R v Ung

[2000] NSWCCA 195

Reported Decision: 112 A Crim R 344

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Heeng UNG [2000] NSWCCA 195
FILE NUMBER(S):	CCA 60461/98
HEARING DATE(S):	18/02/2000
JUDGMENT DATE:	29 May 2000
PARTIES :	Regina v Heeng UNG
JUDGMENT OF:	Ireland J at 1; Hulme J at 2-5; Smart AJ at 6-72

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0901
LOWER COURT JUDICIAL OFFICER :	Solomon DCJ

COUNSEL :	G.P. Craddock (on conviction only) - Appellant In person (sentence) R.F. Sutherland - Crown
SOLICITORS:	Legal Aid Commission of New South Wales - Appellant Commonwealth D P P - Crown
CATCHWORDS:	Criminal Law - Admissibility of evidence of knowledge of co-offender and offender - statements made out of Court - whether hearsay - purpose for which evidence admitted - circumstantial evidence directions - directions as to use of co-offender's evidence - no request for warning - sentence not excessive.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Walton v The Queen (1988-1989) 166 CLR 283 R v Chin (1985) 69 ALR 1 Lee v The Queen (1998-1999) 195 CLR 594 R v Sandford (1994) 72 ACrimR 160 El Karhani (1991) 51 ACrimR 123 Lee Vanit v R (1997) 190 CLR 378 R v Olbrich (1999) 73 ALJR 1550
DECISION:	Appeal against conviction dismissed.; Leave to appeal against sentence granted.; Appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

60461/98
IRELAND J HULME J SMART AJ

Monday, 29 May, 2000

REGINA v Heeng UNG

JUDGMENT

1 IRELAND J: I agree with Smart AJ and with his Honour’s reasons. 2 HULME J: I agree with the orders proposed by Smart AJ and, subject to one matter, with his Honour’s Reasons. The one matter to which I refer is his Honour’s statement that the sentence imposed was well within the permissible range. 3 The Customs Act provides that the maximum penalty for being knowingly concerned with the importation into Australia of between 2gms and 1.5kgs of heroin is imprisonment for 25 years. (Having regard to the absence of remissions in the case of sentences imposed in New South Wales, that period must be understood as reduced by about one-third - see Crimes Act 1914 (Cth) s 16G and El Karhani (1991) 51 ACrimR 123). 4 The maximum penalty prescribed by the Customs Act where the quantity is 1.5kgs or more is life imprisonment - a period which requires no such adjustment - see Lee Vanit v R (1997) 190 CLR 378. 5 Having regard to the quantity of heroin involved, 54.5kgs (pure) - some 36 times the minimum commercial quantity - and its value - $14.5M wholesale and of the order of $110M street value - and notwithstanding that the Appellant may not have been a principal in the importation - as to which see R v Olbrich (1999) 73 ALJR 1550 - there is much to be said for the view that the sentence imposed was below the appropriate range. However, there was no appeal by the Crown and no final conclusion on that topic is required. 6 SMART AJ: Heeng Ung appeals to this Court against his conviction of being knowingly concerned in the importation into Australia of not less than the commercial quantity of heroin. He was sentenced to 16½ years imprisonment with a non-parole period of 11 years. The grounds upon which the conviction was challenged were that evidence was wrongly admitted and that, even if it was correctly admitted, the jury should have been warned about the risks of acting upon it. No objection was taken to the admissibility of the evidence at the trial and no warning was sought. 7 At the trial, there was no issue that there had been an importation of heroin and that the appellant was involved in that importation. There was one issue, namely, whether the appellant knew that heroin was being imported. The Crown case was that the appellant was closely associated with Mrs Vo in the importation, that she knew that heroin was being imported and that, by virtue of his involvement with her in the importation, his conduct and the surrounding circumstances, he must have known that heroin was being imported. The Crown case was based on circumstantial evidence. 8 On 28 February 1997, Mrs Vo caused her bank to remit $28,252 to the Bank of China in China for the credit of a Chinese supplier of canned pineapple. The Combined Transport Bill of Lading was issued on 9 April 1997. The consignee was Mrs Vo’s company and the address shown was at Warwick Farm. 9 On 21 April 1997, Mrs Vo entered into a lease for twelve months of shop premises at 139 Hollywood Drive, Lansvale. These were in a small neighbourhood shopping centre. The premises were to be used only as “storage and warehouse”. 10 On 23 April 1997, the vessel “Sha Ha” arrived at Port Botany from China and unloaded a container of ostensibly 800 cardboard boxes of tins of canned pineapple. On 28 April 1997, by a process of weighing and X-ray, it was discovered that seven boxes each weighed less than the other boxes and were sealed with a different coloured packing tape. The tins in these boxes contained heroin. That was removed by the police. The heroin weighed 78.073kg in bulk and about 54.504kg in its pure form. Its wholesale value in Australia was $14.5million and its street value approached $110million. The boxes were repacked with substitute material and small samples of heroin. The delivery of the container was permitted to proceed as if the heroin had not been detected. 11 On 30 April 1997, the appellant and Mrs Vo met with Mr Norman Daniels, the marketing manager of the Customs Agent retained by Mrs Vo to have the goods cleared through Customs and delivered. At this meeting, the appellant handed over four money orders totalling $3,736.15 to Mr Daniels in payment of a past debt of Mrs Vo’s company and the moneys due to the agent for handling the subject importation. The appellant changed the date of the delivery from Thursday 1 May to Friday 2 May and told Mr Daniels that the container was now to be delivered to 139 Hollywood Drive, Lansvale. Mr Daniels discussed the transport arrangements with the appellant as he seemed to be looking after these. In response to Mr Daniels’ queries, the appellant said that they would have enough labour to unpack the container, even if the container was delayed for an hour or so. The container was to be delivered between 11.00am and noon on Friday. The appellant gave Mr Daniels his mobile telephone number so the latter could contact him when the container was leaving the wharf. The appellant stated that one hour’s notice would be sufficient to get the labour in. The appellant left virtually immediately saying that he was in a hurry. Mrs Vo and Mr Daniels conversed further for a relatively short period and confirmed the earlier arrangement. 12 On 2 May 1997, the delivery of the container of canned pineapple was delayed. The truck carrying it arrived outside the Lansvale shop at about 2.40pm. Mrs Vo arrived at about 2.50pm. The truck was driven to the parking lot behind the shop and at about 3.05pm the truck driver and his assistant (Federal Agent Smith) started unloading the boxes. During the afternoon a number of Asian males arrived and assisted with the unloading. The boxes were carried into the shop and stacked under the directions of Mrs Vo in a way which permitted each box to be seen. 13 According to Federal Agent Smith, the appellant arrived at the Lansvale shop at about 3.30pm and helped with the unloading for about one hour. The videotape records the appellant first appearing at 3.31pm. In cross-examination, it was suggested that the appellant stayed for 45-50 minutes. While at the area of the shop, the appellant helped unload the boxes spending much of his time in and near the container and the back of the truck. The unloading was observed by Federal Police agents and recorded by videotape by police from nearby, by a listening device in one of the boxes and by a camera/microphone under the truck. During its case in chief, the Crown tendered an edited videotape which was admitted. It showed the presence of Mrs Vo and the appellant. 14 During the unloading, Mrs Vo approached the back of the truck and the open end of the container. The appellant was inside the container moving boxes. She called out, “Too many heh”, looked around (seemingly to check that no one else was around and could hear) and said, “Hey, Hey, you don’t know which one(s)?” It was open to the jury to find that the latter words were said in a lowered voice. The appellant’s reply cannot be discerned. On the Crown case, the words meant, “you don’t know which one(s) (boxes) contain the heroin?” It was the reception of these words into evidence and their use which is the basis of the challenge to the verdict. That evidence emerged in unusual circumstances as a result of calls for tapes during Federal Agent Smith’s cross-examination. 15 Federal Agent Smith asserted that he saw the appellant and Mrs Vo at the shop area after 5.00pm that day conversing. This evidence was the subject of a substantial challenge as were other aspects of his evidence. 16 On 3 May 1997, the appellant was at the shop from 11.36am to 12.07pm. Mrs Vo was present but no one else attended. The Crown alleged that the appellant was seen to wait and watch outside the rear door of the premises. The Crown contended that this indicated an expectation on his part that the boxes containing the heroin were to be collected that day. 17 On 4 May 1997 at 11.50am, two men named Tung and Leung collected the seven boxes containing the substituted material and small amounts of heroin. Mrs Vo was present but the appellant was not. He had gone fishing. Tung and Leung took the boxes in a car to a unit at Lakemba. Later that day, the police arrested both men outside the unit. The boxes and tins which were inside the unit had been opened. 18 Between 29 April and 4 May 1997, there were 29 mobile telephone calls between the appellant and Mrs Vo. 19 In the conduct of the defence case, a major attack was launched on the veracity of Federal Agent Smith. His evidence linked Mrs Vo and the appellant, their alleged conversations helping the Crown to establish knowledge of the heroin on the appellant’s part. 20 Counsel for the appellant cross-examined Officer Coldwell, who was in charge of the case, extensively about the edited videotape and the police investigation into the appellant and other persons associated with the importation. It was elicited that, although there was no soundtrack on the edited videotape, there were soundtracks “by way of one or more listening devices installed by the police”. Mr Coldwell was cross-examined about his knowledge derived from listening to the various tapes. He agreed that there were conversations recorded from time to time between the appellant and Mrs Vo and that these were in English. 21 Federal Agent Smith gave evidence in chief that he had observed the appellant and Mrs Vo speaking on a number of occasions during the afternoon on 2 May 1997. He thought that was inside the premises. He also asserted that sometime between 5.15pm and 6.00pm he saw the appellant talking to Mrs Vo inside the shop. Federal Agent Smith said that at about 5.00pm and shortly thereafter, he saw a number of boxes with clear tape being carried into the shop. Such boxes contained tins with a little heroin and the substitute material. Federal Agent Smith was cross-examined to the effect that the appellant last appeared on the video at 4.18pm and that he (Smith) had not seen the appellant after that time and that he had not seen the appellant after it became dark about 5.00pm. Federal Agent Smith adhered to what he had earlier said but the cross-examination had some bite. There was no mention of this last conversation in Federal Agent Smith’s statement. Federal Agent Smith gave various explanations, none of which were convincing. He claimed that this conversation between the appellant and Mrs Vo was in a foreign language which he was unable to identify. This was challenged. Mrs Vo was Vietnamese and the appellant was Cambodian. All other conversations appeared to have been in English as the appellant asserted. Federal Agent Smith acknowledged the importance of the evidence. He denied that he was lying and that he had fabricated this piece of evidence. 22 During Federal Agent Smith’s cross-examination on 22 July 1998 and shortly after the evidence as to the appellant and Mrs Vo speaking in a foreign language, counsel for the appellant called for the “original tape (videotape) including the soundtrack of the entire surveillance in the afternoon of the premises” (Lansvale shop). The morning adjournment was taken. It turned into a long adjournment. Upon resumption, the judge told the jury that it had been agreed that the tape be shown and that the sound was not clear as it came from three microphones secreted in different places. He explained that close attention would be required to make out what was being said. 23 The videotape was played and Federal Agent Smith commented upon what was happening and was cross-examined with attention being paid to aspects of his evidence as to the appellant’s activities which were not captured on the videotape. It appeared that Mrs Vo spoke to some of the manual workers recruited to unload the container in a foreign language (Vietnamese). 24 During the cross-examination, it was suggested that Federal Agent Smith might have confused the appellant with another Asian male who spoke to Mrs Vo. To meet this suggestion, the Crown Prosecutor sought to tender another tape. As counsel for the appellant had not seen it, the trial was adjourned to give him the opportunity to do so. Apparently, none of the counsel had seen or heard it previously. 25 On resumption of the hearing on 23 July 1998, the jury asked to hear the individual recordings for each listening device. The Crown Prosecutor stated that he was instructed that there was no material on the recorder mounted under the truck which was intelligible or useful. The judge stated that he would give both counsel the opportunity to hear it and see a further videotape which had been produced but which was stated to have deficiencies. The Court adjourned early for that purpose. 26 On resumption on 24 July 1998, counsel for the appellant stated that he had difficulty listening to the tape and requested more time. That was granted. Upon the hearing continuing, the Crown Prosecutor applied to revoke the appellant’s bail based on the contents of the videotape produced on 23 July 1998. The tape was played. It contained the words “Too many, hey” and “Hey, Hey you don’t know which one, hey?” That evidence had not previously been led. During submissions, the Crown Prosecutor conceded that it was not a strong circumstantial case until the emergence of this piece of evidence (T.201). However, from this piece of evidence, “the jury could infer knowledge”. Counsel for the defendant submitted that it was “still an incredibly weak [Crown] case”. The judge ruled, “The strength of the Crown case would now appear to be strong” and “… in the light of the evidence which is contained within [the tape] … bail should be revoked”. 27 The afternoon of 24 July 1998 was devoted to the appellant and his counsel watching films which the Crown intended to show and to the appellant giving instructions to his counsel in the absence of the judge and the prosecution. 28 On Monday 27 July 1998, the tape containing the words quoted was played in the presence of the jury and admitted into evidence without objection. On the bail application, the Crown Prosecutor had also said “That was a very significant private communication between those two people [the appellant and Mrs Vo], a very substantial strengthening of the Crown case, that Mr Ung had the same knowledge that Mrs Vo had, and that they were talking in a clandestine way about what boxes were of interest”. Counsel for the appellant could not but realise the importance of the words quoted and the turn for the worse which the trial was taking from the appellant’s point of view. Counsel who was experienced in the practice of the criminal law would have wished to exclude that evidence if there was a legitimate ground of objection available. He had the weekend to think about the matter. 29 In summing up, the judge said:

“… there is no dispute that the heroin was imported into Australia. What is in dispute is whether the Crown has satisfied you beyond reasonable doubt that the accused had knowledge, that is that he knew that the container of pineapples contained heroin …” (SU.6 of 3/8/98)

30 The judge explained that the Crown case was a circumstantial case and he set out the circumstances upon which the Crown relied. The judge directed the jury that they must be satisfied beyond reasonable doubt that Mrs Vo knew that the container of pineapples contained heroin. If they were not so satisfied, they were directed to find the appellant not guilty. This was consistent with the way in which the Crown presented its case. 31 In his evidence the appellant asserted that he did not know that there were drugs in the goods in the container. He said that Mr Tan Tu for whom he had done some car repairs had told him in early 1997 that a container was arriving from overseas. Mr Tan Tu told the appellant that he was going overseas and asked him to give Mrs Vo (his wife) a hand if he was needed. The appellant, a panel beater, knew her, agreed and wanted $100 per day. 32 On 29 April 1997 Mrs Vo telephoned him. There is a record of such a call being made. Mrs Vo asked him to come down and meet her at a post office where she was buying money orders for delivery of goods. He could not do so immediately but eventually went to her home. She asked him to take the money orders to a meeting. She was worried that her bag might be snatched. He was given four money orders to take to the meeting at McDonalds, Fairfield and hand them to the person whom they were going to meet. The appellant said that he understood that the container contained foodstuffs. Mrs Vo gave him a piece of paper containing an address to which the foodstuffs were to be delivered. This was the address he gave to Mr Daniels. As a forklift could not be used he suggested the Friday delivery date so he could procure people to unload the container. The appellant said that after this Mrs Vo told him that he was finished for the day and could go home. 33 There were several telephone conversations between the appellant and Mrs Vo on 1 and 2 May 1997. About 2.51 pm on 2 May 1997 she telephoned him and asked if he was coming over. The appellant declined as he was busy with work and thought that she had everything organised. He agreed to go over to the Hollywood Drive premises and give her some help for a short period until more people came. He did so and told her on his arrival that he was unable to stay too long. He had to complete work on a car and see the owner of a boat about it. He knew but two of the men who were doing the unloading. 34 As to the conversation “too many you don’t know which one” he said a number of things including that he did not respond as he did not understand what she meant and that he was busy unloading. He heard Mrs Vo talk in a foreign language about 4.08 pm. He left the truck at 4.09pm and spent 7 or 8 minutes in the shop. He spoke with Mrs Vo. He went home, collected his girlfriend and went to inspect a boat. 35 On 3 May 1997 he wanted money and telephoned Mrs Vo to see if she had any work for him. He was at the shop on that day for about 40 minutes. Mrs Vo told him she was expecting friends and asked if he could help carry some boxes. He was not waiting for anyone to come. Later that day he telephoned Mrs Vo and told her that he was going fishing the following day, (Sunday 4 May 1997). He telephoned on his return to see if she needed a hand. 36 The appellant said that he had no suspicion that drugs were in the container and no suspicion that Tan and Vo were involved in drug dealing. He had no idea who the men were who took the drugs on 4 May 1997. In his evidence the appellant sought to explain away the suspicious circumstances. 37 Appeal Ground 1

“His Honour erred in admitting evidence as to the state of knowledge of Mrs Vo which was irrelevant to the guilt of the appellant: namely, (1) that Mrs Vo directed the unloading of the shipment in such a way as to facilitate removal of the boxes containing heroin; (2) that Mrs Vo shook one of the tins; (3) that Mrs Vo went to the shop on 3 May 1997; (4) that on 4 May 1997, Mrs Vo met two men who removed boxes containing heroin; and (5) Mrs Vo said during the unloading, “you don’t know which one” .”

38 The Crown alleged that Mrs Vo and the appellant were engaged in a joint criminal enterprise. Previously, there had been a joint trial. Mrs Vo had given evidence that the appellant was the prime mover and that she was innocent. Her evidence led to the joint trial being stopped and separate trials being ordered. 39 In his written and oral submissions, counsel for the appellant only addressed point (5) of this ground, submitting that the evidence of the recording of Mrs Vo saying to the appellant, “Too many, hey” and “Hey, hey, you don’t know which one, hey” was inadmissible. 40 The appellant’s attack was twofold. Firstly, the evidence was hearsay and was not admissible as it did not fall within any of the exceptions. Secondly, the Evidence Act 1995 constituted a code and the evidence was not admissible by virtue of s 59 of the Evidence Act 1995. The Crown contended that the evidence was not hearsay, that even if it was, it fell within an exception to the hearsay rule and that the Evidence Act did not constitute a code. The Crown submitted that as the evidence was not hearsay s59 of the Evidence Act did not arise. 41 Many out of court statements are admissible and not hearsay. In Walton v The Queen 166 CLR 283 at 288, Mason CJ said:

“The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker’s knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue: Reg v Blastland [1986] AC 41. Similarly, a person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish LJ remarked in Sugden v Lord St Leonards (1876) 1 PD 154 at p 251:
‘[W]herever it is material to prove the state of a person’s mind, or what was passing in it, and what were his intentions, there you may prove what he said … .’
The point is that the making of the statement is itself evidence of the author’s intentions at the time the statement was made. Evidence of the making of the statement may be given by the author himself or, in the case of an oral statement, by any person who heard it made.”

At p 289, the Chief Justice continued:
“Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’s testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule … .”

The Crown tendered the statements not on the ground that the applicant adopted them or acquiesced in them, but on the footing that they tended to establish a fact relevant to a fact in issue and also a fact in issue, namely, the appellant’s knowledge.

42 In their joint judgment, Wilson, Dawson and Toohey JJ, at p 302, acknowledged that, “it may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay”, but that, “in other cases a person’s statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them”. They continued: “To that extent an element of hearsay may be said to be present … . But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted.” At p 304, the Justices continued:

“However, as we have said, not all conduct involving an assertion, expressed or implied, is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.
An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay … .”

43 The knowledge of Mrs Vo was a fact relevant to a fact in issue. It is true that it was the knowledge of the appellant which was in issue. However, the knowledge of Mrs Vo was relevant to the joint enterprise and was a stepping stone in proving the appellant’s knowledge. It could be argued that, by her statement, Mrs Vo was confirming to the appellant that there was heroin in some of the boxes of the shipment and that he therefore had knowledge. 44 The Crown also relied on R v Chin (1985) 69 ALR 1 at 6, 14 and 15, but it is not necessary to refer to that decision in greater detail. It pre-dates and conforms with Walton. 45 The statement of Mrs Vo should not be regarded as hearsay. Even if it be so regarded, it is still admissible on the alternate basis propounded by Wilson, Dawson and Toohey JJ, at p 302, previously mentioned. The statement in the present case was made in the final stages of the importation while the important task of unloading was taking place. It was part of the res gestae. 46 Counsel for the appellant submitted that since the passing of the Evidence Act 1995, it was impermissible to look at Walton to determine what was hearsay or to divine the scope of any exceptions to the hearsay rule. Such exceptions had to be found in the Evidence Act 1995. On this point that Act was a code. 47 Section 9 of the Act provides that the Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies except so far as the Act provides otherwise expressly or by necessary intendment. 48 Section 59 provides:

“ (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation
(2) Such a fact is in this Part referred to as an asserted fact. ”

49 By virtue of the Dictionary to the Act “previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”. Representation includes an express or implied representation (whether oral or in writing) or a representation to be inferred from conduct. 50 Section 60 provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. In Lee v The Queen (1998-1999) 195 CLR 594 at 599 the High Court pointed out that the starting point was the general exclusionary rule created by s59 (the hearsay rule). At 600 the Court said:

“ The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of court (the previous representation). What is it that the representation is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it .”

51 In the present case the representation was led to prove that the appellant knew that some of the canned tins of pineapple contained heroin. It was not led to prove that some tins did contain heroin although that was the fact which Mrs Vo intended to assert. At 601 the Court said:

“… S.60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert.”

52 That is not the present case. 53 In my opinion, the challenged evidence was not hearsay: Chin, supra 5 (per Gibbs CJ and Wilson J) and Walton at 288 (per Mason CJ). Even if I were incorrect in that opinion and the challenged evidence were hearsay the exception contained in s60 of the Act would apply. The Evidence Act 1995 does not amount to a code which would render inadmissible the challenged evidence. The challenged evidence was correctly admitted. 54 To overcome the difficulty that no objection was taken at the trial to the admissibility of the challenged evidence the appellant relied on an affidavit from counsel who appeared for him at the trial stating, amongst other things,:

“8. I did not have an adequate opportunity to consider the question of the admissibility of the material or the use to which it would eventually come to be put by the Crown.
9. I did not make a considered decision to acquiesce in the tender of the material ?”

55 I am unable to agree that counsel did not have an adequate opportunity to consider the admissibility of the material. From the time of the application to revoke bail on 24 July 1998 (if not before) counsel could not but appreciate the significance of the challenged evidence. He had from lunchtime Friday (24 July) to Monday (27 July) to consider the admissibility of what was obviously important evidence and the course he would take. The explanations of the experienced counsel who appeared for the appellant at the trial do not overcome the point that the challenged evidence was admitted without objection. 56 The Crown relied on an alternative submission, namely, that the challenged evidence was admissible to establish the knowledge of Mrs Vo of the existence of the heroin in some of the tins of pineapple. Her knowledge was an important part of the Crown case which alleged that she and the appellant were engaged in a common enterprise. The evidence of their close association and joint activity in importing the container with the tins of pineapple, some of which contained heroin, was strong. Her knowledge and involvement was an important part of the Crown case against the appellant. The evidence was also admissible on this basis. 57 Appeal ground 1 fails. 58 Appeal ground 2 reads:

“2. His Honour erred in his summing up …. in relation to circumstantial evidence.”

59 That ground was advanced upon the basis that the challenged evidence was admissible. It was submitted that as the Crown contended that the appellant must have known of the presence of the heroin because Mrs Vo did and had conducted herself in particular way there was a palpable risk of unfair prejudice to the appellant. It was not for the appellant to defend Mrs Vo in order to defend himself. This was not suggested by the Crown or in the summing up. The appellant further submitted that it was not for him to place a different complexion upon the statement made by her and not responded to by him. The appellant complained that the Crown had not called Mrs Vo. He submitted that it was incumbent upon the judge to warn the jury in strong terms as to the risks involved in endeavouring to determine, absent evidence from the representor (Mrs Vo), what was in the representor’s contemplation when a particular representation was made and that the appellant was at a distinct disadvantage in his defence because the Crown had chosen not to call Mrs Vo. 60 The submissions as to the non-calling of Mrs Vo were a little precious. There had been a joint trial of her and the appellant but the judge severed the indictment and ordered separate trials when it became apparent firstly that she was going to say that he directed the operation and that she acted at his behest and, secondly, counsel for Mr Ung was proposing to cross-examine her on certain statements which she had made to the police. The judge had ruled that these were inadmissible. 61 Theoretically, Mrs Vo could have been called by the Crown or the accused but neither party would have wished to call her. In Sandford (1994) 72 A Crim R 160 at 186 Hunt CJ at CL observed “The Crown may always call a co-accused who has not been dealt with but it cannot generally be criticised for not doing so.” 62 There was no dispute about what was said by Mrs Vo. There was no request by the appellant for a warning. 63 Absent a request for a warning this was not a case where a warning was required. Even if a request had been made I doubt if a warning was required. Evidence had been led of the close association between the appellant and Mrs Vo. It included their joint attendance at the site on the day the tins of pineapple were delivered and their conversation, the attendance at the site on the following day and their telephone calls. As earlier mentioned, the evidence was not hearsay and there was no dispute about what Mrs Vo had said. It is hard to see the basis on which it could be said that the evidence was unreliable. 64 As argument proceeded counsel for the appellant developed a further line of attack. He submitted that the judge should have given strong and explicit directions as to how the remarks by Mrs Vo should be used, the evidence generally as to her role and how her knowledge impacted or could have impacted upon the appellant. Otherwise there was a great risk that the evidence might be mis-used by the jury. Such directions were not sought at the trial. 65 As mentioned the only live issue at the trial was the appellant’s knowledge. Because of the way the Crown case was presented a subsidiary and necessary issue was the proof of Mrs Vo’s knowledge. The importation of heroin and the involvement of the appellant were not in issue. There was ample evidence of these matters. The evidence went to knowledge, being the matter in issue. This is thus not a case where the jury could have misused the evidence. The judge on a number of occasions reminded the jury that the issue was whether the appellant knew that there were drugs in the goods in the container. By directing the jury that they had to be satisfied beyond reasonable doubt that Mrs Vo knew there were drugs in the container the judge imposed an additional matter of proof on the Crown. On the Crown case there was a joint enterprise involving Mrs Vo and the appellant. The judge’s directions as to circumstantial evidence were sufficient. Indeed, they were full and related to the evidence. The judge did not err. 66 Appeal Ground 3 is that that the sentence was too severe and harsh. While the appellant received legal aid and was represented by counsel as to grounds 1 and 2, he was not granted legal aid as to ground 3 and appeared in person. He has made written submissions. He asserts that he had neither a role in the importation nor any knowledge of any drugs in the container or at all. He had done other people’s dirty work without any knowledge of illegality. He submitted that he could not look into Mrs Vo’s mind and that so far as he was aware she was a trusted and honest businesswoman. He submitted that the sentence was too severe for the innocent role he played. 67 These submissions seemed to be directed primarily to the appellant’s innocence or lack of proven guilt. There was ample material from which the jury could reasonably and sensibly conclude beyond reasonable doubt that the appellant was guilty. 68 The sentence of 16 ½ years with a non parole period of 11 years is a severe one but the offence was very serious. The amount of pure heroin was about 54.504 kilograms. Its estimated wholesale value was $14.586 million and its estimated street value was $109.2 million. The judge was satisfied that the appellant was not a principal and that his involvement was less than that of the co-offender, His role was to facilitate the transfer of the heroin from the wharves at Port Botany to the premises where the heroin was unpacked and uplifted. The judge found that the appellant played a significant role in the overall operation. The materials justified that finding. The judge also found that the appellant knew that a large quantity of heroin of approximately the amount seized was involved. 69 The judge took into account the appellant’s offer to give evidence against Mrs Vo but noted that the Crown did not propose to call him and that he was a compellable witness. 70 The appellant was born in 1972 in Cambodia and came to Australia in 1980. His criminal record comprised convictions for traffic offences and dishonesty offences at the lower end of the scale. He had no previous convictions for drug offences. He showed no contrition or remorse. 71 The judge started with a head sentence of 25 years which he reduced to 16 ½ years because New South Wales does not have remissions. The judge was much influenced by the size of the importation and the appellant’s knowledge that it was a large importation. 72 The sentence imposed by the judge was a heavy one but it was well within the permissible range. The appellant’s criminality was of a high order. No error of fact or law is disclosed. I propose the following orders:

1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted. Appeal against sentence dismissed.