R v Yau

[2017] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Case Stated)

Question of Law Reserved NO 1 OF 2016

R v YAU

[2017] SASCFC 4

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Parker and The Honourable Justice Doyle)

10 February 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES

EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - EVIDENCE BEFORE TRIAL - LETTER OF REQUEST - REQUESTS BY FOREIGN STATES OR COURTS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

The defendant was charged with attempting to import a commercial quantity of methamphetamine. The alleged offending related to a parcel delivered to an Adelaide Post Office address that had been intercepted at Hong Kong International Airport. The prosecution proposed to rely at trial upon statements of six customs officers involved in the interception as to the chain of custody of the parcel and its contents. The prosecution proposed to adduce the statements as foreign material admissible under s 24 of the Foreign Evidence Act 1994 (Cth). Shortly before the trial was due to commence, the defendant brought an application seeking an exercise of the trial judge’s discretion to exclude this evidence under s 25 of that Act. The trial judge acceded to the application and excluded the evidence. The prosecution thereafter tendered no evidence at trial and the defendant was acquitted.

On the application of the Commonwealth Director of Public Prospection, the trial judge reserved the following question for consideration to the Full Court under s 350 of the Criminal Law Consolidation Act 1935 (SA):

“Was I correct in exercising my discretion to exclude the Hong Kong evidence under s 25 of the Foreign Evidence Act?”

Held per Doyle J (Parker J agreeing):

1.       In a case where the question relates to the exercise of a discretion that has already been the subject of determination by the trial judge, it will generally be appropriate that the question be posed in terms whether the discretion has been “properly exercised”.  In the present context, there is no difference between whether a discretion has been "properly" or "correctly" exercised. In answering a question  posed in these terms, the Full Court’s approach will be governed by the principles of appellate restraint in House v The King (at [138], [177]-[179]).

2. Consideration of the circumstances relevant to the exercise of the court’s discretion to exclude evidence under s 25 of the Act (at [224]-[235]).

3.       The evidence in question was not otherwise available (at [224]) and was highly probative (at [226]). The defendant identified a number of factual issues which, while not likely to have been of great moment, could have been the subject of legitimate cross-examination (at [230]). While some expense, delay and prejudice to the prosecution could be inferred from exclusion of the evidence, the prosecution did not adduce evidence as to the nature and extent of the prejudice (at [234]).

4.       In the circumstances, no error of the type required by House v The King has been established in the trial judge's decision to exclude the evidence in question (at [148], [240]).

5.       The question reserved to this Court for consideration should be answered “Yes” (at [137], [241]).

Per Blue J

1.       Consideration of the question whether on its proper construction a “relevant question” within the meaning of section 350 is confined to a question of law and hence a question concerning a discretion is confined to whether the exercise involved or would involve error in accordance with the principles identified in House v The King (at [44]-[58]).

2.       Due to the absence of any evidence adduced or information provided to the trial Judge during the hearing, it is not possible to answer a question how this Court would have exercised the discretion on the merits and the question must therefore be construed as asking whether the exercise of the discretion involved error in accordance with the principles identified in House v The King (at [59]).

3. Consideration of the construction of section 25 (at [65]-[81]).

4.       The Judge erred by failing to consider the exercise of the discretion separately in respect of each witness (at [85]).

5.       The Judge erred in failing to inquire what steps the Director would or could take if the material were excluded (at [111]).

6.       No other process errors have and no outcome error has been demonstrated (at [94], 100]).

7. The question reserved to this Court should be answered “The exercise of the discretion was vitiated by the failure of the Judge to consider the exercise of the discretion under section 25 separately by reference to each individual Customs officer and the failure by the Judge to inquire into and make findings about what steps could or would be taken to adduce the evidence by alternative means and with what delay and at what expense if each affirmation were excluded.” (at [136]).

Criminal Code Act 1995 (Cth) s 11.1, s 307.1; Criminal Law Consolidation Act 1935 (SA) ss 348, 350, 351A, 352; District Court Criminal Rules 2014  (SA) r 49, r 51; Evidence Act 1929 (SA) s 59E; Foreign Evidence Act 1994 (Cth) ss 3, 7, 9, 9A, 10, 11, 12, 15, 20, 21, 22, 23, 24, 25, 26; Judiciary Act 1903 (Cth) s 68; Foreign Evidence (Foreign Material – Criminal and Related Civil Proceedings) Regulations 1994 (Cth) r 4, referred to.
House v The King (1936) 55 CLR 499; R v Marchando (2000) 110 A Crim R 337; R v Reid [1999] 2 VR 605; Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423, discussed.
IMM v R (2016) 90 ALJR 529; Lee v The Queen (1998) 195 CLR 594; R v Gee (2003) 212 CLR 230; R v Lutze (2014) 121 SASR 144; R v Milne (No 1) (2010) 260 FLR 166; R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295; Wakeley v The Queen (1990) 64 ALJR 321; Application for Reservation of Questions of Law (No 1 of 2006) [2006] SASC 65, considered.

Question of Law Reserved NO 1 OF 2016
R v YAU
[2017] SASCFC 4

Court of Criminal Appeal:       Blue, Parker and Doyle JJ

1. BLUE J: This is a case stated by a Judge of the District Court on reservation of a question for determination of the Full Court on the application of the Commonwealth Director of Public Prosecutions following the acquittal of the accused Pok Wai Yau. The question reserved is “Was I correct in exercising my discretion to exclude the Hong Kong evidence under s 25 of the Foreign Evidence Act?”

2. Mr Yau was charged with attempting to import a commercial quantity of a border controlled drug, namely methamphetamine, between about 25 and 26 June 2014.[1]

   [1]    Criminal Code Act 1995 (Cth) subsections 11.1(1) and 307.1(1).

3. The prosecution case was that on 17 June 2014 a carton containing clothing in which was hidden approximately one kilogram of a substance comprising methamphetamine contained within an inner zip lock bag, in turn contained within an outer zip lock bag, was posted in Hong Kong. It was addressed to a parcel locker at the Kent Town Post Office and Mr Yau collected the carton on 26 June 2014 in the belief that it contained a commercial quantity of methamphetamine. In the meantime, the carton had been intercepted by Customs officials in Hong Kong, who removed the methamphetamine. The Australian Federal Police substituted an inert substance in the carton.

4. The prosecution case was that from about 10.00 am on 18 June 2014 the carton and its contents were successively and continuously in the possession of six Hong Kong Customs officers; the white crystalline substance found in the zip lock bag was delivered on 19 June 2014 to a government chemist, Dr Lo, who analysed it and found it to contain 99 percent pure methamphetamine; and the carton with its remaining contents was delivered on 21 June 2014 to Cathay Pacific Airways for transport on flight CX 173 to Adelaide.

5. The Director served on Mr Yau affirmations by the six Hong Kong Customs officers verifying earlier witness statements concerning the carton and its contents. The Director gave notice of intention to rely on Part 3 of the Foreign Evidence Act 1994 (Cth) (the Act).

6. Mr Yau sought exclusion of admission of the six affirmations pursuant, inter alia, to section 25 of the Act. A voir dire on this and other preliminary issues was heard by the trial Judge. The Judge excluded admission of the affirmations. The Director then tendered no evidence at the trial and the Judge directed the jury to acquit Mr Yau.

7. For the reasons that follow, the question reserved should be understood as asking:

   Did the exercise of the discretion by the Judge involve error in accordance with the principles identified by the High Court in House v The King[2]?

   and the answer to the question should be:

   The exercise of the discretion was vitiated by the failure of the Judge to consider the exercise of the discretion under section 25 separately by reference to each individual Customs officer or to inquire into and make findings about what steps could or would be taken to adduce the evidence by alternative means and with what delay and at what expense if each affirmation were excluded.

   [2] (1936) 55 CLR 499.

   Background

8. On 17 June 2014, a carton was posted at Kwong Wa Street Post Office in Hong Kong. The sender was shown as Boey Chung of an address in Hong Kong and the addressee was shown as Hugo Yu, Parcel Locker 1003101762, 37 Rundle Street, Kent Town, South Australia. The parcel was dispatched by Hong Kong Post to the Air Mail Centre at Hong Kong International Airport.

9. In June 2014, Lau Ka-kit (Mr Lau), Lam Hung-in, Chong Ying-lung and Chan Kwok-leung were employed as Hong Kong Customs officers at Hong Kong International Airport, based in the Airmail Examination Unit.

10. On 18 June 2014, Mr Lau prepared and signed a Postal Package Examination Report in respect of the carton. He recorded its Postal Packet No as CP894806007HK. He recorded that the examination took place between 10.00 and 10.20 am and the contents included “suspected methamphetamine approx 1.015 kg”. The Postal Package Examination Report was countersigned by Lau Kwok-leung of Hong Kong Post.

11. On 20 June 2014, Mr Lau prepared and signed a witness statement. Mr Lau said that on 18 June 2014 around 10:00 he examined postal package CP894806007HK. He opened the carton and found two pairs of pants and a T-shirt. He opened the T-shirt and found a white grained substance stored in two transparent zip-lock bags. He undertook a carbonium ions test and a drug testing chemical test of the white grained substance, which suggested that it was ice. He listed the contents of the carton and numbered them from P1 – which he described as “suspected methamphetamine contained in 2 zip lock bags - 1.015 kilogram” – through to P5 – being some carbon paper. He numbered the carton as P6 and the Postal Package Examination Report as P7. At around 16:20, he assigned the package to Customs officer Lin Hong-yuen (CO 13148).

12. On 20 June 2014, Lau Kwok-keung (of Hong Kong Post) prepared and signed a witness statement. Lau Kwok-keung said that on 18 June 2014 at around 10:00 he witnessed the examination of postal package CP894806007HK by Mr Lau. He corroborated what Mr Lau saw when he opened the package. He countersigned the Postal Package Examination Report.

13. On 23 June 2014, Lam Hung-in (CO 13148) prepared and signed a witness statement. Mr Lam said that on 18 June 2014 at around 16:20 he received at the Customs detention facility (G53) a package from Mr Lau containing seven items which he listed in the same terms as in Mr Lau’s statement. He stored them in the Customs detention facility (G53) until around 22:00, when he placed them in the care of Chong Ying-lung (CO 1002).

14. On 21 June 2014, Chong Ying-lung (CO 1002) (Mr Chong) prepared and signed a witness statement. Like the other Customs officer’s statements, the witness statement was in Cantonese, except the description of seven items which was in English. Mr Chong said that on 18 June 2014 at around 22:00 he received from Mr Lam at the Customs detention facility (G53) a package containing seven items which he listed in the same terms as in Mr Lau’s statement. He stored them in the Customs detention facility (G53) until around 8:05 on 19 June, when he placed them in the care of Chan Kwok-leung (CO 98250).

15. On 20 June 2014, Chan Kwok-leung (CO 98250) prepared and signed a witness statement. Chan Kwok-leung said that on 19 June 2014 at 8:05 he received at the Customs detention facility (G53) a package from Mr Chong containing seven items which he listed in the same terms as in Mr Lau’s statement. He stored them in the Customs detention facility (G53) until around 13:20, when he placed them in the care of Leung Wing-yi (CO 12142).

16. In June 2014, Leung Wing-yi (Mr Leung) and Chan Ching-hong (Mr Chan) were employed as Hong Kong Customs officers at Hong Kong International Airport, based in the Drugs Investigation Section, Airport Investigation Group.

17. On 19 June 2014, Leung Wing-yi (CO 12142) prepared and signed a witness statement. Mr Leung said that on 19 June 2014 at around 13:20 he received from Chan Kwok-leung at the Airport Air Mail Centre a package containing seven items. He stored them in Room 5T024 of the Airport Investigation Group until around 14:25, when he placed them in the care of Chan Ching-hong (CO 7308).

18. Mr Leung annexed to his statement a list of seven items he received from Chan Kwok-leung, which did not include the Postal Package Examination Report (P7), but included the other six items listed by Chan Kwok-leung and his predecessors in the Airmail Examination Unit. He divided the first item (designated P1 by Mr Lau) into two separate items:

    1.“suspected methylamphetamine approx. 1.015 kilogram” which he marked as CID/2/35/14(A) (item (A)); and

    2.“ziplock bag contain CID/2/35/14(A) quantity 2” which he marked as CID/2/35/14(B1) (item (B1)).

19. On 22 June 2014, Mr Chan (CO 7308) prepared and signed a witness statement. Mr Chan said that on 19 June 2014 at around 14:25 he received from Mr Leung at Room 5T024 a package containing seven items which he listed in the same terms as the items listed in Mr Leung’s statement. He undertook a drug testing chemical test of item (A), which suggested that it was ice. He removed item (A) from one of the zip lock bags (part of item (B1)) into a clear plastic bag, which he then sealed inside a Customs Evidence Bag. He divided the designation of the zip lock bags (item (B1)) into two separate items:

    1.     the outer zip lock bag, which he designated as item (B1A); and

    2.the inner ziplock bag in which the suspected methylamphetamine had been located, which he designated as item (B1B).

20. Mr Chan said that he placed the inner zip lock bag (item (B1B)) inside a Customs Evidence Bag. He returned the other items (apart from item (A) and item (B1B)) into the carton to restore the postal packet, which he sealed with customs tape. He stored all items except item (A) in a locked storage cabinet in Room 5T024.

21. Mr Chan said that he took item (A) to the Ho Man Tin Government Laboratory, where he handed it to a government chemist at around 16:12.

22. Mr Chan said that on 21 June at around 17:50 he removed the restored postal packet from the storage cabinet and took it to gate 46, where he placed it into the valuables storage cabinet of a container owned by Cathay Pacific Airways. He watched the container being loaded onto Cathay Pacific flight CX173 bound for Adelaide and kept watch until the plane moved out of the gate.

23. On 25 June 2014, the Hong Kong Government Laboratory issued a test result record showing that the weight of the substance received by Dr Lo on 19 June was 982.499 grams and contained 973.669 grams of methamphetamine. This was later attached to a witness statement signed by Dr Lo.

24. On 12 August 2014, Constable David Clark of the Australian Federal Police prepared a statement. In his statement, Constable Clark said that on 22 June 2014 he attended at gate 8 at Adelaide Airport awaiting incoming Cathay Pacific flight CX173. At about 5.28 am, he took possession of a package sealed with Hong Kong Customs seals which he had observed being removed from the Cathay Pacific package container.

25. On 16 September 2014, Lui Wai-leung, Superintendent of Post at Hong Kong International Airport, prepared and signed a witness statement. He exhibited and explained Hong Kong Post’s computerised records relating to the carton. He exhibited a screen dump showing an outward/local parcel items enquiry for the parcel with the unique air waybill number CP894806007HK. Relevant lines on the screen dump showed:

    ·17 June 2014 at 16:29 as the date and time of “makeup internal parcel despatch” (which Mr Lui explained in his statement meant that Kwong Wa Street Post Office made up internal dispatch of the item for sending to the next office);

    ·18 June 2014 at 10:17 as the date and time of “rec. received ordinary parcel bags” (which Mr Lui explained meant the item was received by the Air Mail Centre);

    ·19 June 2014 at 13:17 as the date and time of “makeup overseas parcel despatch” (which Mr Lui explained meant the Air Mail Centre made up overseas parcel dispatch of the item for sending to the next office);

    ·23 June 2014 at 9:51 as the date and time of “EDI interface with event = EMD” (which Mr Lui explained meant the item was sent from the originating place and that the item was supposed to be delivered by flight CX 105 on this date at this time and the intended destination was Melbourne);

    ·22 July 2014 at 22:31 as the date and time of “prepare delivery bill” (which Mr Lui explained meant the item was sent on board flight on this date and at this time).

26. On 16 September 2014, requests were made on behalf of the Attorney-General for testimony by the six Hong Kong Customs officers, the two Hong Kong Post officers and Dr Lo.

27. On 22 and 24 October 2014, each of the six Hong Kong Customs officers, together with Dr Lo, made an affirmation in English annexing his witness statement and stating that the information contained in the statement accurately set out the evidence that he would be prepared, if necessary, to give in court as a witness. Each of the two Hong Kong Post officers subsequently made affirmations in similar terms.

28. On 22 November 2014, William Wai-lam Leung signed a statement attaching the original witness statements in Cantonese together with English translations of those statements made by him.

29. On 25 February 2015, the Director gave notice to Mr Yau’s solicitors that the Director intended to tender at trial copies of the original Cantonese affirmations and their English translations pursuant to section 24 of the Act.

30. On 15 June 2015, an authorised officer for the purposes of subsection 26(1) of the  Act issued a series of certificates certifying that each affirmation had been received as a result of a request for assistance made on behalf of the Attorney-General.

31. On 8 July 2015, Mr Yau having pleaded not guilty, the matter was listed for trial to commence on 8 February 2016.

    The voir dire hearing

32. On 4 February 2016, Mr Yau filed an application under rule 49 of the District Court Criminal Rules 2014 (SA) seeking inter alia exclusion of the six Customs officers’ affirmations inter alia in the exercise of the discretion under section 25 of the Act.

33. On 9 February 2016, the Judge conducted a voir dire. No objection was made by the Director to the application having been filed out of time (under rule 51(6) it should have been filed by 22 January 2016) and no extension of time was sought by Mr Yau or explanation offered for its being late. No information was given to the Judge by the Director as to what steps the Director would take if the affirmations were excluded, in particular whether the Director would seek an adjournment of the trial and if so for how long, and whether the Director would seek supplementary declarations, seek to call some or all of the Customs officers to give evidence in or from Hong Kong, or call some or all of the Customs officers to give evidence in Adelaide. No adjournment was sought by the Director to adduce evidence of or obtain information about these or other matters.

1. During the hearing, the Director clarified that it was intended that Dr Lo be called as a witness to give evidence in Adelaide rather than relying on his affirmations under section 25 of the Act. No objection was taken by Mr Yau to the admission of the affirmations by the two Hong Kong Post officers Mr Lui and Lau Kwok-keung.

2. Mr Yau submitted that there were four vagaries or inconsistencies in the witness statement of Mr Lau by reason of which Mr Yau should be entitled to cross-examine Mr Lau. First, Mr Lau did not give any details of the two tests for “ice” he conducted or their results. Secondly, Mr Lau did not give any details of how he derived the weight he recorded of 1.015 kg, including whether only the white substance was weighed or also the zip lock bags and what mechanism was used to ascertain the weight, in circumstances in which Dr Lo recorded the weight of the white substance he received as 0.982 kg. Thirdly, Mr Lau said that he commenced examining the parcel at 10.00 am, which was contradicted by the Hong Kong Post record showing arrival of the parcel at 10.17 am. Fourthly, Mr Lau gave no explanation of what he did with the parcel or how or to what extent it was secured between 10.00 am and 4.20 pm (other than his description of examining, testing and photographing it).

3. The Director responded to these alleged vagaries or inconsistencies. First, the Director did not rely on the tests undertaken by Mr Lau which were merely presumptive and submitted that it was for Dr Lo to prove precisely what the substance was. Secondly, Mr Lau’s description of the weight was not evidence that could be relied on, and in any event the difference in weight was small and might be accounted for by the weight of the zip lock bags. Thirdly, the Hong Kong Post record only showed the time at which arrival was manually recorded as 10.17 am as opposed to the actual time of arrival.

4. Mr Yau submitted that there was an inconsistency between the English translations of the statements of Mr Lam, who said that he handed over the package at 10.00 pm, and Mr Chong, who said that he received the package at 8.20 pm.

5. The Director responded that the original Cantonese version of the statement of Mr Chong showed 22:00 (10.00 pm) and the reference in the English translation to 20:20 (8.20pm) was an obvious transposition error.

6. Mr Yau submitted that there was a vagary or inconsistency in the statement of Chan Kwok-leung who said that he had custody of the parcel between 8.05 am and 1.20 pm; whereas the Hong Kong Post record showed the item being made up for overseas parcel dispatch at 1.17 pm.

7. Mr Yau submitted that there were two inconsistencies in the statement of Mr Leung. First, he recorded the file number as CID/2/35/14; whereas his four predecessors had recorded the file number as CEA/3/324/14. Secondly, his description of the contents differed from those of his predecessors because he omitted the Postal Package Examination Report (P7) and included a new item being the two zip lock bags (item (B1)).

8. Mr Yau submitted that there were three inconsistencies in the statement of Mr Chan. First, like Mr Leung he recorded the file number as CID/2/35/14. Secondly, like Mr Leung his description of the contents differed from that of Mr Leung’s predecessors. Thirdly, his description of the contents differed from that of Mr Leung because he introduced a third zip lock bag.

9. The Director responded that, although Mr Leung and Mr Chan used a different file number to that used by their four predecessors, Mr Chan referred to the same air waybill number, namely CP 894806007 HK, as their four predecessors and the items themselves were the same. Secondly, Mr Chan physically removed the white substance from the zip lock bag and placed it in a new plastic bag which in turn was placed in an evidence bag. There was no introduction of a third zip lock bag.

   The Judge’s reasons

10. The Judge gave reasons for the ruling exercising his discretion to direct that the six affirmations not be adduced as evidence. The Judge gave the following reasons for the exercise of his discretion:

    Mr Handshin has objected to the admission into evidence, pursuant to provisions of the Foreign Evidence Act 1994, the various statements of the customs officers at the Hong Kong Airport. The prosecution seeks to tender them as “testimony” pursuant to the provisions of that Act.

    …

    Section 25 of the Act gives the court a discretion not to permit the foreign material to be adduced if the court is satisfied that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced in evidence. In deciding whether or not to direct that the evidence may not be adduced, I must take into account a number of matters set out in s 25(2). I have considered all of those matters. In particular, in considering the extent to which the foreign material provides evidence that would not otherwise be available pursuant to subsection (a) of section (2) I have borne in mind the fact that the prosecution is unable to prove that the white crystalline substance the subject of the charge was methamphetamine without the Hong Kong statements. That is a most important factor and the alleged offending is very serious.

    I have also in considering all of the factors in subsection (2), considered whether or not the exclusion of the Hong Kong statements would unfairly prejudice any party to the proceeding. The party prejudiced by their exclusion is, of course, the prosecution.

    Mr Handshin has objected to the admission of the Hong Kong statements, insofar as my discretion to exclude them is concerned, on the basis that they contain a number of errors which give rise to uncertainty about the chain of custody of the white crystalline substance before it was received by the analyst, Dr Lo. There are a number of unexplained inconsistencies in the statements. Without clarification from the relevant witnesses in Hong Kong, those inconsistencies raise doubts about whether or not the substance examined by Dr Lo was the substance found in the package. Further, there is no evidence about the operation of the offices or departments in Hong Kong through which the white crystalline substance passed. To put that another way, there is no opportunity to know what is the likelihood of some interference with, or innocent mistaken dealing with, the white substance. The inconsistencies are plain on a close reading of the Hong Kong statements and, in my view, should have led the prosecution to seek clarification, if possible, from the relevant officers in Hong Kong. No material has been put before me to suggest that the prosecution could not have done so.

    Because there is, as things stand, a doubt about the provenance of the white crystalline substance examined by Dr Lo and because the prosecution cannot succeed unless it can prove beyond reasonable doubt that the substance was the substance contained in the package, I am of the view that justice would be better served by my not permitting the prosecution to adduce the Hong Kong statements. I decline to admit that material. In making that ruling, I have taken into account the seriousness of the charge and the difficulties and expense involved in producing the Hong Kong witnesses in Australia. But, as I have already said, it seems to me that it would not have been too difficult a task for the prosecution to seek clarification of the apparent inconsistencies in the statements.

    The question on the case stated

11. The Director contends that, on its proper construction, the question reserved calls for this Court to review on the merits the exercise of the discretion by the Judge under section 25 of the Act; in other words, how would this Court have exercised the discretion in all of the circumstances. Mr Yau contends that, on its true construction, the question reserved calls for this Court to determine whether the exercise of the discretion by the Judge involved error in accordance with the principles identified by the High Court in House v The King[3]; in other words, has there been a process error or outcome error in the exercise of the discretion.

    [3] (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

12. These competing contentions raise for consideration the power of the Court under subsection 350(4) of the Criminal Law Consolidation Act 1935 (SA) to state a question for consideration by the Full Court and in particular whether that power extends to a question other than a question of law.

13. Section 350 of the Criminal Law Consolidation Act 1935 (SA) provides:

    350—Reservation of relevant questions

    (1)     In this section—

    relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.

    (2)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—

    (a)     antecedent to trial; or

    (b)     relevant to the trial or sentencing of the defendant,

    and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.

    (3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.

    (4)A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Full Court.

    (5)The Full Court may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination.

    (6)     An application for an order under subsection (5) may be made by—

    (a)     the Attorney-General or the Director of Public Prosecutions; or

    (b)     a person who—

    (i)has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Full Court; and

    (ii)has obtained the permission of the primary court or the Supreme Court to make the application.

    (7)If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.

14. It is common ground that the question reserved in the present case is either a question “antecedent to the trial”[4] or “arising in the course of the trial”[5] or both within the meaning of subsection 350(4).

    [4] A “question antecedent to the trial” refers to any issue that is antecedent to the trial within the ordinary meaning of the word “antecedent” and is not confined to an issue whether proceedings should be stayed as an abuse of process in accordance with the definition of the term “issue antecedent to trial” in section 348. This follows not only from the wording in subsection 350(4) referring to a question antecedent to the trial but also from the context which indicates that an “issue … antecedent to trial” referred to in subsection 350(2) refers to any issue that is antecedent to the trial within the ordinary meaning of the word “antecedent” and is not governed by the definition contained in section 348.

    [5]    On the one hand, the question was heard on 9 February 2016 being the day fixed for the commencement of the trial and, but for the hearing of the question, Mr Yau would otherwise have been arraigned and the jury empaneled on that day, and Mr Yau had previously been arraigned and had pleaded not guilty. On the other hand, the question was determined on an application under rules 49 and 51 of the District Court Criminal Rules 2014 (SA), the jury had not in fact been empanelled and Mr Yau was not in fact arraigned on that day or subsequently until the jury was empanelled on 11 February 2016. In the circumstances, it is probable that the question arose “in the course of the trial” within the meaning of subsection 350(4) but the question is not beyond doubt: see the discussion as to when a trial begins in R v Thaller and Gee (Question of Law Reserved) [2001] SASC 14, (2001) 79 SASR 295 at [21]-[32] and [93] per Doyle CJ (with Prior and Duggan JJ agreed) (reversed on other grounds by the High Court in R v Gee [2003] HCA 12, (2003) 212 CLR 230).

15. In contrast to subsections (2) and (5), subsection (4) of section 350 does not explicitly confine questions which may be stated to relevant questions. However, each of these three subsections is dealing with the same subject matter arising in three different circumstances and the three subsections should be interpreted as being cognate so that reference to a question in subsection (4) is to a relevant question within the meaning of subsection (1).[6]  It is the evident intention of the legislature that the power conferred by subsection (4) in respect of an acquittal be co-extensive with the powers conferred by subsections (2) and (5) in respect of a conviction. There is no reason why the latter should be confined to questions of law but the former should not.

    [6]    Similarly, subsection (5) refers merely to a relevant question without explicitly confining it to a question on an issue antecedent to trial or relevant to the trial or sentencing of the defendant, but it is apparent from the context that, like subsection (2), it is intended that the power conferred by subsection (5) be so confined.

16. The question of the Judge’s power to state the question therefore turns on the definition of a “relevant question” in subsection (1). There are two possible alternative constructions of that definition. The first is that a “relevant question” is confined to a question of law and the definition clarifies that this includes a question of law about the exercise of a discretion whether past or prospective. The second is that a “relevant question” is either a question of law or a question about the exercise of a discretion (past or prospective) and the second encompasses a question how this Court would itself exercise the discretion.

17. I favour the first construction on the basis that the legislature was clarifying that, for the purposes of the definition, a relevant question includes a question of law about the exercise of a discretion. Otherwise in the context of section 350 it might be understood to refer only to questions of substantive law and it was not intended to refer to questions merely about the exercise of discretion on the merits. The subsection uses definitive language in providing that a relevant question means a question of law: it does not provide that a relevant question means either a question of law or a question about the exercise of a discretion. It goes on to provide that a question of law includes a question about the exercise of a discretion.

18. If it had been intended to provide that a relevant question means either a question of law or a question about the exercise of a discretion, it would have been easy for the legislature to have so provided. Indeed, this had been the effect of the definition of “relevant question” contained in subsection 350(a1) before section 350 was repealed and replaced in 2006.[7] That subsection had provided:

    "relevant question" means—

    (a)a question of law; or

    (b)to the extent that it does not constitute a question of law—a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.

    [7]    Statutes Amendment (New Rules of Civil Procedure) Act 2006 (SA). The decision of this Court in Application for Reservation of Questions of Law (No 1 of 2006) [2006] SASC 65 was made under the pre-2006 version of section 350.

19. Whichever construction is adopted, it is clear that the definition of “relevant question” contained in subsection 350(1) refers both to the past exercise of a judicial discretion (“whether a judicial discretion has been properly exercised”) and to the prospective exercise of a judicial discretion (“how a judicial discretion should be exercised”).  These two limbs should be construed consistently so that either both are confined to questions of law or neither are so confined.

20. As to the past limb, the use of the language “whether a judicial discretion has been properly exercised” suggests that the question is whether the exercise of the discretion involved error, which is a question of law as articulated by the High Court in House v The King.[8] As to the prospective limb, the use of the language “how a judicial discretion should be exercised” is ambiguous but read in context the use of the word “should” suggests that the question is whether the exercise of the discretion would involve error if exercised in a certain manner.

    [8] (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

21. It is clear that section 350 does not authorise the stating of a question of fact. As the exercise of a discretion often turns on findings of fact, it would be incongruous if the section were regarded as authorising the stating of a question whether this Court would itself exercise the discretion in favour of or against a party but not how this Court would decide a question of fact.

22. Although the construction issue arises in this case in the context of subsection 350(4) when Mr Yau has already been acquitted, the same issue would arise in the context of an application under subsection 350(2) or (5) when the trial is still proceeding. Indeed this was the original purpose of section 350 and remains its primary purpose. In the context in which the trial is still proceeding, it appears anomalous that a question would be reserved for the consideration of this Court as to whether this Court would itself have exercised the discretion in favour of or against a party in the same manner as the trial judge as opposed to a question whether the trial judge’s exercise of the discretion miscarried due to a process or outcome error.

23. In Application for Reservation of Questions of Law (No 2 of 1999),[9] Doyle CJ (with whom Duggan and Wicks JJ agreed) referred in a different context to the purpose of section 350 in its pre-2006 form in the following terms:

    Bearing in mind that Parliament has not conferred upon the Director of Public Prosecutions a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s 350 mainly in relation to relevant questions that raise an important question of law or a question of law of general application.  Parliament could not have intended that the Full Court would exercise its powers under s 350 to provide, as a matter of routine, a process for reviewing decisions by trial judges made in the ordinary course of trying a case.[10]

    [9] [1999] SASC 260, (1999) 106 A Crim R 423.

    [10] At [28].

24. The general purpose of section 350 suggests that it was not intended to authorise the stating of a question whether this Court would itself exercise the discretion in favour of or against a party as opposed to whether the exercise of the discretion in a particular manner involved or would involve error.

25. It is not necessary to reach a final conclusion on this issue of construction and it is preferable that the point be reserved for consideration in a case in which it necessarily arises. This is because in any event, for reasons which appear below, the trial Judge did not have available, and this Court does not have available, evidence or information about matters required by section 25 of the Act to be taken into account in the exercise of the discretion. This Court is therefore not in a position to determine whether it would have exercised the discretion in favour of exclusion. This Court is only in a position to determine whether the exercise of the discretion by the Judge involved error in accordance with the principles identified by the High Court in House v The King.

1. The question reserved should therefore be understood as being whether the exercise of the discretion by the Judge involved error in accordance with the principles identified by the High Court in House v The King.[11] Those principles were expressed by the High Court in the following terms:

   If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[12]

   [11] (1936) 55 CLR 499.

   [12]   At 505.

   The arguments on the case stated

2. It is common ground on the case stated that this Court should proceed on the assumption that the affirmations of the six Hong Kong Customs officers comprise “testimony” within the meaning of the Act and were admissible pursuant to section 24 of the Act subject only to exercise of the exclusionary discretion under section 25. It is appropriate to proceed on that assumption. This should not be understood, however, as signifying any acceptance that, if the point were contested, “testimony” within the meaning of the Act incorporates material in narrative as opposed to question and answer form nor that, if it does, the affirmations in the present case are adequate for the purpose of comprising “testimony”.

3. The Director’s principal contention is that it was not open on the material before the Judge to find that there were inconsistencies between the various statements or vagaries justifying a need for cross-examination of the Customs officers (an outcome error).

4. The Director also contends that the Judge’s reasons for the ruling were inadequate in three respects. First, the Judge referred generically to inconsistencies between the witness statements without making any findings about the specific inconsistencies alleged by Mr Yau during submissions. Secondly, the Judge dealt globally with all six statements rather than distinguishing between them. Thirdly, the Judge did not identify why there was doubt about the provenance of the crystalline substance.

5. The Director also contends that the Judge made three process errors. First, the Judge took into account an irrelevant consideration, namely that there was no opportunity to know what was the likelihood of some interference with, or innocent mistake in dealing with, the white substance. Secondly, the Judge failed to take into account a relevant consideration, namely that the position of the defence was that knowledge was the issue rather than the contents of the package. Thirdly, the Judge gave inadequate weight to the factors identified in paragraphs (a), (b), (d) and (e) and too much weight to the factor identified in paragraph (c) of subsection 25(2).

6. Mr Yau takes issue with each of the Director’s contentions and essentially repeats the arguments advanced before the Judge.

   Construction of section 25

7. Section 25 of the Act needs to be understood in context.

8. Part 2 of the Act provides for Australian courts to make orders for the examination of witnesses abroad. Section 7 empowers the High Court, Federal Court and Supreme Courts to make orders for examination of a person outside Australia, issue of a commission for examination of a person outside Australia, or issue of a letter of request to a foreign judicial authority to take evidence of a person. Section 9 empowers the relevant court to permit a party to tender as evidence in the proceeding the person’s evidence or a record of that evidence. Sections 9A to 12 create parallel regimes for the purpose of proceedings in inferior courts. Subsection 15(2) provides that, if it is in the interests of justice to do so, a court may exclude from the proceeding evidence obtained under Part 2 even if it is otherwise admissible.

9. Part 3 of the Act provides for the use of foreign material in criminal proceedings for an offence against the law of the Commonwealth (or, via regulation 4 of the Foreign Evidence (Foreign Material – Criminal and Related Civil Proceedings) Regulations 1994, against the law of a State or Territory) and related civil and proceeds of crime proceedings.

10. Section 3 of the Act defines foreign material for the purpose of Part 3 to mean:

    the testimony of a person that:

    (i)was obtained as a result of a request of a kind referred to in section 21; and

    (ii)complies with the requirements of section 22;

    including any exhibit annexed to such testimony

11. Division 2 of Part 3 addresses the obtaining of foreign material. It provides:

    Division 2—Obtaining foreign material

    21  Requests for foreign material

    This Part applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by or on behalf of the Attorney‑General to a foreign country for the testimony of a person, and any exhibit annexed to such testimony, to be made available.

    22  Requirements for testimony

    (1)     The testimony must have been taken:

    (a)     on oath or affirmation; or

    (aa)   under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or

    (b)     under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.

    (2)The testimony must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made.

    23  Form of testimony

    (1)The testimony may be reduced to writing or be recorded on a tape, disk or other device from which sounds or images are capable of being reproduced.

    (2)     The testimony need not:

    (a)     be in the form of an affidavit; or

    (b)     constitute a transcript of a proceeding in a foreign court.

12. Division 3 of Part 3 addresses the use of foreign material. Section 24 provides:

    24  Foreign material may be adduced as evidence

    (1)Subject to this section, foreign material may be adduced in a proceeding to which this Part applies.

    (2)     The foreign material is not to be adduced as evidence if:

    (a)     it appears to the court’s satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing; or

    (b)     the evidence would not have been admissible had it been adduced from the person at the hearing.

    (3)     Paragraph (2)(b) does not apply if:

    (a)     the foreign material is a business record; and

    (b)     the only reason why the evidence would not have been admissible had it been adduced from the person at the hearing is that an Australian law relating to hearsay evidence (however described) would have applied to the evidence.

    (4)For the purpose of determining whether foreign material is a business record, and may be adduced as evidence, the court may:

    (a)     examine the foreign material; and

    (b)     draw any reasonable inference from the form and contents of the foreign material as well as from any other matters from which inferences may properly be drawn.

13. Section 25 of the Act provides:

    Discretion to prevent foreign material being adduced—general

    (1)The court may direct that foreign material not be adduced as evidence if it appears to the court's satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence.

    (2)Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:

    (a)     the extent to which the foreign material provides evidence that would not otherwise be available; and

    (b)     the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and

    (c)     the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and

    (d)     whether exclusion of the foreign material would cause undue expense or delay; and

    (e)     whether exclusion of the foreign material would unfairly prejudice any party to the proceeding.

14. Several observations should be made about section 25.

15. First, the onus of proof and persuasion lies on the party objecting to the adducing of the foreign material in evidence.

16. Secondly, the five specific matters listed in subsection (2) are not exhaustive of the matters to be taken into account.

17. Thirdly, the ultimate criterion is whether justice is better served by the admission or non-admission of the foreign material, having regard to the interests of the parties. The essential task of the court is to weigh those factors supporting service of justice by admission having regard to the interests of the parties and in particular the party seeking to adduce the evidence, against those factors supporting service of justice by non-admission having regard to the interests of the parties and in particular the party opposing admission of the evidence. This involves an instinctive synthesis of the type used in sentencing. It does not involve giving mathematical or quantitative weight to individual factors.

18. Fourthly, a substantial failure to take into account any one of the five matters specified in subsection (2) will vitiate the exercise of the discretion but so will a failure to take into account a matter that materially bears on whether justice is better served by admission or non-admission of the foreign material having regard to the interests of the parties.

19. Fifthly, some of the specific factors identified in subsection (2) are phrased in a manner such that any weight attributed to that factor will weigh in favour of admission and against exclusion. This applies to paragraphs (a), (d) and (e). Paragraph (b) requires an assessment of the probative value of the foreign material: generally it may be expected that the higher the probative value the more this factor may weigh in favour of admission and against exclusion, but this is not necessarily so and there may be cases where high probative value weighs against admission. Paragraph (c) requires an assessment whether and to what extent there was an opportunity for the party opposing admission (or in some cases for any person) to question or cross-examine the person giving the testimony and whether and to what extent that occurred. Generally, it may be expected that, if there was no such opportunity, this factor will weigh against admission.

20. Sixthly, as a corollary of the second and third matters, a court should not be distracted by the five factors specified in subsection (2) from the overall task required by subsection (1) of weighing all relevant factors in favour of admission against all relevant factors in favour of exclusion. For example, while section 25(2)(e) refers only to unfair prejudice to a party as a result of exclusion of the evidence, a court should also have regard under subsection (1) to unfair prejudice to a party as a result of admission of the evidence and in many cases to prejudice to a party as a result of the admission or exclusion of the evidence whether or not it is also characterised as unfair.

21. Seventhly, commonly the principal factor in favour of admitting the foreign material will be that the evidence cannot otherwise be adduced or that substantial delay and/or expense will be occasioned by non-admission of the material. This will ordinarily require an assessment whether it is possible or practical to adduce the evidence otherwise and, if so, the delay and expense that would be occasioned thereby.

22. Eighthly, commonly the principal factor in favour of excluding the foreign material will be that the party against whom it is adduced will be deprived of the opportunity to cross-examine the person whose testimony is admitted under the Act. The right to cross-examine persons whose testimony is adduced by an opponent is an important component of a common law criminal trial.[13] Clearly Part 3 of the Act impinges on the right to cross-examine at trial but the deprival of the right to cross-examine remains a factor to be considered in the exercise of the discretion under section 25.

    [13]   See Wakeley v The Queen (1990) 64 ALJR 321 at 325 per Mason CJ, Brennan, Deane, Toohey and McHugh JJ; Lee v The Queen [1998] HCA 60, (1998) 195 CLR 594 at [32] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ.

23. Ninthly, in assessing the prejudice to a person as a result of admission of foreign material without cross-examination of the witness at trial, an important factor will be the opportunity that the person had to cross-examine the person when his or her testimony was originally given. In R v Reid,[14] testimony by five United States witnesses was admitted under the Act. The testimony was taken in New York in question and answer form, recorded audio visually and a transcript taken. The Director offered to permit the defendant to cross-examine the witnesses in New York and offered to pay the costs of his solicitor and counsel for this purpose, although agreement was not reached on the rates to be paid. The Victorian Court of Appeal held that the trial judge did not err in declining to exclude the evidence and that the defendant was afforded an adequate opportunity to cross-examine on the statements contained in the foreign material at the time they were made within the meaning of section 25(2)(c). In R v Marchando,[15] a ruling was made by the trial Judge that testimony by a United States witness would be admitted under the Act. The testimony was taken in question and answer form, via an audio visual link. Counsel for both the Director and the defendant appeared in Sydney and questioned the witness. The defendant sought to withdraw his plea of guilty following this ruling on the ground that the Judge should have rejected the evidence under section 25. The New South Wales Court of Appeal upheld the ruling refusing to allow the defendant to withdraw his guilty plea. These types of circumstances are very different to those in which there is no opportunity to cross-examine the person at the time when the testimony is given.

    [14] [1999] VSCA 98, [1999] 2 VR 605.

    [15] [2000] NSWCCA 8, (2000) 110 A Crim R 337.

    Separate consideration in respect of each witness

24. During the argument on the voir dire, counsel for Mr Yau contended that there were different deficiencies and/or discrepancies in relation to each of the six witness statements by reason of which Mr Yau should be entitled to cross-examine the deponents to the affirmations.

25. Sections 24 and 25 of the Act refer and apply to the “testimony of a person”. A court is required to assess the criteria for admissibility under section 24(2)(a) and (b) in respect of the testimony of each individual witness separately. A court is required to engage in the weighing process mandated by section 25 in respect of the testimony of each individual witness separately.

26. The Judge expressed the formal ruling as a single ruling declining to admit “the Hong Kong statements. In the Judge’s reasons for the ruling, the Judge treated the question of admission as all or nothing. The Judge did not refer to the statement of any one Customs officer or to any consideration specific to any one Customs officer. Although the Judge referred to inconsistencies identified by Mr Yau’s counsel and those inconsistencies varied according to the individual Customs officer, the Judge did not identify the inconsistencies his Honour found existed by reference to one Customs officer or otherwise.

27. The failure by the Judge to consider the exercise of the discretion under section 25 separately by reference to each individual Customs officer involved the Judge acting upon a wrong principle and thereby amounted to an error vitiating the exercise of the discretion in accordance with House v The King.[16]

    [16] (1936) 55 CLR 499.

28. The error by the Judge in this respect is not merely theoretical. As observed below, there was a marked difference between the evidence of Mr Lau and Mr Chan on the one hand and the evidence of the other four Customs officers on the other hand. If Mr Lau and Mr Chan had given evidence at trial clarifying the alleged vagaries and explaining the procedures adopted in their respective sections of the Customs Department, it may well have been that evidence of the other four officers under the Act would not have been excluded.

    Adequacy of reasons

29. The Director contends that the Judge’s reasons for the ruling were inadequate. While this complaint might afford a ground of appeal on an appeal by the Director under section 352(1)(ab)(ii) of the Criminal Law Consolidation Act 1935 (SA),[17] the question of adequacy of reasons does not directly arise on a case stated under subsection 350(4) of the Criminal Law Consolidation Act 1935 (SA). However, I address briefly the Director’s complaints because they are relevant to other issues that arise on the case stated.

    [17]   I express no view whether an appeal would lie under this provision in circumstances in which the Director has tendered no evidence following an adverse ruling by the trial Judge on the admission of evidence because the question does not arise.

30. The Director’s first complaint is that the Judge referred generically to inconsistencies between witness statements without making any findings about the specific inconsistencies alleged by Mr Yau during submissions. This complaint is justified. The existence of apparent material inconsistencies formed one of the two pillars relied on by the Judge as giving rise to doubt about the provenance of the white substance tested by Dr Lo, being the topic on which his Honour held that Mr Yau was entitled to cross-examine the witnesses. The Judge ought to have identified which of the alleged inconsistencies he accepted as apparent and material for this purpose. In addition, in order to consider separately the application to exclude the testimony of each Customs officer, the Judge was required to discriminate between inconsistencies applying to one Customs officer and not to others.

31. The Director’s second complaint is that the Judge dealt globally with all six statements rather than distinguishing between them. This has been addressed in the previous section.

32. The Director’s third complaint is that the Judge did not identify why there was doubt about the provenance of the crystalline substance. This complaint is not justified. It is clear that the Judge was giving two reasons for the existence of this doubt. First, the witness statements did not address the steps or procedures adopted by the Customs officers charged with custody of the material to prevent or minimise the likelihood of intentional or accidental interference with material. Secondly, inconsistencies between the different witness statements were not explained. While the second reason is the subject of the Director’s first complaint, if the Judge had identified the inconsistencies that he found and given reasons for the findings, this would also have identified why they gave rise to doubt about the provenance of the crystalline substance.

    Process errors

33. Although the Director’s principal contention is that the Judge made an outcome error, it is convenient to address first the alleged process errors as that analysis informs the analysis of the alleged outcome error.

    Ignoring a relevant consideration

34. The Director contends that the Judge failed to take into account a relevant consideration, namely that the position of the defence was that knowledge was the issue rather than the contents of the package and on the defence case there appeared to be no challenge to the fact that the crystalline substance was methamphetamine. This contention should be rejected.

1. The Director relies for this contention on an answer given by Mr Yau’s counsel to a question by the Judge during counsel’s submissions seeking exclusion of evidence of text messages extracted from Mr Yau’s phone. The Judge asked “is the issue in this case knowledge?” and counsel replied “yes, effectively, yes”. This was after the completion of submissions concerning admission of the six Customs officers’ affirmations.

2. As Mr Yau submits, it was clear from the application for exclusion of the affirmations and from the submissions made in support of that application that Mr Yau was putting the prosecution to proof concerning the chain of custody of the white substance found in the parcel. In addition, Mr Yau was running an affirmative defence that in any event he had no knowledge that the parcel contained methamphetamine.

   Taking into account an irrelevant consideration

3. The Director contends that the Judge took into account an irrelevant consideration, namely that there was no opportunity to know what was the likelihood of some interference with, or innocent mistake in dealing with, the white substance. The Director contends that the evidence left no room for such a finding and in any event this was a matter for the jury rather than a matter that affected admissibility.

4. The Director’s first contention should be rejected. The witness statements by each of the six Customs officers to a greater or lesser extent do not address the steps or procedures adopted to prevent or minimise the likelihood of intentional or accidental interference with material in their custody generally, or the material in this particular case. In the case of Mr Lau, he did not identify the location where he examined or kept the package between 10.00 am and 4.20 pm on 18 June 2014. In the case of Mr Lam, Mr Chong and Chan Kwok-leung, they said only that they kept the package in the Customs detention facility (G53) but did not describe the facility at all or identify how and in what part of the facility it was kept or secured. In the case of Mr Leung, he said only that he kept the package in Room 5T024 but did not describe the room at all or identify how and in what part of the room it was kept or secured. In the case of Mr Chan, he said that he locked the package in a storage cabinet at 3.25 pm on 19 June 2014 but did not clearly describe the whereabouts of the package before that time other than that he kept it in Room 5T024. None of the Customs officers, apart from Mr Chan, referred to any steps or procedures that were generally taken, or were taken in this particular case, to keep packages secure while they were in their general custody.

5. The Director’s second contention should also be rejected. If the witness statements had been admitted, Mr Yau could have addressed the jury concerning these matters at an abstract level. However, Mr Yau would have lost the opportunity to cross-examine the witnesses with a view to providing a foundation for addressing the jury at a concrete level based on evidence rather than conjecture. While it cannot be known whether this would have improved or been detrimental to Mr Yau’s case on this issue, the loss of the opportunity to cross-examine was a material factor required to be considered in the exercise of the discretion under section 25.

   Excessive or inadequate weight given to individual factors

6. The Director contends that the Judge gave inadequate weight to the factors identified in paragraphs (a), (b), (d) and (e) and too much weight to the factor identified in paragraph (c) of subsection 25(2).

7. Ordinarily, it is not an available ground to challenge on appeal the exercise of a discretion that the judge gave too much or too little weight to a particular factor.[18] This is for two reasons. First, a judge does not ordinarily identify how much weight is given to relevant factors but rather identifies the factors taken into account and how they are taken into account in a qualitative sense. Secondly, the exercise of a discretion usually involves an instinctive synthesis in which specific weight in a quantitative sense is not assigned to individual factors.

   [18]   R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144 at [36]-[47] per Vanstone and Parker JJ.

8. In the present case, the Judge did not assign specific weight to the factors taken into account referred to in subsection 25(2). There is no foundation for the Director’s complaint.

   Alternative courses if evidence excluded

9. As noted above, a curious feature of the argument on the voir dire was that no information was given to the Judge by the Director as to what steps the Director would or could take if the affirmations were excluded. The Director did not say whether an adjournment or deferral of the trial would be sought and if so for how long. The Director did not say whether supplementary affirmations from the Customs officers would or could be sought, whether an application would be made to call some or all of them to give evidence in or from Hong Kong or whether some or all of them would or could be called to give evidence in Adelaide. The Judge made no enquiry concerning these matters.

10. Although not directly relevant, another curious feature of the conduct of the matter by the Director was that, after the adverse ruling by the Judge, no application was made for an adjournment or deferral of the trial for the purpose of taking any of the steps referred to in the previous paragraph. It is also curious that instructions were not able to be obtained to enter a nolle prosequi.

11. Section 25(2)(a) prescribes as a factor required to be taken into account the extent to which the foreign material provides evidence that would not otherwise be available. It was not possible for the Judge to take into account or weigh this factor without knowing whether exclusion of each affirmation would have the practical result that the evidence would not be available at trial. In these circumstances, the Judge was required before exercising the discretion to make a finding about what steps could or would be taken to adduce the evidence by alternative means if the relevant affirmation were excluded. The Director ought to have provided this information to the Judge. However, the mere fact that the Director failed to do so did not relieve the Judge of the requirement to have regard to a mandatory consideration under section 25.

12. The importance of this consideration can be illustrated by examples. If a Customs officer had died, become incapacitated, could not be located or otherwise could not give evidence in any form, this would be a weighty factor in favour of admission of his affirmation. If a Customs officer could or would not travel to Adelaide but could give evidence in or from Hong Kong but this would be inappropriate in the circumstances, this would be a weighty factor in favour of admission of his affirmation.

13. Section 25(2)(d) prescribes as a factor required to be taken into account whether exclusion of the foreign material would cause undue expense or delay. It was not possible for the Judge to take into account or weigh this factor without knowing whether exclusion of each affirmation would have the practical result that the evidence would have to be adduced by the Customs officer attending in Adelaide or giving evidence in Hong Kong pursuant to Part 2 of the Act or by audio visual means from Hong Kong pursuant to section 59E of the Evidence Act 1929 (SA) and in turn assessing the extent of the delay and expense that would be occasioned thereby. In these circumstances, the Judge was required before exercising the discretion to make a finding about what steps could or would be taken to adduce the evidence by alternative means and with what delay and at what expense if the relevant affirmation were excluded.

14. Section 25(2)(e) prescribes as a factor required to be taken into account whether exclusion of the foreign material would unfairly prejudice any party to the proceeding. For the same reasons, the Judge was required before exercising the discretion to make a finding about what steps could or would be taken to adduce the evidence by alternative means and with what delay and at what expense if the relevant affirmation were excluded.

15. For example, if the only available or appropriate form in which a Customs officer could give evidence were by travelling to Adelaide, it would be necessary to assess the delay and expense that would be occasioned thereby. Alternatively, if it would be possible and appropriate for a Customs officer to give evidence in Hong Kong pursuant to Part 2 of the Act, it would be necessary to assess the delay and expense that would be occasioned thereby. Alternatively, if it would be possible and appropriate for a Customs officer to give evidence by audio visual means from Hong Kong pursuant to section 59E of the Evidence Act 1929 (SA), it would be necessary to assess the delay and expense that would be occasioned thereby, which would differ considerably to that occasioned otherwise. A further alternative that was raised by the Judge but not pursued would have been for clarification to have been sought from the Customs officer in question about apparent vagaries or inconsistencies in his statement and a supplementary statement provided.

16. What section 25 requires is a practical assessment of the alternative methods by which the evidence might be adduced if the foreign material is excluded.

17. The mere fact that the Director did not volunteer this information to the Judge does not detract from the requirement that the Judge take these matters into account as mandated by section 25.

18. If the Director had informed the Judge that time was needed to obtain information about these matters, the Judge could have determined whether an adjournment of the application should be granted for this purpose. The fact that Mr Yau had breached the Rules by making a very late application and that this information would have been available if the application had been made as required two weeks before trial would have been powerful factors in favour of an adjournment for this purpose.

19. The failure by the Judge to inquire into and make findings about what steps could or would be taken to adduce the evidence by alternative means and with what delay and at what expense if evidence of each affirmation were excluded involved the Judge failing to take into account a material consideration and thereby an error vitiating the exercise of the discretion in accordance with House v The King.[19]

    [19] (1936) 55 CLR 499.

    Outcome error

20. The Director’s principal contention is that it was not open on the material before the Judge to find that there were inconsistencies between the various statements or vagaries justifying a need for cross-examination of the Customs officers.

    Mr Lau

21. Mr Yau submitted to the Judge and repeated on the hearing of the case stated that there were four vagaries or inconsistencies in the witness statement of Mr Lau by reason of which Mr Yau should be entitled to cross-examine Mr Lau.

22. Mr Yau submitted that Mr Lau did not give any details of the two tests for “ice” he conducted or their results. However, the Director made it plain that it was not proposed to lead that evidence and reliance would be placed exclusively on the evidence to be given in person by Dr Lo. The inability of Mr Yau to cross-examine Mr Lau about these tests was incapable of causing prejudice to Mr Yau at trial.

23. Mr Yau submitted that Mr Lau’s statement that he commenced examining the parcel at 10.00 am was contradicted by the Hong Kong Post record showing arrival of the parcel at 10.17 am. However, Mr Lau’s statement was corroborated by the affirmation of the Hong Kong Post officer Lau Kwok-keung and by the business record they both created on 18 June 2014 being the Postal Package Examination Report. The screen dump annexed to Mr Lui’s statement does not clearly identify what is signified by the date and time recorded of 18 June 2014 at 10.17 am and Mr Lui’s statement does not clearly explain it. Any cross-examination of Mr Lau by putting the screen dump to him would have been very unlikely to have elicited a meaningful response. Considered in isolation, the inability of Mr Yau to cross-examine Mr Lau about these tests was incapable of causing significant prejudice to Mr Yau at trial.

24. Mr Yau submitted that Mr Lau did not give any details of how he derived the weight he recorded of 1.015 kg in circumstances in which Dr Lo recorded the weight of the white substance he received as 0.982 kg. The difference of 33 grams, considered in conjunction with the matter next addressed, gives rise to obvious questions that might be asked in cross-examination relevant to the possibility that the substance submitted to Dr Lo was not the substance found by Mr Lau in the T-shirt in the carton. Probable explanations include some of the original substance was used up in the presumptive tests conducted by Mr Lau and Mr Chan; Mr Chan left some of the original substance in the zip lock bag when he removed it the following day; the weights recorded by Mr Lau and Dr Lo were both rounded; the scales used by Mr Lau and Dr Lo were not identically calibrated; and Mr Lau weighed the two zip lock bags as well as the white substance (given that he listed the three as a single item with a single weight).  However, leaving aside the delay and expense associated with Mr Lau giving evidence in some form, the weight difference is a matter on which Mr Yau would be entitled to cross-examine.

25. Mr Yau submitted that Mr Lau gave no explanation of what he did with the parcel or how or to what extent it was secured between 10.00 am and 4.20 pm (other than his description of examining, testing and photographing it). Neither Mr Lau’s affirmation nor any of the affirmations by the three other Airmail Examination Unit Team members described the Customs detention facility (G53) or the precautions taken to prevent intentional or accidental confusion between different items stored in the room. Mr Lau does not say that he examined and kept the items in that room although this is a likely inference. The lack of any such description, considered in conjunction with the difference of 33 grams, gives rise to obvious questions that might be asked in cross-examination relevant to the possibility that the substance submitted to Dr Lo was not the substance found by Mr Lau in the T-shirt in the carton. It is probable that the Customs officers took precautions to avoid confusion between different items stored in the room. However, leaving aside the delay and expense associated with Mr Lau giving evidence in some form, this is a matter on which Mr Yau would be entitled to cross-examine.

26. It is not possible to weigh the prejudice to Mr Yau if the affirmation were admitted against the prejudice to the Director if it were not because there is no basis to assess whether Mr Lau could have been called to give evidence in Adelaide or in Hong Kong in person or by audio visual means for the reasons given above. It follows that the Director has failed to demonstrate an outcome error in respect of the Judge’s decision to exclude evidence of Mr Lau’s affirmation.

    Mr Lam, Mr Chong and Chan Kwok-leung

27. Mr Lau and Mr Chan were the only Customs officers who examined, tested or photographed the items comprising the package or did anything active to them. Mr Lam, Mr Chong and Chan Kwok-leung were merely passive custodians of the package during their shifts or part thereof.

28. Mr Yau submitted to the Judge that there was an inconsistency between the English translations of the statement of Mr Lam, who said that he handed over the package at 10.00 pm, and the statement of Mr Chong, who said that he received the package at 8.20 pm. However, the original Cantonese version of the statement of Mr Chong showed 22:00 (10.00 pm) and the reference in the English translation to 20:20 (8.20pm) was an obvious transposition error. The inability of Mr Yau to cross-examine Mr Lam or Mr Chong about the discrepancy in the English translations was incapable of causing prejudice to Mr Yau at trial.

29. Mr Yau submitted to the Judge that there was a vagary or inconsistency in the statement of Chan Kwok-leung who said that he had custody of the parcel between 8.05 am and 1.20 pm on 19 June 2014; whereas the Hong Kong Post record showed the item being made up for overseas parcel dispatch at 1.17 pm. The screen dump annexed to Mr Lui’s statement does not clearly identify what precisely is signified by the date and time recorded of 19 June 2014 at 1.17 pm and Mr Lui’s statement does not clearly explain it. It may well be a clerical rather than physical activity. Any cross-examination of Chan Kwok-leung by putting the screen dump to him would have been very unlikely to have elicited any useful response. The inability of Mr Yau to cross-examine Chan Kwok-leung about the Hong Kong Post record was incapable of causing significant prejudice to Mr Yau at trial.

30. Mr Yau submits that these three Customs officers gave no explanation of how or to what extent the package was secured while in their custody. The affirmations of the four members of the Airmail Examination Unit do not describe the Customs detention facility (G53) or the precautions taken to prevent confusion between different items stored in the facility. Leaving aside the delay and expense associated with these three Customs officers giving evidence in some form, this is a matter on which Mr Yau would be entitled to cross-examine.

31. It is not possible to weigh the prejudice to Mr Yau if each affirmation were admitted against the prejudice to the Director if it were not because there is no basis to assess whether each Customs officer could have been called to give evidence in Adelaide or in Hong Kong in person or by audio visual means for the reasons given above. The Director has failed to demonstrate an outcome error in respect of the Judge’s decision to exclude evidence of the affirmations of Mr Lam, Mr Chong and Chan Kwok-leung.

    Mr Chan

32. Mr Yau submitted that Mr Chan’s recorded file number of CID/2/35/14 in contrast to the file number of CEA/3/324/14 recorded by the four Customs officers in the Airmail Examination Unit suggested that Mr Chan received a different package to that examined by Mr Lau. However, Mr Lau and Mr Leung worked in the Drugs Investigation Section; whereas the other four officers worked in the Airmail Examination Unit. Mr Leung’s statement makes it clear that he renumbered the items using the file number and numbering system used by the Drugs Investigation Section which differed from that used by the Airmail Examination Unit. Moreover, the air waybill number recorded by Mr Chan matched that recorded by Mr Lau. In addition, the contents described by Mr Chan substantively matched the contents described by Mr Lau. The inability of Mr Yau to cross-examine Mr Chan about the file number was incapable of causing prejudice to Mr Yau at trial.

33. Mr Yau submitted that Mr Chan’s description of the contents differed from those of the Airmail Examination Unit because he omitted the Postal Package Examination Report (P7) and included a new item being the two zip lock bags (item (B1)). However, there was no reason for the Airmail Examination Unit to hand over to the Drugs Investigation Section the Postal Package Examination Report which was a document that the Airmail Examination Unit itself created after receipt of the package and did not form part of the package. It is clear that the “introduction” of item B1 merely represented the separate identification by Mr Leung of the combined item P1 comprising the white substance and the two zip lock bags. Mr Yau submitted that Mr Chan’s description of the contents differed from that of Mr Leung because he introduced a third zip lock bag. However, it is clear that all that Mr Chan did was to describe item B1 comprising both zip lock bags collectively as two separate items B1A and B1B and to number each zip lock bag separately. The inability of Mr Yau to cross-examine Mr Chan about the description of the items was incapable of causing prejudice to Mr Yau at trial.

1. There is no reason to read the facilitative provisions of Division 2 in any narrow way. However, the receipt of evidence under this division is subject to a broad exclusionary discretion under s 25 of the Foreign Evidence Act.[28]Under s 25(1) the Court may decline to receive the evidence if it appears, having regard to the interests of the parties, that justice would be better served if the foreign material were not adduced as evidence.

   [28]   R v Milne (No 1) (2010) 260 FLR 166 at [291].

2. In exercising this broad discretion, the Court is required to take into account the non-exhaustive list of matters in s 25(2)(a) to (e). Before addressing the application of these matters to the present case, it is useful to consider in closer detail the factual issues raised by the defendant in support of his contention that a close reading of the Hong Kong statements reveals doubt as to the integrity of the chain of custody of the substance located in the parcel destined for Adelaide. An understanding of the nature and significance of these factual issues will inform the application of the s 25(2) considerations, and in particular the nature and significance of the entrenchment upon the defendant’s ordinary right of cross-examination that would flow from admission of the Hong Kong statements as foreign material under s 24 of the Foreign Evidence Act.

   The factual issues arising from the Hong Kong statements

   The presumptive test issue

3. The defendant complained that, in the absence of Mr Lau as a witness, he would be deprived of the opportunity to explore in cross-examination the methodology and results of the presumptive “carbonium ions” test for methamphetamine used by Mr Lau.

4. However, the prosecution made it clear that it did not, and would not, seek to rely upon the presumptive test as evidence of the nature of the substance in the parcel.  The prosecution proposed to rely solely upon the evidence of Dr Lo for this purpose, with the relevance of Mr Lau’s evidence confined to the chain of custody.

5. In light of this acknowledgement by the prosecution, there was no relevant issue, and no scope for fertile cross-examination, in respect of the presumptive test that would or might bear on the integrity of the chain of custody relied upon by the prosecution.

   The arrival time issue

6. According to Mr Lau’s statement, he examined the parcel at “around” 1000 hours.  The defendant contrasts Mr Lui’s reference from the computer tracking system to the parcel arriving at the airport “at the recorded time at 10:17”.

7. The explanation for the apparent discrepancy in these times (i.e. the arrival time being later than the examination time) is likely to be that Mr Lau’s time was only approximate (to the nearest hour).  Alternatively, one or both of the times may have been an inaccurate statement of the time, or 1017 hours might have been the time at which the parcel’s arrival was recorded, rather than when it arrived.  While it is not possible to resolve this apparent discrepancy on the face of the statements, the discrepancy does not appear likely to be of great moment in terms of potentially impugning the integrity of the chain of custody relied upon by the prosecution.

   The passage of time issue

8. Mr Lau had custody of the parcel from around 1000 hours until he gave it to Mr Lam at 1620 hours.  In his statement, Mr Lau described his initial examination of the parcel.  He also described listing and photographing the items in the parcel at around 1200 hours.

9. However, Mr Lau’s statement did not set out in detail precisely what he did with the parcel during the balance of the period that it was in his custody.  In particular, when addressing the period between 1230 hours and 1620 hours, Mr Lau said merely that he “retained possession” of the evidentiary material.

10. It is not stated in Mr Lau’s statement what steps, if any, were taken by him to ensure the integrity of the chain of custody, and to ensure there was no scope for interference with the parcel.  Similar observations may be made in relation to the lack of detail in the other Hong Kong statements as to the steps and precautions taken to ensure the integrity of the chain of custody, and to ensure there was no scope for intentional or accidental interference with the parcel and its contents.  Some of the statements make reference to particular storage facilities used, but they provide no detail as to the nature of those facilities.

11. While it must be borne in mind that the Hong Kong witnesses were HKCE officers who would likely have understood the importance of maintaining the security and integrity of the parcel, there nevertheless remains some uncertainty on the face of the Hong Kong statements as to the nature and extent of the steps taken to ensure the integrity of the chain of custody.   

    The handover time issue

12. The defendant relies upon an apparent inconsistency between the time Mr Lam said he retained custody of the parcel on 18 June 2014 (until 2200 hours) and the time Mr Chong said he received the parcel from Mr Lam (2020 hours).

13. While Mr Chong’s translated statement does refer to him receiving the parcel at 2020 hours, the original Cantonese version of his statement contains a reference (in the equivalent place) to 2200 hours.  It appears that the discrepancy is the product of a mistranscription (i.e. reversal of the digits “2” and “0”) rather than anything that might cast doubt upon the reliability or accuracy, and hence probative value, of the chain of custody.

    The dispatch issues

14. Mr Ching-hong Chan described placing the parcel (minus the white crystalline substance) on a Cathay Pacific flight bound for Adelaide on 21 June 2014.  Mr Lui, on the other hand, annexed a document from the computer tracking system that referred to the parcel being made up for dispatch at 1317 hours on 19 June 2014, and being scheduled for delivery out of Hong Kong on 23 June 2014 on a flight bound for Melbourne.

15. The defendant relies upon the reference to the parcel being made up for dispatch at 1317 hours on 19 June 2014 as indicative of some handling of the parcel not otherwise mentioned in the statements of the HKCE officers, and hence potential for interference with the integrity of the chain of custody.  He also relies upon the discrepancy as to the time and flight destination of the dispatch of the parcel from the Hong Kong International Airport.

16. The explanation for the matters raised by the defendant may lie in the manner in which information is described and entered into the computer tracking system, rather than them being indicative of any inconsistency, or further handling of the parcel.  While the matters raised do not appear to raise any significant concern about the integrity of the chain of custody, it is not possible to definitively resolve them on the face of the statements.

    The weight difference issue

17. In Mr Lau’s statement, he referred to the suspected methamphetamine contained in the ziplock bags having a weight of 1.015 kg.  The postal packet examination report (prepared and signed 18 June 2014) attached to the statement referred to this as an approximate weight.

18. The Court has been provided with various affirmations and annexed documents from Dr Lo in relation to his analysis of the substance provided to him.  His documents include a form provided by HCKE which gave the weight of the substance submitted for testing as “Approx 1.015 kg”.  However, the documents also include a “Government Chemist’s Certificate” in which Dr Lo certified that on 19 June 2014 he received a sealed packet that contained 0.98 kg of a crystalline solid (of which 0.97 kg was methamphetamine hydrochloride). In other documentation provided by Dr Lo, those weights were given more precisely as 982.499 grams and 973.66908 grams respectively. 

19. The defendant points to the discrepancy between the weights given by Mr Lau and Dr Lo.  The explanation for the discrepancy (of about 33 grams) is not clear on the face of the statements and documents available to the Court.

20. The discrepancy may be explained by Mr Lau’s scales or weighing process being less accurate (bearing in mind the reference in the report attached to his statement to the weight as an approximate one).  It may be explained by the weight of the bag in which the substance was contained (Dr Lo’s records refer to a “bag weight” of 10.081 grams), on the assumption that Mr Lau weighed the substance in the ziplock bags whereas Dr Lo did not.  It may be explained by the use of some portion of the substance in the testing process.  In this respect I note a reference in Dr Lo’s documents to “34 [grams] of the solid was taken from the bulk as a sample.”[29]  Alternatively it may be explained by some combination of the above.

    [29]     Against this, there is elsewhere in those documents a reference to a “return weight” of 948.823 grams, which might suggest the sample was taken from the initial weight of 982 grams, rather than explaining the discrepancy between the HKCE references to a weight of approximately 1.015 kg and 982 grams.

21. It is not possible to resolve the weight issue on the face of the statements and documents provided to the Court.  It is significant, however, that Dr Lo was to be called to give oral evidence.  He may well have been in a position to resolve the discrepancy.  However, even if the discrepancy were not able to be explained by Dr Lo, the issue does not appear to be one of great significance.  It was not likely to cast any doubt upon the overall reliability or integrity of the chain of custody addressed by the Hong Kong statements.

    The file number issue

22. The statements of Mr Lau, Mr Lam and Mr Chong all referred to the parcel having an identification number CP 894 806 007 HK.  Each of these men (and Mr Kwok-leung Chan) also referred to a file number of CEA/3/324/14.

23. The statements of Mr Leung and Mr Ching-hong Chan, on the other hand, each referred to a file number of CID/2/35/14.  Each of Mr Lau, Mr Lam, Mr Chong and Mr Kwok-leung Chan worked within the air mail examination unit of HKCE, whereas Mr Leung and Mr Ching-hong Chan both worked in the customs drug investigation section of HKCE.  It appears that when custody of the parcel moved from the airport examination unit to the customs drug investigation section of HKCE, a different file number was assigned to the parcel.  The letters at the commencement of the two different file numbers support this explanation.

24. In any event, the difference in file numbers does not appear to be indicative of any breakdown in the chain of custody.  It does not provide any realistic basis for suggesting that the parcel referred to by the two different file numbers is not the same parcel.  To the contrary, each of Mr Leung and Mr Ching-hong Chan refer in their description of the contents of the parcel to CP 894 806 007 HK, which is the same as the parcel identification number given by Mr Lau,  Mr Lam, Mr Chong and Mr Kwok-leung Chan.  There is no doubt that it is the same parcel referred to throughout, despite the differing file numbers. 

    The parcel contents issue

25. The defendant also pointed to some differences in the way the parcel contents were described or listed in the various Hong Kong statements.  For example, Mr Lau listed the contents as including suspected methamphetamine contained in two ziplock bags, whereas Mr Leung referred separately to the suspected methamphetamine and the “ziplock bag contain CID/2/35/14(A) … quantity 2”, and Mr Ching-hong Chan referred separately to each of the suspected methamphetamine, “ziplock bag contain CID/2/35/14(A) … (2 nos)”, and an “outer ziplock bag” and an “inner ziplock bag contain CID/2/35/14(A)”.

26. Despite the slightly differing descriptions, it is clear the same items are being referred to.  In particular, Mr Ching-hong Chan’s list does not suggest the presence of additional ziplock bags.  It is clear from the table in which he lists the items in the parcel that the “outer” and “inner” bags are simply alternative descriptions of the two ziplock bags referred to earlier in his table, and referred to by Mr Lau and Mr Leung.  Indeed, in his statement, Mr Lau described the white substance as stored in “two transparent zip-lock bags.”  It is reasonable to infer (in light of Mr Ching-hong Chan’s statement) that one bag was inside the other.  It is also significant in this context that Mr Ching-hong Chan refers to dividing item 2 (ziplock bag) into two items, being items 3 (outer ziplock bag) and 4 (inner ziplock bag).

27. In any event, the identity of the parcel identification numbers and the description of the other items in the parcel (the t-shirt, pants, boxing trunks, carbon paper and carton box) provide confirmation that it is the same parcel referred to throughout the Hong Kong statements.

28. The defendant also noted Mr Lau’s reference to the parcel including a “postal packet examination report” which was not mentioned in later lists of the parcel’s contents.  There is no reason to think that anything turns on this.  The document in question appears to be one generated and completed by HKCE, and attached to Mr Lau’s statement.

29. In my view, the defendant did not identify any issue in respect of the parcel contents that was likely to have been productive of fertile cross-examination, or otherwise provide any reason to doubt the reliability of the chain of custody the subject of the Hong Kong statements.

    Summary

30. The defendant identified several factual issues arising on the face of the Hong Kong statements.  These issues would be the subject of legitimate cross-examination were the witnesses available for cross-examination.  However, the mere existence of factual issues that might be the subject of cross-examination is not determinative of the Court’s discretion to exclude the evidence.[30]  To the contrary, the provisions of the Foreign Evidence Act assume that in some cases the Court will receive foreign material despite the existence of issues that might otherwise be the subject of cross-examination. They assume the potential for some entrenchment upon the ordinary right of cross-examination. For that reason, in exercising its discretion to exclude such evidence under s 25, the Court must consider not merely the existence of such issues, but also make some assessment of their likely significance, and the likely significance of cross-examination in relation to those issues.

    [30]   R v Milne (No 1) (2010) 260 FLR 166 at [294], [301]-[303].

31. While it is apparent from his reasons that the trial judge made an assessment of the likely significance of the factual issues relied upon by the defendants, the trial judge’s reasons do not go beyond a general explanation of the overall nature of the issues and a general statement of their overall significance.  It would have been preferable if the trial judge had set out his reasons in a little more detail, and had addressed the factual issues individually.  However, in my view, bearing in mind the nature and timing of the application, the trial judge’s reasons were adequate.  I am not satisfied that he fell into error by not expressing his reasons, or conclusion, separately in relation to each factual issue.

32. In the context of this case, the assessment of the significance of the factual issues identified by the defendant required consideration against the background of the nature and content of the Hong Kong statements as a whole.  The evidence comprised by those statements is of a relatively formal nature, and consists of the testimony of independent persons engaged in the ordinary course of their roles as customs officials, and apparently conscious of the importance of maintaining the integrity of the chain of custody.  Taken as a whole, the statements provide a relatively detailed and precise account of that chain of custody.  Further, the defendant has not raised anything to suggest any positive basis or reason to suspect that there might have been some interference with, or breakdown in, the chain of custody.

33. Viewed against this background, and taken individually, the factual issues identified by the defendant are not of great moment.  While each involves an apparent discrepancy or gap in the detail provided in the Hong Kong statements, they do not appear to be matters that are likely to be of material significance to the integrity of the chain of custody, or that would likely be the subject of fertile cross-examination.

34. However, there are two reasons for some caution.  The first is that while the factual issues relied upon by the defendant do not appear on the face of the statements to be matters of much moment, it must be acknowledged that the true significance of the discrepancies and gaps cannot be known without more information – either from additional or clarificatory statements, or from cross examination of one or more of the Hong Kong witnesses.  The second is the number of issues identified by the defendant.  The cumulative effect of the discrepancies and gaps is of course greater than their individual effect.

35. Further, and while it is implicit in my reasons to this point, I do not accept that the presence of the controlled drug in the parcel at the relevant time (and hence the integrity of the chain of custody) was not an issue in the case.  While defence counsel referred to the issue in the case being the defendant’s knowledge of the controlled drug, taken in its context this was not intended to foreclose the existence of other issues in the case.  The defendant was entitled to, and by his application to exclude the Hong Kong statements he evinced an intention to, put the prosecution to proof on the issue of the presence of the controlled drug at the relevant time.  The integrity of the chain of custody was thus an issue in the case.

    Analysis

36. Before considering the trial judge’s exercise of the discretion to exclude the Hong Kong statements under s 25 of the Foreign Evidence Act, I make two observations. 

37. The first observation is that the discretion was not required to have been exercised the same way across all of the Hong Kong statements.  The discretion might have been exercised so as to admit some statements and exclude other statements.  Indeed, it might have been exercised so as to admit or exclude particular passages from within one or more of those statements.  That said, in circumstances where the statements were closely related (and to some extent overlapping) in their subject matter, the exclusion of one or more of the statements in this case would likely have impacted significantly upon the probative force of the other statements. For this reason, I consider that the trial judge was entitled to approach the matter on the basis that for practical purposes the applications to exclude the six statements might stand or fall together.  Put another way, while ordinarily it would be necessary for the trial judge to address each item of evidence separately, I am not satisfied in the particular circumstances of this case that the trial judge erred in merely expressing an overall conclusion in relation to the six statements rather than expressing separate conclusions in relation to each.

38. The second observation is that the timing of the application to exclude the evidence in this case was significant. As mentioned, the defendant had notice of the content of the Hong Kong statements, and that the prosecution intended to tender them under s 24 of the Foreign Evidence Act, almost a year before the trial. If the defendant had provided advance notice of his intention to seek the exclusion of that evidence under s 25 of that Act, and of the factual issues upon which he relied in support of that exclusion, then the prosecution may well have been able to obtain clarification of those factual issues through one or more supplementary statements. Alternatively, the prosecution may have been able to arrange for one or more of the witnesses to be available for cross-examination (either in person, or by video link). By only providing notice of his application four days prior to the commencement of the trial, the defendant effectively deprived the prosecution of the opportunity to explore these possibilities without there being an adjournment of the trial. Given that the statements were the product of a request by the Commonwealth Attorney-General, it can be inferred that the exploration of further cooperation of the witnesses would likely have taken some time and have required an adjournment of the trial.

1. I have earlier made some general observations as to the nature of the discretion under s 25 of the Foreign Evidence Act. Turning to the individual matters that must be considered under s 25(2) of the Act, s 25(2)(a) requires that the Court take into account the extent to which the foreign material provides evidence that would not otherwise be available. In this case the Hong Kong statements are the only source of evidence of the chain of custody the subject of those statements. The trial judge thus concluded that the prosecution would be unable to prove that the substance in question was methamphetamine without the Hong Kong statements.

2. As to the probative force of the Hong Kong statements for the purposes of s 25(2)(b) of the Act, this requires a prospective assessment of the extent to which the evidence in the statements, if accepted, would be capable of assisting in establishing a matter in issue in the proceedings.[31] 

   [31]   IMM v The Queen (2016) 90 ALJR 529 at [35]-[52].

3. I consider that the Hong Kong statements have a high probative value with respect to an issue in the proceedings, namely the chain of custody.  On their face, and in combination, the Hong Kong statements describe an unbroken chain of custody from identification of the suspicious parcel, through to the provision of the white substance to Dr Lo’s laboratory and the placing of the balance of the parcel on a flight to Australia.  While the factual issues relied upon by the defendant are capable of bearing upon the precise weight or cogency that might ultimately be afforded to this chain of custody evidence, for the reasons set out earlier, I do not consider that they are of sufficient moment to undermine my conclusion that the Hong Kong statements are of high probative value in relation to the integrity of the chain of custody.

4. Under s 25(2)(c), it is necessary to consider “the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them”. The language of this subsection appears more naturally addressed to a situation in which foreign material is in the form of a record of oral evidence. However, applying the language to the present situation, this subsection requires consideration of the extent to which the makers of the Hong Kong statements might be challenged by questioning or cross-examination.

5. If a court is persuaded that the maker of a statement to be adduced as foreign material under s 24 of the Act might be the subject of cross-examination that has a reasonable prospect of being fertile (in the sense of impacting the probative force of the relevant evidence), then this would weigh in favour of an exercise of the discretion to exclude the relevant statement. On the other hand, if a court is not persuaded that the maker of the statement would be the subject of cross-examination on other than formal or peripheral matters, or matters of detail, then this would weigh against an exercise of the discretion in this way.

6. As Johnson J explained in R v Milne (No 1),[32] the use of the word “challenged” in s 25(2)(c) is significant. It supports the view that the focus is upon questioning or cross-examination that might call into question the reliability of the foreign material, and not questioning or cross-examination designed merely to ascertain more information or address matters of detail.

   [32]   R v Milne (No 1) (2010) 260 FLR 166 at [302]-[303].

7. For the reasons set out earlier, it has not been established that any cross-examination of the makers of the Hong Kong statements is likely to be fertile in the sense of tending to impugn the integrity of the chain of custody relied upon by the prosecution.  However, as I have also mentioned, some caution is appropriate in the context of this case.

8. Turning to s 25(2)(d), this requires consideration of whether exclusion of the foreign material would cause undue expense and delay. For the reasons explained earlier, given the timing of the application in this case, exclusion of the Hong Kong statements was likely to occasion some expense and delay. As the initial statements were obtained following a request from the Commonwealth Attorney-General, it is reasonable to infer that some formalities or process would have been necessary to obtain further statements from the relevant witnesses. It is unlikely that this could have been arranged in a time sufficient to allow the trial to proceed. As for the possibility of one or more of the witnesses being made available for cross-examination, either in person or by video link, there is no evidence upon which this Court can determine whether this would have been possible and within what sort of timeframe. While it cannot always be assumed that overseas witnesses will be available for cross-examination, at the same time the evidence does not permit a positive conclusion that this could not have been arranged in this case. All that can be said is that there was some possibility that the witnesses, or some of them, might have been available for cross-examination, but that this would have involved some expense, and would probably have resulted in delay requiring an adjournment of the trial.

9. Finally, s 25(2)(e) of the Foreign Evidence Act requires consideration of whether exclusion of the foreign material would unfairly prejudice any party to the proceeding. Exclusion of the foreign material was likely to result in some unfair prejudice to the prosecution in the sense that the late timing of the application meant that exclusion of the evidence left it without the opportunity to seek to address or rectify the factual issues or anomalies identified by the defendant without an adjournment of the trial. This was not a case where the evidence in question was inherently unsuitable for admission under s 24. To the contrary, the nature of the matters said to support exclusion of the statements were such that they may well have been capable of being addressed had the prosecution been given sufficient notice of the objections and the factual issues relied upon in support of those objections.

10. It can thus be inferred that exclusion of the foreign material would unfairly prejudice the prosecution to the extent of requiring that it seek an adjournment of the trial if it intended to proceed with the case.  Given that the need for an adjournment was at least in part a consequence of the late timing of the defendant’s application, the defendant could hardly have complained about the need for a modest adjournment.

11. However, the evidence before the trial judge did not permit a more precise assessment of the nature and extent of the prejudice likely to be suffered by the prosecution.  There was no evidence as to whether the prosecution was likely to be able to obtain clarificatory statements or make one or more of the Hong Kong witnesses available for cross-examination (in person or by video).  Nor was there any evidence as to the likely time and expense associated with these steps.  In the absence of evidence as to these matters, the trial judge was unable to make a proper assessment of the prejudice to the prosecution.  His Honour was not in a position to determine whether the prosecution would for practical purposes be forced to enter a nolle prosequi or to tender no evidence, or whether it would be feasible for the prosecution to obtain further statements from the Hong Kong witnesses or make one or more of them available for cross-examination.  If the latter, while the trial judge could infer the need for an adjournment, his Honour was not in a position to determine the length of the adjournment likely to be required by the prosecution.

12. The list of considerations in s 25(2) is not intended to be exhaustive. An obvious additional consideration is whether admission of the foreign material would likely result in unfair prejudice to the defendant. In the circumstances of this case, it might be said that there would be unfair prejudice in the sense that the defendant would be deprived of his ordinary opportunity to cross-examine the makers of the Hong Kong statements. While this is a relevant consideration, it does not add anything to the matters already considered, and in particular the consideration of the likely utility of any cross-examination under s 25(2)(c).

13. Drawing the above threads together, the issue remains whether, having regard to the interests of the parties, justice would be better served if the foreign material were not adduced as evidence.  The application was finely balanced.

14. On the one hand, it is significant that the Hong Kong statements were of a relatively formal nature, and had a high probative value.  While the defendant identified a number of factual issues associated with the statements, it does not appear on the face of the statements that any of these issues was individually likely to be of great moment.

15. On the other hand, it is not possible to be definitive about the precise significance of the factual issues relied upon by the defendant in the absence of clarificatory statements or cross-examination. It is also appropriate to have regard to the cumulative effect of the factual issues relied upon. While s 25 assumes the appropriateness in some cases of an entrenchment upon the usual right of cross-examination, in cases where there is likely to be a material entrenchment it is necessary to give close consideration to the unfair prejudice likely to be suffered by the prosecution if the evidence were to be excluded. It is in this context that the failure of the prosecution in this case to adduce any evidence as to the likely nature and extent of any prejudice (beyond the need for a modest adjournment) was critical.

16. If the prosecution had adduced evidence to the effect that it was not possible or practical to obtain clairficatory statements, or to make some or all of the Hong Kong witnesses available for cross-examination in person or by video link, then this may well have warranted, if not required, rejection of the defendant’s application to exclude the foreign material.  The same may well have been true if a lengthy adjournment would have been required.  However, on the evidence in this case, all that the trial judge could infer was that some adjournment of the trial would be necessary.  It may be that a period of a few weeks would have been sufficient to obtain clarificatory statements or make some or all of the Hong Kong witnesses available for cross-examination.  That is particularly so when it is borne in mind that resolution of the factual issues may have been possible without needing statements from, or cross-examination of, all of the Hong Kong witnesses.

17. In summary, and bearing in mind the breadth of the discretion under s 25, error of the type required by House v The King has not been established.  To the extent that these reasons suggest that I would have attached less weight to the significance of the factual issues and the consequential entrenchment upon the defendant’s ordinary right of cross-examination than the trial judge did, and more weight to the prosecution’s failure to establish the nature and extent of any prejudice beyond a short adjournment of the trial, that is not sufficient to establish error of the type required by House v The King.  I am not satisfied that the trial judge made any material error of fact or principle, or overlooked any relevant consideration.  Nor am I satisfied, bearing in mind the breadth of the discretion, that the trial judge’s exercise of the discretion was plainly wrong, in the sense of it being a decision that no reasonable trial judge could properly have reached. 

    Conclusion

18. The trial judge did not err in excluding the Hong Kong statements under s 25 of the Foreign Evidence Act. The question reserved by way of case stated for consideration by this Court should be answered “yes”.