that he had come to the view that Yau “was playing you against me and was trying to get a lot of money out of you and only give me a little bit”. He further said that “if I don’t succeed, I’ve said to you, I give you your money back”.
(jj)On 9 February 1999 the applicant met with the Minister and Thomson in Canberra to discuss the Chen case and another case. According to the evidence of the Minister, given at trial, his recollection was that:
“(The applicant) gave me his personal assurance that he had made further enquiries in relation to the bona fides of the family and was quite convinced that it was a genuine visit that was intended.”
The Minister explained his statement as meaning:
“That a person would come here for the purpose of undertaking a visit and leave Australia at the end of the term of the visa ... .”
(kk)On 22 February 1999 the applicant proposed to Cheung that if Yau was to return $6,000 to Cheung of the $26,000 paid, then:
“we were to split in half 10-10 … . You see, I said 10, you’ve got to give me he gave me a little bit but he still owes me more for the 10.”
The applicant’s evidence was that he was “leading Cheung along”.
The foregoing was the thrust of the evidence led in the Crown case against the applicant in respect of the conspiracy alleged in count 2. Although many of the conversations upon which the Crown relied contain material to suggest that the applicant expected, or indeed received, some payment in respect of his services with regard to the processing of Chen’s application, it was accepted by the Crown that it was not the receipt of money which was specifically relevant to the offence alleged in count 2; but rather what was of relevance was proof of an agreement to defraud the Commonwealth by inducing the DIMA officers to grant a tourist visa to Miss Chen by falsely representing to them that she would comply with the terms of the visa. It was the applicant’s defence of the charge alleged in count 2 that he was not a party to such an agreement.
The Applicant’s Case in respect of Count 2
There was no real dispute as to the accuracy of the transcriptions of recorded conversations. What was in issue was the state of mind of the applicant when he made the various utterances to which we have referred in the preceding paragraphs. It was the applicant’s evidence that his dealings with the Department of Immigration had led him to regard their practices to be discriminatory and improper and to justify him lending his assistance to those persons who, for genuine reasons, wished to enter Australia on a temporary basis. In the course of his evidence the applicant stated that it was his view that the Department adopted rules and practices which undermined the intention of the Parliament and operated as a discriminatory system, as a result of which applicants for visitor’s visas in some countries did not have to go to immigration offices at all, whereas, if the applicant was seeking to come from mainland China or Lebanon or a number of eastern European countries, it was necessary to apply to an immigration office. He said that the practices followed by the Department forced people into impossible circumstances because, if an applicant for a tourist visa was coming from China because she was interested in pursuing a relationship with a person in this country, she could not afford to disclose that interest even if they were not sure of the commitment. They either had to “say nothing” or say “yes we are definitely getting married” and then apply for “a prospective spouse visa”. Such a situation contorted the system, according to the applicant, because it forced an applicant for a visitor’s visa to suppress an actual or potential possibility or intention.
One of the applicant’s Parliamentary colleagues, Mr. Martin Ferguson, gave evidence at the trial that he had spoken to the applicant on 29 September 1998 to tell him that his “political opponents” and the Department were monitoring his (the applicant’s) activities in relation to immigration, including taking notes of his phone calls. In this respect the applicant said that he thought it was just part of the “general political battle” that he was having with the Department and the Government on immigration issues. Nevertheless he was somewhat concerned about the possibility of “dirty tricks” being used by his political opponents.
The applicant admitted in evidence that the material presented to the departmental officer assessing the visa application of Miss Chen was “incomplete” and that he knew her purpose of coming to Australia was to explore the possibility of a relationship with Cheung. He gave evidence that people had the right to come under a visitor’s visa and to apply for a new visa whilst they were in Australia, that that was enshrined in the legislation, and that an application by a person who contemplated that he or she might make a new application whilst in Australia were nonetheless “genuine applicants”. He regarded the purpose of Chen coming to Australia to be “to see if she and Cheung were compatible and could form a relationship”. Nevertheless, his evidence was that he did not know whether Cheung’s intentions would turn out to be genuine. He had an initial belief that there was a possibility of a relationship but had evidence to the contrary. Nevertheless be believed that there was a lawful entitlement for people on a visitor’s visa to find out if such a relationship was possible.
The applicant said there were three factors that influenced him to support the second “visitor’s visa” application. First, the conversations he had had with a Lucy Wang; secondly the behaviour of Wilkinson in changing the first application to a business visa application and then rejecting it; and, finally, balancing the rights of Chen with his later knowledge of the intentions and behaviour of Cheung.
The applicant said that in respect of “money”, Yau had given him $120 in late September to reimburse him for his personal expenses in relation to some documents that he requested for Chen. The applicant said that by mid-October, when Yau had shown him the application form for Chen, as filled in by Cheung, he was surprised to see the name of Cheung filled in on the form as “Keith Jeung”. He said that he had become suspicious and asked Yau whether he had received any money from Cheung. Yau had told him that he had received $1,000 which had been given to him as expenses for looking after Chen when she arrived. The applicant had insisted that Yau give Cheung a receipt for this money and that he bring him a copy of that receipt. This was done.
Count 3 – Defrauding the Commonwealth relating to the Permanent Residency Application by Li Hon Cheung (aka John Jang)
It was the Crown case that the applicant had defrauded the Commonwealth by falsely representing to department officers that the marriage relationship between John Jang and his wife was ongoing when it was not. The ongoing nature of the relationship was a requirement for the approval of permanent residency applications.
On 19 December 1996 John Jang had lodged an application to remain permanently in Australia under the “spouse 801 sub-class of the General (Residence) Class”. John Jang was born on 16 April 1954 in Canton and had left China for Hong Kong in 1972; coming to Australia on a two week visit in May 1982. He did not return to Hong Kong but remained in Australia, living in Melbourne until 1989 when he moved to Cairns. He worked in restaurants in Melbourne and Cairns and eventually began to run his own restaurant in 1991 in Cairns. In 1995 he married an Australian citizen of Vietnamese extraction (known as “Rose”); and it was Rose who was the nominated sponsor of his application for permanent residency. The applicant had signed the application for permanent residency as a witness to the signatures of John Jang and his wife.
The Migration Regulations set out the criteria which have to be satisfied at the time of making a decision on a “spouse 801 sub-class of General (Residence) Class”. Inter alia, the criteria include the requirement that the applicant continue to be nominated for the grant of the sub-class 801 visa by the nominating spouse; that the applicant is the spouse of the nominating spouse; and that “subject to sub-clause 7” at least two years has passed since the application was made. In the case of John Jang the period of “at least two years”, referred to in the requirements, was due to have passed on 19 December 1998.
In early December the applicant received two voice mail messages from John Jang advising him (the applicant) that John Jang’s wife had left him and the two children on that day (2 December). On 4 December 1998 John Jang had rung the applicant and told him that his wife was selling his shop and that if he did not pay her there would be trouble. The applicant had said that “even after the 19th she can do something if she wants to – this matter will be resolved one way or the other – see the 19th is not far away … So if she says she left you before the 19th we say it’s not true and we’ll say she left after – who’s to know?” (It should be noted that this conversation, or its interpretation, was very much in dispute at the trial.)
The applicant had told his own wife on 4 December 1998 that John Jang had been threatened by his wife; that Jang’s wife knew that 19 December 1998 was an important date in relation to the husband’s visa application and that she was trying to blackmail him in relation to it. [The applicant’s wife gave evidence at the trial.]
On 21 December 1998 the applicant spoke to one John Fensling of the Department about John Jang’s permanent residency application. Fensling advised that John Jang would get permanent residency at the end of two years if his relationship with the nominating spouse was ongoing. The applicant assured him that it was ongoing and that they had two children born in Australia. Fensling indicated that that was good evidence and that John Jang would be sent a letter about permanent residency procedures and outlined the types of documents which John Jang would need to provide as evidence that he and his wife were still together. The applicant’s evidence was, in relation to this phone call, that he was merely repeating the criteria given to him by Mr. Fensling. He further gave evidence that there had been intervening phone calls between himself and Jang in which he was informed that the wife had returned to the family house.
Late on 21 December 1998 the applicant rang John Jang telling him that he would have to prepare some paperwork signed by himself and his wife to show that they were still married and living together; and that he might have to give his wife one of his properties or businesses so that she would do it.
On 27 December 1998 John Jang rang the applicant and told him that, although his wife had left him a week beforehand, she was still going to the shop, and was still stealing from the till. In a further conversation on 30 December 1998 they discussed the fact that after the application had been approved, there would be papers which the wife would have to sign; the applicant said he would have to persuade her to sign.
The applicant telephoned John McLauchlan, the DIMA officer handling John Jang’s application on 6 January 1999. They discussed the approval of John Jang’s application and the applicant advised that he knew John Jang well, had attended his wedding and had seen the birth of his two children. The applicant asked whether a statement about his marriage and children would be required. The officer advised that due to the fact that he had spoken to the applicant, that had all been covered.
On 11 January 1999 the applicant received a fax from the departmental officer (McLauchlan) regarding the application for a permanent visa in the spouse 801 sub-class of General (Residence) Class. The facsimile attached a letter from the officer to John Jang which stated that his application “had been successful” and had been granted a permanent visa on 11 January 1999. Thereafter the applicant rang John Jang and advised him that his application had been approved without the need to submit a document signed by his wife.
On 13 January 1999 the applicant advised John Jang not to report his wife as missing as it may jeopardise his immigration status. He stated that “they’ll ask a lot of questions and Immigration might find out about it. What we’ll do is just pretend as if everything’s alright and just won’t talk to people too much, okay”. The applicant further told John Jang that he had saved him “about $60,000” because “that’s what she would have demanded from you to sign the paper”.
The departmental officer (McLauchlan) gave evidence that the basis of his decision to grant the permanent residence status was his conversation with the applicant on 6 January 1999. He also said that, if he had been aware that there was difficulty in the relationship between John Jang and his wife, he would not have made the decision he did.
When he was formally interviewed by NCA investigators on 5 May 1999, the applicant denied making any false representations to the Department in respect of John Jang. He claimed that he knew there were some marriage problems, that John Jang’s wife had left and come back, and that he became aware in about January 1999 that she had left.
The Applicant’s Defence in respect of Count 3
The applicant gave evidence of his relationship with John Jang over a period of some nine years. In respect of his conversation with Fensling on 21 December 1998, he asserted that by referring to the relationship as “ongoing” he was simply repeating the criteria given to him by Fensling. So far as his conversation with McLauchlan on 6 January 1999 was concerned, he said that he was surprised that it had not been necessary to complete a statement.
With respect to his conversation with John Jang on 13 January 1999, the applicant said that at the time he still thought that John Jang was deeply in love with his wife and that he had told him to tell his wife to return home; but that if she did not return John Jang was to tell her to contact the applicant and he would talk to her. Insofar as he had told John Jang that he had saved him “$60,000”, he was simply “bragging”. Furthermore he said that he was quite satisfied right up until the end of January that the marriage of John Jang and his wife could be saved.
Counts 5 and 6 – Bribery Charges relating to Liu Zhou Hui and Huang Jing He
Count 5 related to two Chinese persons who had “overstayed” their visas. The Crown allegation was that the applicant had received $2,000 from Cheung on behalf of these two Chinese citizens for assistance to remain in Australia. In respect of the second of these counts, namely count 6, it was the Crown allegation that the applicant had agreed to ask for bribes in relation to the exercise of his duty or authority as a Member of Parliament in respect of future immigration cases.
On 6 November 1998 Cheung told Yau about two friends who had overstayed their visas (a man named Cao and his wife Liu Zhou Hui) and requested Yau to ask the applicant if he could assist.
On 22 December 1998 Cheung met the applicant at the applicant’s office and discussed these matters. The applicant asked for some information about the people involved but no amounts were decided upon in relation to what they would have to pay.
On 4 January 1999 Cheung contacted the applicant and arranged a meeting for 5.30 that evening. The meeting took place in the applicant’s car and was recorded by Cheung. Cheung explained that there were two people who needed assistance. The first was Liu Zhou Hui, one of the people he had spoken about before; and the second was Huang Jing He who had arrived in Australia on a tourist visa on 22 July 1997 and had “overstayed”. Cheung further explained that Cao no longer wanted any assistance. Departmental records show that Liu and Cao entered Australia on 19 April 1998 on short term visas which expired on 19 July 1998. Huang had arrived on 22 July 1997 on a short term visa which expired on 22 August 1997. Upon expiration of their visas, those persons had become unlawful non-citizens.
Cheung had $2,000 which had been given to him by the NCA. He told the applicant that there was $1,000 for the woman (that is Liu) and $1,000 for the man (that is Huang). This money was handed over to the applicant for the purpose of initiating assistance for them. The applicant was reluctant to accept the money at that stage, and told Cheung that he would rather have the details about their situations first, so that he could decide whether or not he could help them. He did, however, accept the money and counted it in front of Cheung and then said “I’ll keep it”. In the course of his evidence in relation to the acceptance of this money, the applicant said he believed that either the money had been from real people or that Cheung was lying to him about taking money. He decided that he would have to “fix the situation” and investigate what was happening. He believed that if he did not accept the money he would have a lot of explaining to do; but he did not take it for the purposes of making a personal profit.
The applicant asked Cheung what he had told Liu and Huang about the fees they would have to pay. Cheung told him that he had said to them that they would be getting $2,000 for “his work” and that the rest of the $20,000 would be fees to other people, whom he did not name.
Huang had been interviewed by department officials on 3 December 1998. He advised the Department that he had applied for a visa on his Chinese passport and had been rejected. He said that he had got a second passport through a tour group which he used to enter Australia. The tour group had retained the second passport. This information had been conveyed to the applicant by Cheung. The applicant told Cheung that the case of Huang was “pretty hopeless” and that they might be able to delay Huang’s deportation from Australia for some two years by following through the appeal procedures available. He suggested that if it was possible during that two year period, Huang should get a divorce from his wife in China and they could “marry him off” to an Australian citizen.
In the light of the difficulties which Huang’s case presented, and the strong probability that he would ultimately be deported, the applicant discussed whether or not the case should be taken on. The applicant said “Now we have to make a decision here as friends, do we give him back his $1,000 or do we say to him alright”. The applicant went on to say the following:
“… If he’s saying to you that he is prepared to pay up to $20,000 if we succeed, then we can say to him; well look, okay if we succeed you get your delay for two years then that say the cost of that will be, let’s say $3,000 to be reasonable or 4, O.K. … Let’s say that we say $3,000 for delay for two years plus then he gets a divorce and then if he’s prepared to co-operate say six months or nine months later he gets married again here, then we apply for him to stay on the basis of the marriage.”
The applicant told Cheung that Huang would have to pay $3,000 first and that he would help Huang on one condition: namely that Huang did not tell anybody about dealing with Cheung in respect of the matter. The applicant criticised Cheung for giving Huang his name (i.e. Dr. Andrew) on the phone and told Cheung that it should be a rule with everybody whom Cheung assisted that “if you are going to be able to continue to do some of these exercises you’ve got to have people who shut their mouth”.
Cheung and the applicant then discussed Liu’s case. Cheung indicated that she had come to Australia as part of a tour for three months but had left the tour in Australia and the travel agent had retained her passport.
On 25 January 1999, whilst discussing assistance to immigrants in general, the applicant told Cheung about the dangers and illegality involved and stated that “If we get into any trouble between you and me we will have to deny everything”. He insisted that Cheung not tell assisted migrants that he was a Member of Parliament, but suggested that Cheung tell them that his “friend” was an immigration agent. The applicant also advised Cheung that it was illegal to give immigration assistance if not a registered agent. The applicant said that they should never “discuss money on the telephone” and that they must use codes. The applicant stated that he only wanted to “handle cases” that could be fixed within the Department without having to go to the Minister. The discussion ended with the applicant saying what was to occur in respect of future cases:
“I am happy to have a reasonable arrangement with you, okay. If the cases, if the case is relatively easy, okay we can charge them only about $7,000; if its easy and we can give you … would you say its between $7,000 and $15,000 depending upon how easy or difficult that is, okay … If its seven, you’ll get $1,500 and if its $10,000, you’ll get $2,000, and if its $15,000, you’ll get $3,000, right … But what we’ve got to do is we’ve got to make sure no one finds out about our arrangement.”
The applicant said that no money was to be paid until he and Cheung had had an opportunity to assess the papers to decide whether or not to take the case on. He considered that Huang’s chances of being able to remain in Australia permanently were slight, and during a discussion with Cheung on 25 January 1999, he outlined his view that Huang would be rejected first by the Department, and then the Tribunal and it was then that they would need to decide whether to go to the Minister, at which time they would need to “ensure that they had been paid”.
On 7 February 1999 Cheung had a meeting with the applicant. Cheung told him that Huang did not want any assistance with his refugee application and wanted to leave the matter in the hands of his lawyers. They then discussed whether the money that Huang had paid to Cheung and which the applicant had received from Cheung needed to be returned. The applicant asked Cheung whether Huang knew anything about him (that is the applicant) and when Cheung advised him that he did not, the applicant told him to tell Huang that he would not be reimbursed because of the work which had already been done on his behalf. The applicant told Cheung that he would give him back $300 out of the money that Cheung had given him from Huang. Having confirmed with Cheung that Huang believed he had given the money to Cheung, the applicant said:
“Well you can say look fair enough; I did a lot of work for this you know, so I’ll give you … did he give you $2,000 or $1,000? … Just say bad luck $1,000 you know, what’s a $1,000. It’s – he goes to a lawyer for a couple of hours, if he makes trouble then come back and talk to me again, right, but in the meantime I will give you the $300.”
Cheung and the applicant then discussed the matter of Liu. Cheung told the applicant that she could not pay more than $100 a week to be assisted. After some discussion the applicant told Cheung that she would be charged $5,000 in total but she would have her money reimbursed if her application was unsuccessful. The applicant further discussed whether Liu would be prepared to have sex with him in return for his assistance. He said that if “she is prepared to have some times with me but keep her mouth shut completely then we’ll do it for $100 for a year”. There were further discussions about these proposals; and on 22 February 1999 Cheung again met the applicant at his office where they further discussed the types of cases which they would “take on” in the future.
We conclude that no error has been shown as contended in grounds 14 and 15.
Grounds 5A, 5B, 12 and 13 – The Ridgeway discretion and counts 5 and 6
Although Dr Bleechmore sought to argue these grounds before us by reference to the principles in Ridgeway the application which was made to the learned trial judge only concerned count 5, and was based on Bunning v. Cross[92] rather than Ridgeway. No application for the exclusion of evidence was in fact made with respect to count 6. The contentions now advanced in support of these grounds (the written submissions in support of those contentions being supplemented by additional material during the course of argument) were not, therefore, the subject of any ruling or reasons delivered by the trial judge. Furthermore, the submissions made in support of these grounds strayed far from the terms of the grounds, despite the fact that the existing fifteen grounds of appeal had been expanded by the addition, with leave, of very many new grounds of appeal on 26 March 2003. In those circumstances our willingness to address these belated arguments is something of an indulgence, and should not be treated as a precedent for the future conduct of appeals.
[92](1978) 141 C.L.R. 54.
Count 5 was an offence of bribery under s.73A(1) of the Crimes Act 1914 committed on 4 January 1999. On that day Cheung paid $2000 to the applicant which he represented to the applicant as being funds provided by two persons, Liu and Huang. Those persons had overstayed their visas.
On 17 November 1998 Cheung had discussed with the applicant a proposal that he should assist over-stayers in obtaining an extension of their visas. The applicant was not enthusiastic, saying he wanted to concentrate on the efforts being made with respect to Chen. Cheung approached two persons in that situation, one of whom was Liu, and offered, for a fee of between $10,000 and $12,000, to provide the assistance of a contact he had. One of the original over-stayers lost interest and was replaced by Huang. Although the intended contact was to be the applicant Cheung did not tell Huang that his contact was a Member of Parliament, but he did, however, advise Liu of that fact. On 22 December 1998 Cheung discussed with the applicant the proposal that he might assist the over-stayers for a fee. The applicant said that he would assist but they should ask only for $1000 from each, “for expenses”, and he said that should a visa not be granted then the money would be returned. On 4 January 1999 when the sum of $2000 was paid to him the applicant suggested that Huang’s prospects of being able to stay permanently were not good but they might be able to delay his deportation by some years. Cheung said that the over-stayers were prepared to pay as much as $20,000.
The sum of $2000 was provided by the NCA, the over-stayers having no knowledge that it was doing so. When Cheung had suggested to Huang that he would be required to pay money Huang was agreeable (Liu was agreeable but lacked the funds) but he insisted on receiving a receipt for any money paid.
With respect to count 5 the Ridgeway discretion was said to be enlivened under the second category in two ways. In the first place, it was submitted that an offence of offering a bribe under s.73A(2) had been committed by both over-stayers, and by Cheung (the latter either aiding and abetting their offences or committing an offence in his own right). The offering of a bribe was said to be an essential ingredient or element of the offence of taking a bribe under s.73A(1), because, as counsel submitted, “For the applicant to receive, another party must give”. The second way in which the second category in Ridgeway was said to be relevant related to the same argument as earlier discussed concerning the need for mutuality of “understanding”.
In offering of the sum of $2000 with the understanding that it was to be a bribe Cheung arguably committed an offence under s.73A(2), and although Cheung was merely acting as an NCA agent and had no intention that the applicant actually perform any service in return for the bribe we will assume it to be so. We will assume, further, that the offence was committed by Cheung at the behest of the NCA, and that the NCA and its agents thereby also committed that offence.
In our view, the offering of a bribe is not an essential element of the offence of bribery under s.73A(1). The submission confuses the elements of the offence under s.73A(1) with the evidence which might be led to prove it. As may be seen by its terms, s.73A(1) is primarily concerned with the holding out by the Member of Parliament of his or her willingness to be bribed, or else concerns the actual receipt of funds as a bribe. The sub-section posits a multitude of ways in which the Member of Parliament might commit an offence under s.73A(1), but whilst one of those would be the actual receipt of property as a bribe, it is not essential for there to be the payment of funds in order for an offence to be committed under sub-section (1). The offence of offering a bribe to a Member of Parliament under s.73A(2) is quite distinct from the offence under s.73A(1) and in our view the former offence does not constitute an essential ingredient of the latter.
The alternative basis for the contention that Cheung’s conduct was an essential ingredient of the applicant’s offences depended on acceptance of the interpretation of the word “understanding” in s.73A(1) which was the subject of grounds of appeal 14 and 15. As we have earlier stated, we do not accept the contention of counsel for the applicant that in order to prove an offence under s.73A(1) the prosecution must prove that the applicant’s understanding was shared by anyone else. Accordingly, this basis for the application of the Ridgeway discretion does not arise.
Although the written submission asserted that it was under the second category of Ridgeway that the discretion arose with respect to counts 5 and 6, some of the arguments seemed to address the first category or a hybrid category, in which somewhat different public policy considerations were addressed about the conduct of the NCA than those discussed in Ridgeway. Thus, rather than the focus of attention being on the effect of the conduct of the NCA in procuring the commission of an offence by the applicant one relevant effect of that conduct was said to be that it procured an offence by persons who were not charged on the presentment, namely, Liu and Huang. It was said that this was a particularly heinous abuse of its powers by the NCA and such conduct deserved the court’s condemnation by way of the exclusion of evidence concerning offences committed by the applicant. This argument was not one raised before the judge.
In our view, Ridgeway was concerned about the procurement of the offence by the person charged and even if it could be said that the conduct of the NCA with respect to Liu and Huang was itself unlawful or permitted illegality on their parts (which is not a question we need to resolve) it could not be said that any illegality on their part induced the applicant to commit any offence. However, even assuming otherwise, the involvement of Liu and Huang was not such as to justify the exclusion of evidence against the applicant by reference to the Ridgeway discretion.
The involvement of Liu and Huang provided an appearance of genuineness in the bribe offer, although they never met the applicant[93]. Whilst it may be considered unfortunate that they were involved, at all, they were first introduced into events by Cheung and since it was necessary for the applicant to believe that actual over-stayers were involved, it was a legitimate investigative technique for the NCA to permit them to be used, and deceived, in the manner adopted by Cheung (whose conduct was under constant monitoring by his NCA controllers). In all the circumstances, even assuming this argument had been addressed to the judge it would have been open to him to conclude, as we do, that the balancing of the public policy considerations discussed in Ridgeway would not lead to the exclusion of evidence against the applicant on this count.
[93]Huang spoke to the applicant by telephone on one occasion, with Cheung acting as interpreter.
As to count 6, it was submitted that the illegal act of Cheung in proposing to the applicant that at a time in the future they require the payment of bribes from those seeking assistance on immigration matters constituted an essential ingredient of the offence committed by the applicant. The essential ingredient was said to be the agreement of Cheung to that future course of conduct. Thus, it was said, for the applicant to “agree to ask for property for himself”, as count 6 alleged, Cheung had to be party to that agreement. (Alternatively, once again, it was argued that Cheung had to share the applicant's “understanding”. We have already dealt with, and rejected, that latter proposition and take the matter no further.)
Cheung’s proposing to the applicant, and the applicant agreeing, that the applicant would ask for payment of money in return for his acting corruptly in future could not constitute an offence by Cheung under s.73A(1). That sub-section creates an offence only for a Member of Parliament. The conduct, arguably, is also not an offence within the terms of s.73A(2). In particular, Cheung was not offering to confer property or a benefit to the applicant but was encouraging the applicant to agree to seek such a benefit from others. However, even if that conduct of Cheung’s was an offence under sub-section (2) , it did not constitute a principal offence to which the charged offence is ancillary.
Furthermore, if Cheung’s conduct was an offence under sub-section (2) then it was so by virtue of Cheung’s giving or conferring or promising or offering to give or confer property or benefit to the applicant. The essential ingredient of the offence under sub-section (1) is that the applicant agreed to ask for property or benefit. Whilst evidence that Cheung had proposed such a course of conduct might provide some proof that the applicant agreed to ask for bribes, and might itself constitute an offence under sub-section (2), the proposing of such a scheme by Cheung is not an essential ingredient of the offence under sub-section (1).
As we elsewhere discuss, sub-section (1) focuses solely on the understanding and intentions of the Member, and the offence would be proved even if the Member agreed to act corruptly at the suggestion or request of a person pretending that he was in agreement for the purpose of exposing the corruption of the Member. It was not necessary to prove that Cheung genuinely agreed to the corrupt course to which the applicant gave his assent. Accordingly, the unlawful conduct of Cheung, even if it amounted to an agreement that the applicant would ask for bribes, was not capable, on that basis, of constituting an essential element of the applicant’s offence under count 6, and the discretion under Ridgeway was not enlivened on that account.
None of these grounds concerning counts 5 and 6 were made out.
Conclusions
It follows from what we have said that the only grounds of the conviction application which succeed are grounds 9 and 17 which relate to the conspiracy charged in count 2. The conviction on that count cannot, in our view, be saved by the proviso. For the reasons given, the conviction and the sentence imposed on that count should be set aside; and we order that there should be a re-trial on that count. Because the sentence imposed upon that count was the dominant influence in the total effective sentence imposed by the trial judge, the sentencing discretion has been re-opened. So far as relevant, s.569(1) of the Crimes Act 1958 provides:
“If it appears to the Court of Appeal that an appellant, though not properly convicted on some count … or part of the indictment … has been properly convicted on some other count[s] … the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count[s] … on which the Court considers that the appellant has been properly convicted.”[94]
[94]The scope of this Court’s powers under this sub-section was considered by the High Court in McL. v. The Queen (2000) 203 C.L.R. 452. The High Court considered that the construction given to the sub-section by this Court in R. v. McL. [1999] 1 V.R. 746 was correct.
Although the applicant sought leave to appeal against the sentences imposed by the judge, and his counsel have addressed argument to this Court in respect of those sentences, counsel nevertheless sought leave to address further argument to the Court, in relation to events which have befallen the applicant since sentence was imposed, in the event that the sentencing discretion was re-opened, and the Court’s powers to pass sentence in accordance with s.569(1) of the Crimes Act were enlivened. Such leave, we think, should be granted and we will postpone our consideration of the sentence application until the applicant, through his counsel, has had the opportunity to put before the Court such further material – relevant to the matters to which we have referred – as he desires.
There is one further matter which we desire to mention. Following the hearing of the appeal and the Court’s pronouncement that it would reserve its decision, a parcel of further submissions comprising some 70 pages – unsigned and unattributed to any person – was posted to the chambers of the President. We have had no regard to these submissions, the provenance of which is completely unknown to us. These submissions should not have been forwarded to the Court without leave. This Court has, as recently as 15 May 2003, explained that:
“Where argument has been presented to the Court by counsel on behalf of a party to an appeal, that will, other than in exceptional circumstances, put an end to that party’s rights to present argument to the Court.”[95]
[95]R. v. Zhan Yu Zhong [2003] VSCA 56, 15 May 2003, at [2]-[4] per Winneke, P.
The hearing of an appeal is the time to present argument and, after such hearing, no further argument will be received without the leave of the Court. If it were otherwise the business of the Court would be interminably delayed. Even more recently, McHugh J. in Eastman v. Director of Public Prosecutions of the Australian Capital Territory[96] said, in relation to submissions which were known to have come from the appellant himself[97]:
[96][2003] HCA 28 (28 May 2003).
[97]At [29].
“Parties to matters before the Court need to understand that, once a hearing has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. … But a party has no legal right to put submissions to
the Court after the hearing.”
His Honour was, of course, referring to the practice in the High Court. Nevertheless, the same practice is followed in this Court and, as the Court pointed out in Zhong[98], is implicit in the Crimes Act 1958 (s.572) and the Supreme Court (Criminal Procedure) Rules 1998.
[98]Supra.
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