Shozo Maeda v Director of Public Prosecutions (Cth)
[2015] VSCA 367
•22 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0112
| SHOZO MAEDA | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and OSBORN JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 19 November 2015 | |
| DATE OF JUDGMENT: | 22 December 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 367 | 1st Revision 31 March 2016 [60], [61] |
| JUDGMENT APPEALED FROM: | DPP v Maeda (Unreported, County Court of Victoria, Judge Murphy, 14 May 2015) | |
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CRIMINAL LAW – Appeal – Conviction – Evidence – Importation of border-controlled substance – Applicant interviewed by Customs officers – Implied admissions during interview – Interview not recorded – Whether evidence admissible – Whether applicant ‘questioned as a suspect’ – Leave to appeal refused – R v Raso (1993) 68 A Crim R 495; Nabole v The Queen [2014] VSCA 297 applied – Crimes Act 1914 (Cth) s 23V.
CRIMINAL LAW – Appeal – Conviction – Post offence conduct – Evidence of incriminating conduct – Statutory requirement of notice – Admissions relied on not specified in notice – No issue taken at trial or on appeal – Directions to jury – Sections 23, 24, 25 Jury Directions Act 2013 – Lowe v The Queen [2015] VSCA 327 referred to.
CRIMINAL LAW – Appeal – Sentence – Parity – Co-offender received lower sentence – Differences in role, culpability, prior convictions – Sentencing differential reasonably open –Leave to appeal refused.
WORDS AND PHRASES – ‘suspect’, ‘questioned as a suspect’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich | James Dowsley and Associates |
| For the Respondent | Mr D Holding | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
MAXWELL P
REDLICH JA
OSBORN JA:
Summary
The applicant and Yoshitaka Hamada (‘Hamada’), both Japanese citizens, arrived at Melbourne Airport on the same flight from Thailand. On arrival, Hamada was detained by Customs officers for a non-medical internal scan, which returned a positive result. Hamada subsequently passed (through bowel movements) a total of 100 pellets, each consisting of compressed powder shown to be 64 per cent pure heroin. The powder weighed a total of 501 grams, with 320 grams of pure heroin.
The applicant was convicted after a trial of importing a marketable quantity of a border-controlled drug. He was convicted on the basis that he jointly committed the offence with Hamada. He was sentenced to nine years and six months’ imprisonment, with a non-parole period of six years and four months. Hamada pleaded guilty to the same offence and was sentenced to six years’ imprisonment, with a non-parole period of three years and six months.
The applicant now seeks leave to appeal against his conviction and sentence. For the reasons that follow, we would refuse leave to appeal.
The sole ground of appeal against conviction is that alleged admissions, which the applicant made to Customs officers during an interview, were not recorded as required by s 23V Crimes Act 1914 (Cth). Whether the interview had to be recorded depended on whether the applicant was being ‘questioned as a suspect’ within the meaning of s 23V. The judge concluded that he was not, a conclusion with which we respectfully agree.
Circumstances of the offending
On 22 August 2014, the applicant and Hamada arrived at Melbourne Airport on the same flight from Thailand. At around 12:20 pm, the applicant was selected at the ‘primary line’ for a baggage examination, as was Hamada. The Customs officers who had selected the two men for examination discussed similarities in their travel documents, noting that both appeared to be staying for approximately a week in Australia after having spent a similar time in Thailand. This was regarded as ‘a bit unusual’ by Customs Officer Gatt (‘Gatt’). In his experience, Japanese tourists tended to travel on holiday for only a week at a time.
During the baggage examination, the applicant was questioned by Gatt without an interpreter (‘the baggage interview’). The applicant said that he had been travelling alone in Thailand and had decided, whilst in Thailand, to come to Australia. Hamada was similarly questioned by another Customs Officer, Aguilar (‘Aguilar’). Amongst other things, Hamada said that he was travelling alone, and that he had met the applicant by chance, at Osaka International Airport in Japan, before their flight to Thailand.
Gatt and Aguilar then had discussions and noted similarities in the travel documents which suggested that the applicant and Hamada may have been travelling together. The itineraries revealed that the applicant and Hamada had each spent six days in Thailand before booking tickets to Australia. They had booked their tickets at the same travel agency and on the same day (although at different times).
In his conversation with Gatt, the applicant initially said that he was travelling alone in Thailand for a short holiday and that, while he was there, he had decided to extend the holiday by booking a trip to Australia. Gatt then discovered in the applicant’s baggage a completed ‘Outgoing Passenger Card’ with Hamada’s details filled in. When asked about the card, the applicant said that he had met Hamada on the plane and had helped him complete the form.
Gatt subsequently spoke to his supervisor, Customs Officer Vegiard-Crompton (‘Vegiard-Crompton’). They discussed the possibility that the applicant had been travelling with Hamada. An ‘ion scan swab’ was then conducted on the luggage and phones of the applicant and Hamada. Both produced a ‘presumptive positive result’ for ephedrine, a border-controlled drug. Vegiard-Crompton directed Gatt and another Customs officer to escort Hamada to a search room and to interview him about his travels.
Vegiard-Compton then directed Gatt and Aguilar to question the applicant through the use of a telephone interpreting service. The questioning took place between 1:58 pm and 2:59 pm. The interview was conducted by Gatt and Aguilar shortly after the examination of the applicant’s baggage, but prior to the frisk search and non-medical internal scan described below.
During the questioning (‘the interpreter interview’), Gatt made notes of things said by the applicant. In relation to Hamada, the applicant said that:
(a) they had met on the plane from Thailand to Australia;
(b) he had helped Hamada complete the incoming passenger card;
(c) he had met Hamada in Thailand; and
(d) he and Hamada had spent time together in Thailand.
Aguilar then told the applicant that Hamada had stated that they had met in Japan. The applicant responded, ‘Whatever he said is correct.’
Following both interviews, Hamada was detained for a non-medical internal scan, as was the applicant. Before the applicant’s scan was conducted, Vegiard-Compton was advised that the result of Hamada’s scan was positive. As a result of this positive result, the applicant was immediately advised of his rights and cautioned. He then underwent a frisk search. The applicant’s subsequent non-medical scan was negative, and no drugs were found in his possession.
Prosecution case
The combination of circumstantial evidence relied on by the Crown (as summarised in the prosecution summary of opening) was as follows:
(e) travel documents, booking records, notebooks, and phone records proving that the applicant and Hamada were travelling together;
(f) CCTV footage in the airport depicted the applicant separating himself physically from Hamada;
(g) when the applicant was questioned by Customs officials, he falsely claimed he did not know Hamada and then falsely claimed that he had met Hamada on board the plane to Australia;
(h) subsequent CCTV footage of the examination of the applicant’s baggage, and of Hamada’s baggage, indicated that at one point the applicant appeared to make discreet gestures to Hamada, pointing to his own stomach, then making a downward motion with his hands; and
(i) a notebook found in the applicant’s possession had Japanese characters on one page that, when translated, appeared to be notes relating to the price of heroin and, on another page, seemed to relate to the counting of items at various intervals of time, before departure for an airport.
Defence case
The applicant denied importing a border-controlled drug or acting in concert with Hamada to do so. He submitted that there were reasonable explanations, consistent with innocence, for the circumstances relied on by the Crown. As to the false denials the subject of this appeal, they were said to be the result of misunderstanding and cultural differences. In his closing address, counsel for the applicant said that the false denials could be explained on the basis of a misunderstanding as to why he was being questioned as to his relationship with Hamada:
If you’re in Mr Maeda’s position you might have been scratching your head about why on earth would Custom officers want to know about my relationship with Mr Hamada; where I met him, whether he’d been on the plane with me, whether he’d been in Thailand with me. Are they worried that I’ve got some sort of relationship with him that’s illegal in Australia? Why are they travelling together? That’s the initial suspicion, according to the Crown.
It’s conceded by the Crown that in the initial discussion between Mr Gatt and Mr Maeda there could have misunderstandings. It’s conceded that Aguilar and Gatt co-operated with their statements. It’s conceded that Aguilar only made his notes on Monday and that Gatt’s notes are paraphrased and summarised. But it’s said to you they couldn’t get a straightforward response from Mr Maeda. You might think in the circumstances in which he was interviewed that’s not unusual.
Implied admissions
The applicant now seeks leave to appeal against his conviction on the following ground:
A substantial miscarriage of justice occurred as a result of the learned trial judge admitting into evidence alleged admissions which were not recorded as required by s 23V of the Crimes Act 1914 (Cth).
In the applicant’s written case, and during oral argument on appeal, the applicant particularised ground 1 as follows:
The [asserted] admission(s) by the applicant was the statement that ‘whatever Hamada said about how they met was correct.’ That statement was made in response to earlier questioning (i.e. prior to the telephone interpreter interview) about the applicant’s statement of meeting Hamada on the plane and on being told that Hamada had said that they had met in Japan.
During the hearing of the appeal, counsel for the applicant was asked to specify the statements that should have been recorded. In a supplementary submission, the applicant conceded that the particularisation of the ground in this respect was ‘unduly narrow’, and argued that
[t]he essence of the proposed ground of appeal is that a substantial miscarriage of justice was caused by the admission of alleged lies in the unrecorded interpreter interview when viewed in the context of what was said before the commencement of the interpreter interview.
It is therefore necessary to identify each of the statements made by the applicant which the Crown relied on as constituting an implied admission. They are as follows:
The baggage interview
1.The applicant said during the baggage interview that he travelled alone in Thailand.
2.The applicant said during the baggage interview that he had met Hamada on the plane and helped him with his incoming passenger card.
The interpreter interview
3.The applicant during the interpreter interview again said that he had met Hamada on the plane and helped him with his incoming passenger card.
4.The applicant said during the interpreter interview that he met Hamada in Thailand and they spent time together there.
5.During the interpreter interview when confronted with the fact that Hamada had told officers they had met in Japan, the applicant then said, ‘Whatever he said is correct’.
(For ease of reference, we will refer to these statements as ‘statement 1’, ‘statement 2’ and so on.)
Legal framework: s 23V
The applicant submits that, at the time of statements 3, 4 and 5, he was being ‘questioned as a suspect’ within the meaning of s 23V Crimes Act 1914 (Cth). That section provides as follows:
(1) If a person who is being questioned as a suspect … makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission -- the questioning of the person and anything said by the person during that questioning was tape recorded; or
(b) in any other case:
(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and
(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and
(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and
(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and
(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).
(2) If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:
(a) if the recording is an audio recording only or a video recording only -- make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and
(b) if both an audio recording and a video recording were made -- make the audio recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and
(c) if a transcript of the tape recording is prepared -- make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.
(3) Where a confession or admission is made to an investigating official who was, at the time when it was made, engaged in covert investigations under the orders of a superior, this section applies as if the acts required by paragraph (1)(b) and subsection (2) to be performed were required to be performed by the official at a time when they could reasonably be performed without prejudice to the covert investigations.
(4) Despite any arrangement made under the Commonwealth Places (Application of Laws) Act 1970 , this section applies to any offence under a law applied by that Act if the investigating official is a member or special member of the Australian Federal Police.
(5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
(6) A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.
(6A) To avoid doubt, subsection (6) does not limit subsection (5).
(7) If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.[1]
[1]Emphasis added.
As Redlich JA explained in Nabole v The Queen,[2] s 23V would require the exclusion of unrecorded statements by an accused if:
(i) the statements constituted ‘admissions’ for the purposes of s 23V;
(ii) the appellant was being questioned as a suspect by an investigating official at the time of making the statements; and
(iii) no exception to the obligation to tape record the statements applied.
[2][2014] VSCA 297 [17] (‘Nabole’).
In the defence opening at the commencement of the trial, the defence conceded that the applicant and Hamada had travelled together. Thus, if the jury were satisfied that the applicant had made the alleged statements 1-4, the jury would inevitably have concluded that they were false.
The judge’s ruling
Well prior to the judge’s ruling under s 23V, the Crown had filed a Notice of Incriminating Conduct, as required by s 23(1) of the Jury Directions Act 2013 (‘JDA 2013’). The Notice identified the relevant conduct as follows:
a.[the applicant] physically distancing himself from Hamada as they alighted flight TG465 at Melbourne International Airport;
b.[the applicant] making hand gestures to Hamada at the Customs examination benches; and
c.[the applicant] stating that whatever Hamada had said about how they met was correct.
It can be seen that, of the five statements listed earlier, only statement 5 was included in the Notice.
On day five of the trial, the defence sought to exclude all five statements. In his ruling, the judge summarised the applications as follows:
The statements that are sought to be excluded were made in the course of the officer seeking to ascertain the travel bona fides of the accused and Mr Hamada. The prosecution in the case seeks to rely on statements made by the accused as constituting false denials and evidencing a consciousness of guilt to assist in proving its case that the accused was complicit with Mr Hamada in the importation of a border-controlled substance.
The statements made in the baggage interview that are sought to be relied on by the prosecution … were essentially twofold: first, that the accused was travelling alone in Thailand for a short holiday and, secondly, that he had met Mr Hamada on the plane. It is the prosecution case it is in a position to prove that both of the statements were false and that they were made in a consciousness of guilt of the offence charged.
The prosecution will seek to prove the falsity of the first statement as a result of the undisputed admission by the accused subsequently that, in fact, he was travelling with Mr Hamada. In relation to the second statement, the prosecution will seek to lead an admission from the accused during the course of the interpreter interview, wherein, when asked about meeting Mr Hamada on the plane and being told that Mr Hamada had stated that they had met in Japan, the accused had said, ‘[w]hatever he said is correct.’
The defence sought to exclude statements 1 and 2 (made during the baggage interview) as unreliable, under s 85 of the Evidence Act 2008. The judge rejected that submission. That ruling is not challenged on the appeal.
The application to exclude statements 3, 4 and 5 (made during the interpreter interview) was based on s 23V. The defence submission was that the applicant was a suspect at the time of the interview, and, accordingly, the statements should have been recorded.
Counsel for the applicant submitted that ‘many factors meant objectively that [he] was a suspect by this time.’ Those factors were said to include the following:
(i) the recently issued tickets for both Hamada and the applicant from Thailand;
(ii) both men’s planned short stays in Australia;
(iii) a recent visa for Hamada;
(iv) inconsistencies about where the applicant was to stay during his trip;
(v) the applicant and Hamada’s arrival from Bangkok, being a high-risk port;
(vi) documents suggesting the men were travelling together while they presented separately at the Customs line;
(vii) both men possessing Imodium, a drug to stop defecation; and
(viii) positive ion scans for ephedrine, a border-controlled drug.
The Crown relied upon Nabole and on R v Raso[3] to support its contention that the applicant was not being ‘questioned as a suspect’ when the implied admissions were made. Those cases distinguish the investigation of a possible offence from circumstances where a person is suspected of committing an offence. The Crown contended that the present case fell into the first category. That is, at the time of the interpreter interview, the officers were investigating a possible offence. The Crown submitted that, at that time, Customs officers were still attempting to ascertain whether the applicant and Hamada were travelling together. Further, it was submitted, Vegiard-Crompton relied upon the answers given through the telephone interpreter as part of the ‘reasonable grounds’ required under s 219L of the Customs Act 1901 (Cth) to progress to the stage of detention for the purposes of a frisk search.
[3](1993) 68 A Crim R 495 (‘Raso’).
The trial judge upheld the Crown submission. His Honour found the circumstances comparable to those in Raso and Nabole, holding that until the objects were detected in the stomach of Hamada, it could not be said that the applicant was being questioned as a suspect. The scan which detected the anomaly in Hamada’s stomach occurred after the interpreter interview.
Accordingly, the trial judge concluded that, at the time of the interpreter interview, the applicant was being questioned in the context of an investigation of a possible offence. Citing Nabole, Raso, George v Rockett,[4] and Heaney v The Queen,[5] his Honour said:
Here … the question can be asked whether at the time that the appellant was questioned in the interpreter interview whether the offence of importation of a prohibited drug had been established. I am satisfied at that point it could not be so said because the drugs had not been identified in Mr Hamada’s stomach.[6]
[4](1990) 170 CLR 104.
[5][1992] 2 VR 531 (‘Heaney’).
[6]Unrevised ruling of Judge Murphy, 5 May 2015, 287–288.
Did the statements constitute ‘admissions’?
While the term ‘admissions’ is not defined by the Crimes Act 1914 (Cth),[7] it is well established that the telling of a lie by an accused is conduct capable of constituting incriminating conduct and, therefore, an implied admission.[8] In Nabole, Redlich JA noted that the question whether ‘admission’ within s 23V included an implied admission had not been resolved. His Honour said:
Neither ‘confession’ nor ‘admission’ is defined in the Crimes Act. No authority need be cited for the long established common law proposition that an exculpatory lie, namely a false denial or false assertion of fact, may constitute an implied admission if it reveals a realisation or consciousness of guilt by the maker of the statement. But differing views have been expressed as to whether the term ‘admission’ in various statutes also includes this form of admission. R v Bertrand contains the following pertinent footnote:
The New South Wales Court of Criminal Appeal has consistently held that where evidence of a lie told by the accused is adduced as consciousness of guilt, the evidence constitutes an admission within the meaning of the Evidence Act 1995 (NSW): R v Esposito(1998) 45 NSWLR 442 at 459–60 per Wood CJ at CL; R v Adam(1999) 106 A Crim R 510 at 517–23; R v Esho[2001] NSWCCA 415 at [129]–[130]; and R v Fernando[1999] NSWCCA 66. To the same effect is R v Horton(1998) 45 NSWLR 426, where it was held that the meaning of the term ‘admission’ in relation to New South Wales legislation that required tape recording of interviews was the same as that in the Evidence Act and therefore included both inculpatory statements and exculpatory lies. In R v GH(2000) 105 FCR 419, the Full Court of the Federal Court, sitting on appeal from the Supreme Court of the Australian Capital Territory, came to precisely the opposite conclusion. The approach taken by the Full Federal Court is supported by a decision of the Tasmanian Court of Criminal Appeal in Carr v R(2002) 11 Tas R 362.[9]
[7]See Crimes Act 1914 (Cth) s 23B.
[8]Edwards v The Queen (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88.
Here, as in Nabole, we will proceed upon the basis that the term ‘admission’ in s 23V does include implied admissions, without finally deciding that question.
The use of the admissions by the prosecution during the trial
As noted earlier, the Notice of Incriminating Conduct relied only on statement 5. By the time of the ruling, however, it was clear that the prosecution was relying on all five statements as implied admissions evidencing a consciousness of guilt. The judge said in his ruling:
The statements made in the baggage interview that are sought to be relied on by the prosecution are … essentially twofold: first, that the accused was travelling alone in Thailand for a short holiday and, secondly, that he had met Mr Hamada on the plane. It is the prosecution case it is in a position to prove that both of the statements were false and that they were made in a consciousness of guilt of the offence charged.
Though statement 5 — ‘Whatever he said is correct’ — was ruled admissible, the focus of attention in the trial was on statements 3 and 4. When asked by the trial judge to indicate toward the end of the trial what directions were required, the prosecutor said:
The direction should be that if they accept that the accused intentionally told Gatt lies about his relationship with Hamada, and those particularised as one travelling alone to [meet] Hamada in Thailand or met Hamada on the plane. The Crown argument is that that was purposeful to distance himself from Hamada, being conscious that Hamada was importing a drug pursuant to the agreement. … they should get an instruction, Your Honour, that if they did not accept that those lies were told intentionally and [that] it’s reasonably possible that what was said in that context was through misunderstanding, they should put that evidence to one side and not use it in that manner.
In the Crown’s closing address, statement 5 was treated as falling within the narrative of the lies told by the applicant, rather than as an admission in itself. Further, when summarising the effect of Gatt and Aguilar’s testimony, the prosecutor relied upon the fact that the thrust of their evidence was that the applicant ‘was not frank about his relationship with Mr Hamada’.
Similarly, his Honour’s charge referred only to statements 3 and 4 as being relied upon by the Crown. Statement 5 was not mentioned. In the following passage, his Honour dealt with those statements and gave the jury directions as to how to deal with the contention that they were evidence of incriminating conduct:
Now I want to refer to another piece of evidence and give you some directions about that, which is what the prosecution in this case, as I said … referred to it is a circumstantial case, they are referring to a lot of pieces of evidence, and one piece of evidence they are relying on is that they are asserting that Mr Maeda told certain lies when he was interviewed at the baggage counter and in the [interpreter interview] with Mr Gatt and Mr Aguilar. I want to give you some directions about the way you can use this evidence of lies. By lies I mean the accused told deliberate untruths, that is what the prosecution are asserting.
The prosecution alleges that when he was speaking to Officers Gatt and Aguilar at the baggage counter and in the telephone interview, he told them – told Mr Gatt first that he was travelling alone. That is the first lie they are relying on. The second one he told Mr Gatt and then he repeated it in the interview with the two of them, that he met Mr Hamada on the plane, later he met him in Thailand. They are the two lies that the prosecution are relying on as part of their case.
The prosecution submits to you that these were deliberate lies and they were told by Mr Maeda in order to distance himself from Mr Hamada who was the one who had the heroin in his tummy. The prosecution submits to you that these two lies are circumstantial facts, they are facts in the overall case which you can consider along with all the other evidence to draw the ultimate conclusion that the accused Mr Maeda knew that Mr Hamada was bringing heroin into the country. That is how the prosecution uses those two lies, if you find they are lies.
It is for you to decide what significance you give to those suggested lies. But I have got to give you this warning: Do not reason that just because a person is shown to have told a lie about something that he must be guilty. You are not entitled to use that form of reasoning. The way you are able to use it is evidence that he was seeking to distance himself from Mr Hamada in order to avoid detection. You could only use evidence that Mr Maeda lied in this way if you find that he did tell a deliberate untruth, and that the only reasonable explanation for him doing so is that he believed that he had to distance himself from Mr Hamada. But I must warn you that even if you find that the accused believed that he committed the offence charged, being involved with Mr Hamada, you must consider all the evidence when deciding whether the prosecution has proved his guilt beyond reasonable doubt.
[The prosecutor] argued to you that the information being requested by Officer Gatt was not complicated; “Are you travelling alone? When did you meet Mr Hamada?”. And there could not have been any misunderstanding in communications between him and Mr Maeda or between him and Mr Aguilar with the telephone interpreter and Mr Maeda.
On the other hand, [defence counsel] argued that given the difficulties with Mr Maeda arriving at midnight on a red eye special, speaking not in his own language with Mr Gatt, Mr Aguilar, even with an interpreter, it would not be difficult for there to be some confusion or misunderstanding between the two of them, and Mr Gatt conceded that there may have been a misunderstanding, that that was possible, but he was pretty adamant in his evidence – and you need to look at his evidence closely – that Mr Maeda made those two statements that he has recorded and gave in evidence.
I must direct you that if you find that there was a misunderstanding between Mr Maeda and Officer Gatt and Officer Gatt and Aguilar when answering the questions and that the statements that they’ve recorded were not intentionally lies, then it would not be open for you to use them in the way the prosecution wants to. If you reach that conclusion that there was misunderstanding and that they are not deliberate lies, then put them aside and decide the case on the rest of the evidence, the rest of the evidence that you accept. So that is the way to deal with that.[10]
[10]Emphasis added.
It is clear that each of statements 1, 2, 3 and 4 was capable of constituting an implied admission and, as such, should have been recorded if the applicant was ‘being questioned as a suspect’ at the time. Had there been a focus upon statement 5 during the trial, it might have been appreciated that the prosecution was not asserting that it contained a lie, or represented an attempt by the applicant to distance himself, but was relying upon that statement to demonstrate the falsity of the earlier statements 1, 2, 3 and 4.
Furthermore, it should have been evident that, in making statement 5, the applicant was not seeking to distance himself but to align himself with Hamada. Whether statement 5 is viewed as an admission of the applicant by associating himself with Hamada, or as circumstantial evidence relevant to whether statements 3 and 4 were implied admissions, statement 5 also needed to be recorded if the applicant was then a suspect.
Was the applicant being ‘questioned as a suspect’ at the time that he made statements 3, 4 and 5?
The issue on appeal was whether the applicant was ‘being questioned as a suspect’ at the time that he made statement 5. (As we have said, the applicant also relies on statements 3 and 4).
As noted earlier, the statements were made by the applicant during the interpreter interview. In his examination in chief, Aguilar described the statements in these terms:
the conversation with [the applicant] — he explained to us that he had been to Thailand, that he’d travelled there alone, that he had met Mr Hamada on the flight to Melbourne. He had helped him fill out his incoming passenger card. He then went on to correct — I don’t know if correct himself, but he restated that he had met Mr Hamada in Thailand that that he had spent some time with him there. While they were there they had decided to come to Australia. They had purchased their tickets on the same day … That they had caught a taxi in together into Bangkok Airport. I then put it — I put it to [the applicant] that previously Mr Hamada had stated that they had met in Japan — in Osaka, Japan, not in Thailand as he had stated to me, and [the applicant] answered me with ‘Whatever he said is correct’, something along those lines as far as I can remember.
Similarly, Gatt gave evidence that, during the interpreter interview, the applicant had been questioned about his relationship with Hamada:
We questioned [the applicant] about how he’d spent his time in Thailand. He didn’t really give us much detail on that. We asked him how he knew Mr Hamada, how they knew each other. [The applicant], as I said, he initially said he didn’t know him. Then he said that they had holidayed together in Thailand. I don’t recall what else we discussed.
On the appeal, the applicant relied on a series of factual matters all of which — he contended — were known to the officers prior to the commencement of the interpreter interview. (As will be seen, the list substantially replicated the matters relied on in argument before the judge.) The matters relied on were as follows:
a.Tickets had been recently issued to the applicant and Hamada from Thailand;
b.Hamada held a recently issued holiday visa for Australia;
c.The applicant and Hamada both planned short stays in Australia;
d.Inconsistencies about where the applicant was to stay in Australia;
e.Inconsistent accounts of their relationship;
f.The applicant and Hamada had arrived from Bangkok a high risk port;
g.Documents suggested that the applicant and Hamada had travelled together yet presented separately in the Customs queue;
h.The applicant and Hamada each possessed immodium, a defecation-inhibiting drug;
i.There were positive ion scans for ephedrine, a border-controlled drug;
j.Similarities in travel plans between the applicant and Hamada; and
k.The applicant had travelled to Australia for three short trips within a year.[11]
[11]However, note that it was the submission of the Crown that in fact the Applicant had only travelled to Australia once – in April 2014, however there was a document which suggested that there was a further possible trip planned for October.
The evidence of the Customs officers was that, at the time they commenced the interpreter interview, they did not regard the applicant as a suspect. The applicant maintains, however, that the test is an objective one and that, given what was known, a reasonable Customs officer ought to have treated the applicant as a suspect.
The applicant submits that the state of knowledge of the Customs officers did not change between the start of the interview and the time when the applicant was cautioned at the time of the frisk search. Accordingly, it was said, since he was regarded as a suspect after the interview, he ought to have been treated as a suspect when the interview commenced.
The Crown submits in response that the relevant facts known to the officers gave them reason to investigate, as distinct from reason to suspect. At the time of the interpreter interview, the applicant was being investigated regarding to his travel plans and his association with Hamada, based on the inconsistent statements that each of them had made as to their reasons for being in Australia and as to the extent of their relationship. At the time of the interview, the applicant was not suspected of having been involved in the importation of an illicit substance.
According to the Crown, the interview with the interpreter was a necessary step in gaining more information as to whether to proceed with a non-medical internal scan and frisk search. Gatt gave evidence to that effect during the voir dire, stating:
I was getting some information from him but I couldn’t get any information from him that helped me make a judgment about his reasons for travel to Australia, so after a few minutes, we decided to use the interpreter to try and clarify a few points.
Similarly, Vegiard-Compton gave evidence during the voir dire that she decided to use the assistance of the telephone interpreter because:
the command of English from both passengers was not sufficient for us to be able to establish their bona fides … to establish whether they were legitimate tourists or visitors to Australia …. If I had been satisfied through the conversations that happened in the room with the interpreter that they were legitimate tourists, both passengers would have been released.
These submissions raise two important issues: first, is the question whether a person is being ‘questioned as a suspect’ to be determined on a subjective or an objective basis?; and, secondly, if subjective, on the basis of whose knowledge is the question to be determined? We deal with these in turn.
Subjective or objective test?
As already mentioned, the applicant submits that, despite the Customs officials’ denial of having formed the view that the applicant was a suspect for the purposes of the Act, what was known to the officers at the time means that he ought to have been viewed as a suspect.
This submission must be rejected. We respectfully agree with the view expressed by Ormiston J in Raso, that the test is a subjective one. That is, for a person to be ‘questioned as a suspect’, the individual officer must have actually formed a positive opinion that the person questioned is suspected of having committed an offence:
To characterise the questioning as an interviewer of a person ‘as a suspect’ would seem artificial unless a positive opinion had been formed, as the section requires certain steps to be taken upon the basis that the person was being so interviewed. In other words, although it would be easy to say that every interview should be tape-recorded wherever questioning might appear to be justified, there would be no purpose to the addition of the words ‘as a suspect’ in the section unless it was intended that the official should have formed some opinion based, as I have said on a factual foundation.[12]
[12]Raso (1993) 68 A Crim R 495, 528 (Ormiston J) (emphasis added).
The position would, of course, be quite different if s 23V was expressed to apply to the questioning of ‘a person who ought reasonably to have been suspected’ of committing an offence. As Ormiston J pointed out in Raso,[13] that formulation appears in the Victorian equivalent, s 464H(1)(b). It is more than 20 years since his Honour drew attention to the difference between the Commonwealth and Victorian provisions, and s 23V still uses the phrase ‘as a suspect’.
[13]Ibid 527.
It is clear that neither Aguilar nor Gatt had formed the view that the applicant was a suspect at the time of the interpreter interview. It follows that he was not then being ‘questioned as a suspect’.
In any case, the facts known to Aguilar and Gatt at the time of the interpreter interview, viewed objectively, did not establish that the applicant was a suspect at that time. The relevant factors identified by the applicant, either in isolation or combination, did not establish that he was viewed, or should have been viewed, as a suspect for the purposes of s 23V.
The trial judge, in his ruling, considered that the cases of Nabole and Raso were ‘squarely on foot.’[14] In his Honour’s view, the discovery of the heroin inside Hamada’s stomach was the key factor in altering the status of the applicant from ‘person of interest’ to ‘suspect’. In his ruling, his Honour said:
Counsel for the prosecution relied on the cases of Raso and Nabole to submit that the authorities have distinguished between the investigation of a possible offence and whether a person is suspected of committing an offence. Here I regard the cases of Raso and Nabole as being squarely on foot.
In Raso it was held by Ormiston J that until the heroin was found in the toy, the appellant in that case was not a suspect for the purposes of s.23V. By analogy here, until at least the objects were detected in the stomach of Mr Hamada by the scan, it cannot be the case that the accused was a suspect for the purposes of s 23V.
Similarly in Nabole, when the accused in that case had been placed on an alert list, it was only after the white powder had been found that the court held that the accused had become a suspect. At paragraph 38 of that case, Nabole, Redlich JA said:
The procedure which followed was entirely in accordance with the obligations flowing from the provisions in s 23V. Once a specific offence had been identified and the appellant was cautioned, he was taken to an interview room to be questioned. That questioning, as required, was recorded. But until the point at which a real suspicion arose that the appellant had committed a Commonwealth offence, s 23V did not require questioning to be tape-recorded. The subsequent procedure that was followed once the drugs were discovered did not have the effect of converting the appellant’s earlier status to one of a ‘suspect’.
Here, as in Raso, until the discovery of the cocaine there was no factual foundation for a suspicion that any particular offence had been committed. While the tip was sufficient to support some generalised suspicion to justify a baggage examination, the questions asked during that examination were a function of [the Customs officer]’s powers under s 195 of the Customs Act. In my view, the trial judge correctly concluded that the tip was insufficient to render the appellant a person being questioned as a suspect for the purposes of s 23V(1). It was not until the discovery of the cocaine in [the courier]’s luggage and her identification of the appellant as having given her the baggage to carry that the appellant could be considered to have been a suspect in relation to any specific offence. At the time that the appellant made statements (b) and (c), s 23V had not been enlivened.
[14]Unrevised ruling of Judge Murphy, 5 May 2015, 286.
Here, the applicant was being interviewed for the purpose of eliciting further information as to his travel and his relationship with Hamada. In Raso, Ormiston J highlighted the distinction between investigating to determine whether an offence has been committed and suspecting a person of having committed an offence. Referring to an earlier decision of his own on a company law provision, his Honour said:
Notwithstanding the differences in the legislation I am still inclined to the conclusion that the word ‘suspect’ requires a degree of conviction extending beyond speculation as to whether an offence has been committed and requiring that it be based upon some factual foundation. In other words I have concluded that the reasoning in Heaney’s case ought for present purposes to be equally applicable here, although it must remembered under the Victorian section that the person whose questioning must be recorded may include also a person who ought reasonably to have been suspected.[15]
[15]Raso(1993) 68 A Crim R 495, 527 referring to Heaney [1992] 2 VR 531.
In our opinion, the trial judge was right to conclude that the matters known about the two men, prior to the interpreter interview, gave the officers reason to investigate, rather than to suspect. It is not to be overlooked that, as the evidence showed, one of the purposes of the interpreter interview was to clarify whether there had been any misunderstanding between the applicant and the investigating officers at the time of the baggage interview. At the point at which the various admissions were made and prior to the drugs being detected in the stomach of Hamada, the officers were only investigating whether the two men were travelling together, and if so for what purpose.
Thus, even if (contrary to our view) the test was an objective one, the matters relied upon by the applicant as pointing to him being a suspect at 1:58 pm were not such that he ‘ought reasonably to have been suspected’ at that time of having imported drugs. As we have said, the applicant was being interviewed in order to clarify his travel intentions and his association with Hamada. The interview was conducted in part because of the impugned statements made during the course of the baggage interview and to ensure there was no misunderstanding as to the nature of the applicant’s association with Hamada.
The officers were still in the course of investigating whether the applicant and Hamada were indeed travelling together. Prior to the discovery of the heroin inside Hamada’s stomach, the information in the officers’ possession did not give rise to a suspicion that he was, or might be, complicit in the importation of an illicit substance.
Whose knowledge?
The applicant’s submission is that, in deciding whether he was being ‘questioned as a suspect’, account must be taken of all of the matters known to the interviewing authority. That is, the knowledge of all of the Customs officers involved (Gatt, Aguilar and Vegiard-Compton) must be aggregated for this purpose.
This submission must also be rejected. Once it is accepted that s 23V requires the formation of an opinion by an officer, it follows that the only relevant knowledge is the knowledge of that officer. The officer’s knowledge naturally includes matters communicated to her/him by another officer but — equally naturally — does not include matters known only to other officers.
There is no authority on point, but our conclusion derives support from the decision of the New South Wales Court of Criminal Appeal in Hyder v Commonwealth of Australia.[16] That case concerned s 3W(1)(a) of the Crimes Act 1914 (Cth), where the power of ‘arrest on reasonable grounds’ was considered. The relevant test was stated by the Court to be whether the person(s) doing the questioning reasonably regarded the person as a suspect.
[16](2012) 217 A Crim R 571 (‘Hyder’).
In Hyder, McColl JA referred to O’Hara v Chief Constable of Royal Ulster Constabulary[17] and cited the following passage from the speech of Lord Hope of Craighead:
[An arresting officer's] action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.[18]
[17][1997] AC 286 (‘O’Hara’).
[18]Ibid 301–302 (emphasis added).
As we have already said, even if the knowledge of the relevant officers were aggregated, it would not change our conclusion, for the reasons already given.
Ground 1 is not made out.
Substantial miscarriage of justice?
Section 276(1)(b) of the Criminal Procedure Act 2009 requires the Court of Appeal to allow an appeal against conviction if the appellant satisfies the Court that ‘an error or an irregularity’ in the trial has resulted in a ‘substantial miscarriage of justice.’ Accordingly, if (contrary to our view) statements 3, 4 and 5 should have been excluded, the question would arise whether the (wrongful) admission of that evidence gave rise to a substantial miscarriage of justice.
On remittal following the judgment of the High Court in Baini v The Queen,[19] this Court held that, where evidence had wrongly been admitted, this Court could not fail to be satisfied that there had been a substantial miscarriage of justice unless it determined that it was not open to the jury to entertain a doubt as to guilt. The Court (Warren CJ, Nettle and Ashley JJA) said:
[I]t is not open to be satisfied on the record of the trial that the admission of the inadmissible … evidence did not amount to a ‘substantial miscarriage of justice’ unless we are able to conclude from our review of the record that, if the inadmissible … evidence were excluded, the jury acting reasonably and applying the correct onus and standard of proof could not properly have been left with a reasonable doubt as to the applicant’s guilt on those of the … counts on which the jury returned a verdict of guilty.[20]
[19]Baini v The Queen (2012) 246 CLR 469.
[20]Baini v The Queen (2013) 42 VR 608, 613 [10].
We turn to consider the circumstantial evidence in the present case. As we have said, the defence admitted in the trial that the applicant and Hamada had travelled together. The defence was that, despite the admitted association between them, the jury should have had a doubt as to whether the applicant was a party to Hamada’s importation offence.
Travel documents, notes and business cards in the possession of the applicant
The documents showed that the applicant and Hamada had booked their travel at the same travel agent and on the same day, and had both booked to travel to Australia between 21 August and 29 August 2014. The passports of both men showed that they had left Japan on 15 August 2014 and arrived at Bangkok airport on the same day.
Further, the applicant had in his possession an outgoing passenger card with Hamada’s details on it. A notebook found in his possession contained notes recording Hamada’s passport number, the flight number of the plane on which the applicant and Hamada were travelling to Melbourne, Hamada’s name and date of birth, and the words ‘office worker’ or ‘self-employed’. Those entries were relied upon as consistent with careful planning of Hamada’s travel and of what he might say when completing documentation. They were inconsistent with the applicant’s explanation that he was only helping Hamada fill out a passenger arrival card.
Phone analysis
The mobile phones which the applicant and Hamada respectively had in their possession were analysed. Each phone had the other’s contact details stored in the contacts list. A further analysis of the SMS history on the applicant’s phone revealed that he had sent three text messages to Hamada in the period leading up to the flight to Melbourne — on 7, 25 and 26 July respectively.
This mobile phone evidence assumed particular importance when viewed in the context of
·the applicant and Hamada arriving separately at the airport and baggage line;
·neither acknowledging the other throughout the process; and
·the applicant falsely claiming at the first baggage examination that he did not know Hamada.
Physical distancing in the airport and false denials regarding relationship with Hamada
As noted earlier, at the baggage examination the applicant denied that he knew Hamada and then gave further false and inconsistent explanations of how he had come to meet Hamada. The CCTV footage showed Hamada and the applicant physically distancing themselves from each other as they moved through the airport. At a point prior to arrival at the Customs inspection, the applicant signalled to Hamada as to where he should go. They remained apart at the baggage counter for a lengthy period without conversing.
The CCTV footage showed that the applicant was attempting to distance himself from Hamada. Together with his statements at the baggage counter that he did not know Hamada, and that he was travelling alone, the applicant’s conduct supported the inference of a consciousness of guilt.
Notes in the notebook regarding heroin and counting of 100 items
According to the expert evidence, two pages of the notebook had Japanese characters that translated into phonetic sounds making the word ‘hero’. This abbreviation, the expert said, was a well-known Japanese reference to the drug heroin. That interpretation was supported by the fact that these Japanese characters were adjacent to figures that commonly represent weights one kilogram, and 100 grams, and what appeared to be monetary amounts in both Thai and Japanese currency.
Another part of the notebook contained notes of something being counted, at time intervals between 1:30 to 2:30, then 3:30 to 4:30, then 5:30. Another note above the counting said ‘6:00 depart Airport’. The numbers, which amounted to 100, were relied upon by the prosecution as representing the counting of the 100 capsules of heroin as they were consumed by Hamada before departure to the airport.
It was not in issue that Hamada sought to bring into Australia the 100 pellets of heroin which he had consumed. Neither was it in issue that the applicant and Hamada had planned the trip from Japan to Thailand and thence to Australia. That was the setting in which the overwhelming circumstantial evidence had to be considered.
The Court has had the benefit of perusing defence counsel’s closing address, in which an unpersuasive attempt was made to offer innocent explanations for the prosecution case. In our opinion, it was inevitable that the jury would have returned a finding of guilt even if the admissions made during the interpreter interview had been excluded.
Compliance with pt 6 JDA 2013
Part 6 of the JDA 2013[21] imposes certain requirements when the prosecution seeks to rely upon incriminating conduct. An examination of the issues raised by the appeal reveals that there was a serious failure to observe the requirements of pt 6 of the JDA 2013. Importantly, however, no issue of compliance with the JDA 2013 was raised at trial or on the appeal.
[21]Now pt 4 of the Jury Directions Act 2015.
At common law, it was always regarded as critical that the Crown identify the precise lies relied upon as demonstrating consciousness of guilt. Sections 23 and 24 of the Act maintain the necessity for that degree of precision, which is necessary in order to remove any uncertainty as to what evidence is relied upon as evidence of incriminating conduct.
Puzzlingly, the notice of incriminating conduct referred only to statement 5. As pointed out earlier, the Crown also relied on statements 1 to 4 as incriminating conduct and the trial ruling addressed those statements, rather than statement 5. That unsatisfactory state of affairs might have resulted in the problems that the introduction of pt 6 of the JDA 2013 was designed to avoid.
Section 25 of the JDA 2013 is in these terms:
Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
Compliance with pt 6 of the Jury Directions Act 2013 was recently discussed by this Court in Lowe v The Queen.[22] The joint reasons of Redlich JA and Robson AJA summarised the requirements of pt 6, and in particular the obligation under s 25, as follows:
[22][2015] VSCA 327 (‘Lowe’).
If the prosecution relies on evidence of conduct as evidence of incriminating conduct, s 25 requires the judge to give the direction. That is so even if, as here, defence counsel agrees in the course of the trial that the direction is not necessary. The question is whether the prosecution did rely on the applicant’s post-offence conduct within the meaning of pt 6 as evidence of incriminating conduct for the purpose of s 25. We do not consider that it did.
…
Part 6 of the JDA 2013 (which is now pt 4 div 1 of the Jury Directions Act 2015) sets out a detailed scheme for the treatment of post-offence incriminating conduct. Section 23 provides that the prosecution ‘must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct’. Section 24 provides that the prosecution ‘must not rely on evidence of conduct as evidence of incriminating conduct’ unless, inter alia, notice is given under s 23. Section 25, extracted above, provides that the trial judge must give a mandatory direction if ‘the prosecution relies on evidence of conduct as evidence of incriminating conduct’. Section 27(1), extracted below, provides that defence counsel may request that the trial judge give a direction in respect of evidence of conduct even if ‘the prosecution does not rely on the evidence as evidence of incriminating conduct’. A note following to s 27(1) refers to ss 14 and 15 of the JDA, which concern a trial judge’s obligation to give directions that have (and have not) been requested. Section 28 abolishes the common law rules concerning incriminating conduct.
…
We agree that the absence of a request by defence counsel that the direction be given does not relieve a trial judge of the obligation under s 25 if the Crown is relying upon evidence that attracts that obligation. Whether or not there is a forensic purpose in not seeking such a direction cannot affect the duty to give the mandatory direction where s 25 applies.
…
The legislative scheme does not leave room for the application of s 25 where the prosecution does not expressly rely upon evidence of conduct as evidence of incriminating conduct. If the prosecution relies on evidence of conduct as evidence of incriminating conduct, it must give notice (s 23), and the judge must give a direction (s 25). If the prosecution does not rely on evidence of conduct as evidence of incriminating conduct, but there is a risk that the jury may use it in such a way, defence counsel may request that a direction be given (ss 14 and 27), or, in the absence of such a request, the judge may nonetheless be obliged to give the direction (s 15).[23]
[23]Ibid [132], [137]–[139] (citations omitted).
Section 23 of the JDA 2013 contemplates that the prosecution may only rely upon evidence as evidence of incriminating conduct if the evidence has been the subject of a notice. The applicant’s trial was conducted, however, on the basis that the Crown had explicitly relied upon each of the statements 1 to 5 as incriminating conduct. It was acknowledged by the parties that the focus in closing addresses was upon lies 3 and 4. No complaint was made, either at trial or on the appeal, about the deficiencies in the notice.
The judge correctly recognised that the jury would understand that the prosecution was relying on statements 1,2, 3, 4 and 5 as implied admissions. For that reason, his Honour tailored his directions in order to comply with s 25 of the JDA 2013. Arguably, the directions covered all aspects of the matters raised in s 25 although they did not in all respects conform with the language of s 25. Again, no complaint is made on appeal in this regard.
In order to provide some guidance to judges in the future, we make the following observations. Section 6 of the JDA 2013 provides that a judge need not use any particular words in giving a direction under the JDA. If, however, a judge chooses to depart from the language used in a particular provision, care is needed to ensure that the matters covered by the provision are correctly addressed.
We set out earlier[24] the directions which his Honour gave, addressing the requirements of s 25(1)(a)(i) and (ii) that the jury must be satisfied beyond reasonable doubt that ‘the conduct occurred’ and that ‘he or she committed the offence charged’. With respect, the form in which those directions were given highlights the risk of departing from the statutory language. The factual questions posed may not satisfy those statutory requirements. Once again, no complaint was made at trial, or on appeal, about the directions given.
[24]See [35] above.
Appeal against sentence
The applicant seeks leave to appeal against sentence on the following ground:
The head sentence and non-parole period imposed on the applicant infringe the principle of parity when regard is had to the sentence imposed upon the applicant’s co-offender, Yoshitaka Hamada.
The applicant submits that the principle of parity has been infringed due to the difference in the sentences imposed on himself and Hamada. As noted earlier, Hamada pleaded guilty and was sentenced to six years’ imprisonment, with a non-parole period of three years and six months, while the applicant, following a trial, was sentenced to nine years and six months’ imprisonment, with a non-parole period of six years and four months.
The principles relating to parity arguments on appeal are well established and were summarised as follows in Kelly v The Queen.[25]
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal. This Court will interfere in such cases where it considers that the disparity between the co-offenders is ‘marked’ or, as Dawson J said in Lowe v The Queen, where the differences between the sentences are ‘manifestly excessive’.
[25] [2011] VSCA 10 [5].
Consistently with this Court’s jurisprudence on the manifest excess ground, the question which arises under the parity ground is whether the sentencing differential was ‘reasonably open’ in the circumstances of the case. In Teng v The Queen,[26] this Court endorsed the following statement by Maxwell P in Wolfe:
[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a ‘justifiable sense of grievance’ about the relativity between the appellant’s sentence and the sentence of the co-offender. I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant’s sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation — or lack of differentiation, as the case may be — between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate — or fail to differentiate — between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant’s grievance about the sentencing relativity cannot be said to be justifiable.[27]
[26](2009) 22 VR 706 (‘Teng’).
[27][2008] VSCA 284 [9], cited in Teng (2009) 22 VR 706, 710 [17].
Thus, where the sentencing differential between co-offenders cannot be explained by differences between them, as to their role in the offending or their personal circumstances, an appellate court may interfere.[28] We turn to consider whether the difference between the applicant’s sentence and that imposed on Hamada can be explained by material differences between them.
[28]R v Lowe (1984) 154 CLR 606, 610 (Gibbs CJ), 613–14 (Mason J), 623–4 (Dawson J); Green v The Queen (2011) 244 CLR 462, 474 [31] (French CJ, Crennan and Kiefel JJ).
There were a number of important differences between the applicant and Hamada. First, Hamada pleaded guilty at the earliest opportunity, whereas the applicant was found guilty following a trial. Second, the applicant was found to be higher in the trafficking hierarchy than Hamada, and to have been ‘in effect, [his] minder’. In our view, the conclusion was open that the applicant was playing an ‘overseeing role’ in relation to Hamada’s travel and his ingestion of the drug, and that his level of offending was thus greater than Hamada’s. Third, there is an age difference between the two offenders — the applicant being 66 years old, and Hamada 51.
In his reasons for sentence, his Honour noted that in assessing the applicant’s moral culpability for the offending, it was necessary to take into account the different roles played by the applicant and Hamada. His Honour noted that:
[i]t is not disputed that Mr Hamada was the courier of the drugs. I am satisfied beyond reasonable doubt that you were in a role higher in the hierarchy than that of your co-accused Mr Hamada who, on any view, was the courier, and who was sentenced on the basis that he was low in the entrepreneurial hierarchy.[29]
[29]DPP v Maeda (Unreported, County Court of Victoria, Judge Murphy, 14 May 2015) [10] (‘Reasons’).
There was also a material difference in their respective criminal records. As the judge pointed out to defence counsel on the plea, and recorded in his reasons, the applicant had a number of prior convictions for drug importation offences, which increased his moral culpability.[30] Hamada had prior convictions for drug offences, but none for importation.
[30]Reasons [20]–[23].
In our view, it was reasonably open to his Honour to impose the sentence on the applicant which he did, and to differentiate between the applicant and Hamada as he did.
We would refuse leave to appeal against sentence.
---
[9] Nabole [2014] VSCA 297 [19]–[20] (citations omitted).
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