R v Van Tran
[2003] QCA 85
•7 March 2003
SUPREME COURT OF QUEENSLAND
CITATION:
R v Van Tran [2003] QCA 85
PARTIES:
R
v
VAN TRAN, Chieu
(appellant)FILE NO/S:
CA No 333 of 2002
SC No 278 of 2002DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
7 March 2003
DELIVERED AT:
Brisbane
HEARING DATE:
5 February 2003
JUDGES:
McMurdo P, Jerrard JA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the orders madeORDER:
Appeal against conviction and application for leave to appeal against sentence dismissed
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – TRAFFICKING – WHAT CONSTITUTES – where appellant convicted of being knowingly concerned in the importation of heroin into Australia – s 233B Customs Act 1901 (Cth) – where strong circumstantial case against appellant – where appellant submits that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the heroin concerned was not less than the trafficable quantity applicable to heroin – whether conviction unsafe and unsatisfactory
APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL – GENERALLY – where application to lead evidence on appeal – where evidence most likely available to appellant’s legal representatives at trial – where appellant sought to lead evidence to show that heroin linked to the appellant could have come from other sources – where court declined to receive further evidence – whether jury would have acquitted appellant had the evidence been before it at trial
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where appellant’s counsel conceded on appeal that if the conviction ground of appeal failed, the appellant could not complain about the sentence imposed
Customs Act 1901 (Cth), s 233B
Gallagher v The Queen (1986) 160 CLR 392, considered
Jones v R (1997) 191 CLR 439, cited
M v R (1994) 181 CLR 487, cited
Mickelburg v The Queen (1989) 167 CLR 273, consideredCOUNSEL:
P J Feeney for the appellant
G R Rice for the respondentSOLICITORS:
Lewis Lawyers for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent
McMURDO P: I agree with the reasons for judgment of Jerrard JA and with the orders proposed.
JERRARD JA: On 30 September 2002 Chieu Van Tran was convicted by a jury of the offence of being knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act applied, namely narcotic goods consisting of a quantity of heroin, being not less than the trafficable quantity applicable to that narcotic substance. His appeal against that conviction on the ground that it is “unsafe and unsatisfactory”[1] is focused on the specific but important argument that upon the whole of the evidence it was not reasonably open to the jury to be satisfied beyond reasonable doubt[2] that the heroin, in the importation of which into Australia the appellant was knowingly concerned, was in fact not less than the trafficable quantity applicable namely two grams.
[1]An appeal so expressed should be understood as a plea pursuant to s 668E(1) of the Criminal Code that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. See MFA v R (2002) 193 ALR 184 at [25] & [46] – [58], and Gipp v R (1998) 194 CLR 106 at 147-50 [120] – [127].
[2]See M v R (1994) 181 CLR 487 and Jones v R (1997) 191 CLR 439. This ground of appeal requires a Court of Appeal to itself independently assess the evidence led, to determine whether upon the whole of the evidence it was open to the jury to be so satisfied.
The appellant’s counsel, Mr Feeney, frankly conceded in his written and oral submissions in the appeal that the evidence led at the trial was sufficient to establish beyond reasonable doubt that the appellant had conspired with one Chau Van Tran (“Chau”) to import heroin into Australia, and had attempted to import heroin into Australia. It was further conceded that there was a circumstantial case that the appellant’s efforts and actions had resulted in heroin being imported into Australia, and as a result of his being knowingly concerned with that importation. The issue on the appeal was whether the jury could safely conclude that that importation was of two grams, or more, of heroin. It was common ground that the prosecution was obliged to establish that at least two grams of pure heroin had been imported.
Sending the Letters
The prosecution led evidence which established that the appellant was in Kampuchea from 1 March to 5 March 2001, and in Vietnam from 5 March to 31 May 2001. He was arrested at the Brisbane Airport that same day on his return to Australia. While in Kampuchea he had posted or caused to be posted letters to various addresses in Brisbane, those addresses being collection points for Chau, who lived at 369 Watson Road, Acacia Ridge in Brisbane. A hand written list was found by police in the appellant’s wallet on 31 May 2001, and that list of nine separate addresses (AR 441) included the five addresses to which the eight letters shown to have gotten into Chau’s possession had been posted. The opinion evidence of hand writing experts established that Chau had written all but one of the addresses on that list, and that the other address was written by the appellant. The addresses to which those eight envelopes were posted appear at AR 240.
The named addressees are varieties of apparently Vietnamese names e.g. letters were posted to both “Bo Trau” and to “Tra Bo” at 36 Vied Road Pallara, to “Trau Bo” and “Tran Du” at 288 Mortimer Road Acacia Ridge, and to “Lo Bo” and “Khung Do” at 61 Kraft Road Pallara. (The hand written list of addresses found on the appellant contained only addresses, and no names of addressees). Chau’s address was on that list, as were those of his neighbours at 367 and 375 Watson Road, Acacia Ridge. The nominal addressee for 367 Watson Road, was “Dun Do”. The evidence did not reveal how Chau obtained possession of letters sent to addresses other than his own.
The appellant usually resides in Brisbane, and had travelled to Kampuchea via Bangkok on 1 March 2001. He had a mobile phone “Kent Five” and Chau had a mobile phone “Regent One”. The NCA were recording conversations on both telephones, and those conversations were translated by a Mrs Mackenzie. Her interpretation and transcriptions of those calls was not challenged on this appeal, and her evidence had been that she had listened to so many telephone conversations, particularly those of Chau, that his voice had become more familiar to her than her ex husband’s. It was not suggested on appeal that she was not equally capable of identifying the appellant’s voice, or had wrongly done so on any occasion. The quotations appearing hereafter repeat verbatim the spelling and grammatical structure of her transcriptions.
The Phone Calls
Chau received a call from the appellant on Saturday 3 March 2001, in which they discussed the price of a kilo of prawns in Kampuchea. The prosecution case is that that was a coded conversation for the price of an ounce of heroin. The appellant told Chau the price was $2.20 a kilo (the prosecution says this meant $2,200.00 per ounce), and that “I am on my way to pick it up”. He also advised Chau that “early Monday morning I will be doing that business” and that “after I am finished on Monday I will be going to Vietnam”, which business the prosecution said was that of posting envelopes containing heroin to the addresses on that list, and for collection by Chau.
The conversation intercepted that Saturday recorded the appellant telling Chau that “it probably takes four or five days on Monday”, said by the prosecution to mean the time within which the letters could be expected to arrive. Chau advised the appellant that “over here $9.50 for one kilo”, which the prosecution says was a description of the price, namely $9,500.00, for an ounce of heroin at that time in Australia. Evidence was called from an intelligence analyst within the National Crime Authority, apparently without objection, whose evidence was that since late December 2000 within the whole of Australia there had been a “chronic” heroin shortage, with heroin prices in Australia escalating significantly. That witness swore that during “this period and to the current day” the price of an ounce of heroin in Brisbane was $10,000.00 to $12,000.00, and that prior to the shortage the expected prices were about $4,000.00 to $5,000.00 per ounce. His evidence was also that prior to the shortage, heroin imported from South East Asia was usually at a purity of 50% to 70%, but that this had fallen away markedly with purities down as low as 10% to 15%. “This was reflected nationally”.[3]
[3]The evidence of the analyst Mr Adams appears at AR 37.
The appellant was recorded on 3 March 2001 advising that he was still in Kampuchea. On 5 March 2001 Chau received a phone call from the appellant who said that he was “already in Vietnam at the moment”, and that “they are all completed” and “should be arriving in about a week’s time”. He said there would be “11 pieces in total”, advising that “there will be one in some places and others will be two”. On 9 March 2001 Chau received another call from the appellant, and Chau told him that he had “not yet, have not seen them yet”. The appellant asked him to “please watch out for them today”, and “also tomorrow and Monday keep on watching out for more”.
On 13 March 2001 the appellant rang Chau and asked “have you received yet”? Chau said he had not, and the appellant observed that “today is the eighth day already”, and that “my friend said it would take from seven to ten days to get there”. In other conversations Chau said that “a soldier and I might go over also”, which the prosecution contend was a proposal that Chau himself and another person would visit Kampuchea and obtain heroin. Chau explained that “I am also waiting for it, mother fucker, because I am anxious to go too, but I have to try and wait until this one is finishes, you understand”. The appellant expressed agreement with that, remarking that “but you need to wait and collect that thing before you have the money to go”. Chau confirmed that view, saying “yes, of course, have to complete the whole thing before I could go”.
Some Letters Arrive
On 15 March 2001 Chau received a phone call from the appellant and advised that “yes, got it already, but there was only nine items”. The appellant said in response that there “must be 11 items all together”, and advised that “tomorrow you need to have another search. They should be somewhere around there, or they might have arrived late”. He also inquired “what is the price there now, is that still all right?”, and was advised by Chau that “it is only over nine or ten dollars”. The appellant suggested that “if you selling to individual, then it still is for a dollars, isn’t it?” and repeated that “if you are selling it individually, can you get one dollar for one point?” (the Crown case is that this was a description of receiving $1,000.00 for one gram).
The Youngsters
On 18 March Han Hung Dang (“Nhan”) was telephoned by Chau. Detective Senior Constable Tania Hare, who was involved in the investigation of the appellant’s dealings with heroin as well as those of the man Chau, gave evidence (AR 58) without objection that Nhan was a friend of Chau’s son Giang Tran, and Detective Hare said Giang was around 14 years of age. Her evidence was that Nhan was living with Chau because of problems Nhan was having in his own home. (The appeal record implies that Detective Hare, and other police, had been conducting surveillance of Chau and listening to his telephone conversations for some months). The prosecution case was that Chau used both his own son Giang and the youth Nhan to sell heroin in Brisbane for him.
Selling Heroin
In the telephone call made on 18 March 2001 Chau established where Nhan was, and asked “is there anyone wants any goods?” He was told “yes, there were the other day, but now they got them”. The prosecution case is that that was a guarded conversation about potential purchasers of heroin. In that conversation Nhan was asked “see if there are anyone, if anyone else still wants some, all right?”; he told Chau “yes, if there is anyone else wants, I will ring you, uncle”. He also said “I will go over soon, I will take a run over” and was told by Chau “yes, try to be speed up a bit because there is still another lot”. Nhan asked “what is the quality, any good?” and Chau said “yes it is delicious”. Chau also said “I think this one is the best quality goods around here”.
Later that same day 18 March 2001 the appellant rang Chau and asked “hey, have you checked carefully all those addresses yet?” Chau assured him he had, and in the course of an ensuing discussion about addresses Chau said “one from my own, one from the lady neighbour next door”; and reference was made to “at this Westerner’s place”, as well as reference by Chau to “369, 71, 371”. There was reference by the appellants to there being “two at Quan Map’s house”, to which Chau said, “oh fuck, why didn’t you tell me? I have to take a run over there immediately”. In other conversation the appellant asked, “how is thing lately? Is everything safe there or was anything happened?”; and was advised “There are plenty over here now mother fucker, it is getting cheaper again, but I have not been able to get it running, it is just running steady. Got those youngsters to go on those bits and pieces but the others have not been moved yet”. The prosecution case was that that conversation showed the appellant and Chau discussing the addresses to which the envelopes from Kampuchea had been posted, and the fact of Chau using “those youngsters” (Nhan and Giang”) to sell heroin. The appellant did not ask who the youngsters were, although he frequently enough got Chau to repeat or explain matters he did not understand.
A little later that same day the appellant rang Chau again, and they agreed that an address they had described in their conversations earlier that day as being 324 Archerfield Road was actually 432. There was then a discussion of the appearance of the letter box, apparently at that house, and the appellant told Chau to “yes, go around and take a good look around there”, and Chau asked “so you did put 432, did you?” The appellant confirmed he did. 432 Waterford Road, Ellengrove Road was an address to which the appellant did send an envelope from Kampuchea, and it was on the list.
Not long after that second conversation, and on that same day, Chau and the appellant spoke again. Chau confirmed he had collected “nine units in total”, and the appellant advised that “the other two have gone missing”. He then advised “Well, mother fucker, just forget those went missing, get what you can”. Chau replied “Yes because, mother fucker, they were stirring so much in that house, fuck, don’t know what is what, the mails were thrown every where”. He repeated that, “Yes that house got mails every where”.
On 19 March 2001 Chau and Nhan spoke on the phone. Nhan advised he had “sold only to one customer but Giang has taken .5 to the city to sell it there”. Chau reproved Nhan for allowing Giang to take “.5” and go to the city alone, saying “you gave it to him mother fucker, if he ends up smoking it again himself then it would be a disaster”. The Crown case is that the reference to “.5” was to .5 of a gram of a substance being sold as heroin.
The Heroin Under the Tree
A little later that same afternoon Chau was video taped walking out of the driveway of his premises at 369 Watson Road, and over to a tree on the footpath (one of three), beside which a commodore sedan Chau drove was parked. He was seen to stoop down behind the car, and on the first occasion was seen to be carrying something in his left hand. These events happened between 2.42 p.m. and 3.00 p.m. Very early on the next morning of 20 March 2001, and during the dark, police officers went to the base of that tree, and where the trunk met the ground removed from a cavity in the formation of the trunk a gold coloured balloon, which contained two other balloons, one red, and one blue, which in turn contained quantities of white rock substance wrapped in foil. Sample scrapings were taken of the white rock substance, and the three balloons, foil, and substance were found to have a total weight of 36.5 grams. The police then returned what they had found and weighed to the hiding point under the tree.
The four samples taken from each foil wrapped substance were shown on analysis to contain 15.8%, 16%, 16%, and 16.6% respectively of pure heroin. Counsel for the prosecution contented on the appeal that the balloons and foil would have weighed a few grams at the most, and if that argument is accepted, and it is accepted that perhaps 30 grams of the 36.5 weight was taken up with the white rock substance, then if 16% of that was pure heroin, that was 4.8 grams. The issue at the trial, and on this appeal, was whether the evidence established beyond reasonable doubt that the substance found under the tree was what the appellant had sent Chau from Kampuchea; or at least enough of it to constitute at least two grams of pure heroin.
Later that day 20 March 2001, Chau spoke to a man Chien, asking Chien “your previous regulars, are they still there?”, explaining “because I still got a little bit left over I want to get rids of so that we can go”. Chien replied that “I am not sure because my regulars those old ones, they are still take some parts each day” but that “since I started my detoxification I did not do it anymore, I let my older brother takes over”. Chien then enquired “how much have you still got?” and Chau replied “got about a little more than one half” and added “yes, about 20 odd, approximately 20, about 20 points, 20 grams”. Chau also told Chien that it was “delicious quality goods, it is not bad”; and Chien enquired at what price Chau would be prepared to sell “half of a piece that’s mean 14”. He further explained “that’s mean half of a lump”, and Chau said “Half of a lump then let say $10.00, $55.00 odd”. He clarified “let make it $5.50, is that all right?” The prosecution contend that these conversations established that “a point” is a gram of that substance, and that “half of a lump” describes half an ounce, being 14 grams, which 14 grams or “half lump” amount Chau was prepared to sell for $5,500.00. Chau was prepared to sell at that price “because I want it to go quickly so that we could go soon, do you understand?” (It appears Chien was to be the “soldier” who would accompany Chau to Kampuchea). Chau further explained “because as long as its still stuck here, then we still stuck with out capital, you know”. Chien was told to “go and try to, ask around and see” (if there were buyers). There was no evidence of any later approach by a buyer for this amount, unless it was the telephone call described in paragraph [27] herein.
Still later that same day Nhan spoke with Chau on the phone, asking “uncle, where do you keep the goods?” He explained his curiosity was because “so that I can get and go selling it”, and that “I probably will take 3.5 to sell”. Chau replied that “where the car is parked, do you know?” and Nhan said, “yes but there are three trees, is that the tree in the middle? Or which one?” He was told that it was the “first one”. (That description accorded with the location of the tree under which the substance containing heroin had been located early that morning). Still later that same day, Nhan rang again advising that “I’ll take two points up there, if he agrees then he will get it from us regularly”, and that “he told he would sell for me one point for $600.00 or $700.00”. During that call Chau spoke to a female, and instructed the female that Giang was to go to “the large tree trunk, wrap it into that as same as the other. The large tree trunk belongs to the other person’s house, and slot it in there”, “lift the rubbish up and put it in right in the exact root there, do you understand?”.
The Recovered Letters
On 23 March 2001 at about 4.30 a.m. in the morning the investigating police searched the wheelie bin outside 369 Watson Road. One of the white tidy bags found in it contained eight “wax type” envelopes of which six were yellow, one pink, and one green. They all had names and addresses on the front, and there were also eight white envelopes, about 15 cm x 20 cm in size, with corresponding names and addresses on the front, and with Cambodian postage stamps. Additionally, there were eight blank wedding cards with “Congratulations on your wedding” on the front. It appeared that the outer white envelopes on which the names and addresses were not written by the appellant had each contained one of the wedding cards, and one of the waxy envelopes. The expert opinion evidence led was that the appellant had written the name and address on each inner waxy envelope corresponding with that on the outer white envelope.
That same day, 23 March 2001 the appellant and Chau spoke again. The appellant wondered “where you disappeared to”, and Chau explained that he “has not finished, that’s why silence” and that “I still have a bit left”. The appellant asked “how much have you gathered so far, that part?” and was told “there is still about a half left, another half before it finishes”, (the prosecution say this most likely means half an ounce), and the appellant asked “how much papers have you gathered for it so far, that part?” Chau said “Got close to $4.00 that was from the youngsters whom do the individual sales. Could not do anything else”. (The prosecution say this meant $4,000.00 had been collected by Giang and Nhan from the sale of the substance). Chau was reproved by the appellant, who said “god, how can you do the business if it is just only a half of it?”
On 26 March 2001 Chau had a telephone call with a male person Minh, who explained that “I am at the boss’ place at the moment”, and that “the boss said about that thing” that “he asks would you take $5.00 for that thing?” Chau declined, because “if the worst comes then I just let the youngsters to go for individual”. The prosecution case was that that was an offer by the caller to purchase the remaining substance for $5,000.00, and Chau explaining he could do better by smaller sales.
When questioned by police on 31 May 2001 the appellant denied having ever sent anything in the mail from Cambodia to Australia, and while he admitted knowing Chau, said he did not like him, and that he had met Chau in Brisbane. He knew Chau lived in Acacia Ridge, but he did not know Chau’s family name.
The Agreement
Mr Feeney’s submissions identified a number of deficiencies in the evidence, which he submitted resulted in the failure of the prosecution case on the circumstance of aggravation. None of the postal items had been intercepted, none of those which went astray were subsequently found, there was no evidence of the source of telephone calls, (other than self or circumstantial identification), there was no evidence of heroin adhering to the recovered envelopes, and no certainty as to the actual quantity collected from them by Chau. There was no clear evidence of the dates of posting. One envelope was marked as received at an Australian Mail Handling Centre on 12 March 2001. The fact that at least two envelopes went missing and that only eight were located left open the possibility that unequal quantities were posted in the 11 envelopes, and that some or all of the envelopes located were tests of smaller quantities.
He submitted that the intercepted conversations did not identify the quantity, quality, source, or time of hiding of the heroin. While the submission conceded heroin was sent from Kampuchea by the appellant, in his submission the prosecution case, which was firstly that what the submission called the “Chau stock” was the Chieu “postal product”, and secondly that the Chieu postal product contained two grams or more of pure heroin, involved too many levels of speculation to support either proposition. The submission pointed to the circumstantial evidence that Chau was otherwise engaged in heroin dealing, and Mr Feeney submitted that accordingly it was not necessarily the case that all or even most of the heroin located under the tree had been posted by Chieu to Chau, or that Chieu was the only source for Chau. That being so, the prosecution case was fundamentally flawed and the verdict which included the circumstance of aggravation could not stand.
The respondent’s submission, not challenged on this point, was that the subterfuge involved in the postal arrangements, the coded “drug talk” in the telephone intercept, and the fact of finding heroin under the base of the tree, sufficiently established that the appellant had been knowingly concerned in the importation of heroin into Australia. (The constructions the prosecution placed on those coded conversations were not challenged on the appeal). On the critical and challenged point that the importation of two grams or more of pure heroin had not been established beyond reasonable doubt, the respondent’s submissions focused on the timing of arrival of the envelopes and their collection, and the timing of the offers and attempts to sell heroin thereafter. The submission pointed to the links established by the intercepted conversations between sales by “the youngsters” of heroin from the tree, Chau’s description on 20 March 2001 of what he had available for sale, and the “progress report” made to Chieu on 23 March 2001. The submission also pointed to the absence of any evidence before the jury of alternative suppliers or sources of heroin for Chau, the fact that sale of what the appellant was sending to Chau was considered necessary before Chau could finance a trip of his own to purchase heroin, the relatively small size of the sales being conducted by “the youngsters”, and the fact that those sales involved the use of “the stock” at the tree.
Conclusions
The jury were entitled to find:
the appellant went to Kampuchea to buy an ounce of a substance sold to him as heroin;
for $2,200.00 for the purpose of supplying it to Chau;
for resale in Australia by or through Chau;
that a substance believed to be heroin was bought by the appellants as intended, and imported into Australia in the letters posted to Chau;
that Chau came into possession of nine letters sent by the appellant from Kampuchea, and they contained what he expected to find, namely a substance believed to be heroin;
that after the letters had been collected by Chau, he had a white rock substance containing heroin hidden underneath the tree;
that no other hiding places for heroin were identified by the police, or by Chau in his intercepted telephone conversations;
that Chau had been involved with buying and selling heroin before the letters arrived;
that he had been doing that through the “youngsters”;
that after the letters arrived:
· Chau became more active in trying to make sales of heroin;
· he offered for sale, or also authorised Nhan to remove for sale, in different conversations and after the substance was weighed on 20 March, “3.5” (grams), “2 points” (2 grams) and a half ounce (“14 grams”).
· Chau sold some the substance which arrived in the letters through “the youngsters”;
· the substance he so sold was stored before sale under the tree;
· on 23 March he had “about a half left” (of an ounce) from what had been sent from Kampuchea, and had already collected $4,000.00 for that part of it which had already been sold;
· he had been willing on 20 March to sell a “half” (ounce) or 14 grams of the substance for $5,500.00, because otherwise he would be “stuck without capital”.
the substance underneath the tree on 20 March 2001 was of generally uniform consistency, namely 16% heroin.
Despite the very effective submission of counsel for the appellant, the critical connecting points between what was sent in the letters and what was under the tree were established by the prosecution, and particularly by the conversations on 20 March 2001 in which Chau identified himself as having “about 20 odd, approximately 20, about 20 points, 20 grams”, and his conversation three days later when he “still had about a half left” from what had been imported. On 20 March in the early morning he in fact had at least 30 grams of white rock substance under the tree, but it was not wildly inaccurate to call that “approximately 20” later that day. The jury were entitled to accept his description three days later of there being “about a half” left from what the appellant had sent as a description, upon which they could safely rely, of about half an ounce of the substance under the tree on that date having come from, and being the remainder of, the substance the appellant caused to be imported; and after a quantity of it had been sold for $4,000.00. 14 grams at 16% purity would be 2.24 grams of pure heroin. It was not speculation for the jury to be satisfied beyond reasonable doubt that two grams or more of pure heroin were imported through the appellant’s letters received by Chau.
The appellant’s submissions raised two further matters. The first was the suggestion in the appellant’s written outline, not pursued in oral argument, that the evidence of conversations led between Chau and the persons Chien, Nhan, and Minh (led without objection) were all “hearsay admissions”, which all occurred after the importation of the heroin, and which might have been objected to as inadmissible. The written outline of argument suggested that the principles identified and applied in Tripodi v R (1961) 104 CLR 1 and Ahern v R (1988) 165 ALR 87 may not have assisted the prosecution. As to that submission, the evidence appears to have been led as original evidence of arrangements Chau was then making, which were relevant because from them could be inferred that he possessed heroin for sale obtained from the appellant.
The Application to Lead Evidence
The second matter was in substance an application to call evidence of the case the prosecution proposed to make against Chau, on Chau’s prosecution for trafficking in heroin. The point of that evidence, which it appears would most likely have been available to the appellant’s legal representatives before the trial, was to demonstrate that Chau had been involved in selling heroin before the arrival of the envelopes the appellant sent from Kampuchea. It was sought to lead this evidence to strengthen the possibility that the heroin under the tree came from sources other than the appellant’s heroin.
That other evidence was described in a document headed “statement of facts”, prepared for Chau’s prosecution. If the assertions made in it were established by evidence, they would show that Chau unsuccessfully attempted to buy heroin in Melbourne between 20 and 27 February 2001. He also engaged in March 2001 both in attempts to sell heroin as a “broker”, and an actual sale as a broker. His method of trade was to identify a holder of heroin, and to negotiate a price for sale of that heroin to a purchaser known to Chau. Chau would add a commission to the purchase price. Sales as a broker did not necessarily involve Chau possessing heroin.
The evidence sought to be led would demonstrate an unsuccessful attempt to act as a broker on 2 March 2001, in which Chau himself did not possess the heroin the sale of which he was arranging of behalf of another. Likewise, there was an unsuccessful attempt on 4 and 5 March 2001, in which he appeared to have been acting strictly as a broker not in possession, and yet another unsuccessful attempt in similar circumstances on 6 March 2001. Likewise, a sale attempted to be arranged on 8 March 2001 was of heroin apparently possessed by, or under the control of, a female acquaintance. On 10 March 2001, Chau arranged a sale by phone, promising to supply the purchaser with heroin which his brother would bring to her. He then made arrangements with his brother for a time and place for delivery. That conversation did not disclose that Chau himself possessed any heroin.
However, an arrangement made on 11 and 12 March 2001 did reveal Chau saying on 12 March that he had been able to obtain “crabs” (said by the prosecution to be heroin); and after having been seen on that day to visit his customer’s home and find no one there, he telephoned the customer and advised that he had “taken crabs” to her house, but had met no one. That statement did assert possession on that date of heroin. The source of it was not established; the significance of this is that it was the day before Chau told the appellant that he had not yet received what the appellant was sending.
Reasons for Declining to Hear further Evidence
The court declined to receive that further evidence, holding there was no significant possibility that the jury acting reasonably would have acquitted the appellant had that evidence been before it at that trial,[4] and undertaking to give fuller reasons later. These are that that evidence would certainly have shown that Chau was very busy in and about attempting to arrange heroin sales in late February and the first half of March 2001, but the evidence led at the trial itself conveyed a necessary implication he was an active dealer in heroin. The evidence sought to be led on the appeal would have strengthened the prosecution case that the appellant was in Kampuchea to obtain heroin to send to Chau, and would have also demonstrated how quickly Chau was likely to dispose of any heroin in his possession. If anything, it would have increased the likelihood that heroin possessed by him under the tree on 20 March 2001 had only recently been received by him. That further evidence did not show or suggest Chau had gotten or possessed heroin from any other source between 13 March and 26 March 2001; and would really have left unchanged the proposition established by the evidence and verdict that the appellant went to Kampuchea, and succeeded in obtaining in excess of two grams of pure heroin which he then succeeded in having imported into Australia. The learned trial judge specifically reminded the jury that the defence was that they would have a reasonable doubt about where the heroin under the tree came from, and that they could not be satisfied that it came from the envelopes, or that Mr Chau did not have other sources of supply for that heroin. The appellant’s case was put fairly to the jury; and there is simply no likelihood that the verdict of the jury would have been any different had the further evidence been led of Chau’s other, and largely unsuccessful, attempts to sell heroin. The appeal against conviction should be dismissed.
[4]Mickelburg v The Queen (1989) 167 CLR 273 at 292; Gallagher v The Queen (1986) 160 CLR 392 at 407.
The appellant sought leave to appeal against his sentence, but only on the proposition that neither the jury in finding the circumstance of aggravation[5] nor the learned trial judge when imposing sentence,[6] could properly have been satisfied that it was not less than the trafficable quantity. The appellant’s counsel agreed that if that argument failed the appellant could not complain about the sentence imposed.
[5]Kingswell v The Queen (1985) 159 CLR 264 at 277; Meaton v R (1985) 21 A Crim R 117 at 119; R vGardiner (1979-80) 27 ALR 140 at 146. These decisions require the circumstance of aggravation be alleged in the indictment.
[6]Gardiner at 146-147; Kingswell at 274, 282. Those judgments require the sentencing judge to find and be satisfied as to the relevant facts constituting the circumstance of aggravation, when imposing sentence.
I would order that both the appeal against conviction and the application for leave to appeal against sentence be dismissed.
CULLINANE J: I agree with the reasons of Jerrard JA in this matter and the orders he proposes.
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