Tan v The Queen
[2003] WASCA 324
•18 DECEMBER 2003
TAN -v- THE QUEEN [2003] WASCA 324
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 324 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:177/2001 | 7 NOVEMBER 2003 | |
| Coram: | STEYTLER J MCKECHNIE J WALLWORK AJ | 18/12/03 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against convictions and application for leave to appeal against sentence dismissed | ||
| B | |||
| PDF Version |
| Parties: | KIM TJENG TAN THE QUEEN |
Catchwords: | Criminal law Importation of drugs Evidence of prior travel of accused and associates introduced in cross-examination Whether prejudicial to trial Adequate directions concerning the prior travel given by trial Judge Whether sentences excessive Decided on the facts |
Legislation: | Customs Act 1901 (Cth) |
Case References: | Cameron v The Queen (2002) 209 CLR 339. , Crofts v The Queen (1996) 186 CLR 427 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665. , Maric v The Queen (1978) 20 ALR 513 Postiglione v The Queen (1997) 189 CLR 295 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Lavery (1979) 20 SASR 430 R v Mustafa (2002) 133 A Crim R 133 R v Olbrich (1999) 199 CLR 270 R v Wright [1999] 3 VR 355 Siganto v The Queen (1998) 194 CLR 656 Tripodina v Morabito (1988) 35 A Crim R 183 Winning v The Queen [2003] WASCA 245 Wong v The Queen (2001) 207 CLR 584 Grimwood v The Queen [2002] WASCA 135 Heryadi v The Queen (1998) 19 WAR 383 Jones v The Queen (1997) 191 CLR 439 Mustafa v The Queen [2001] WASCA 192 R v Boyle (1987) 34 A Crim R 202 R v Ferrer-Esis (1991) 55 A Crim R 231 R v HJS [2001] NSWCCA 55 R v T, unreported; CCA NSW; 15 March 1990 Voong v The Queen [2000] WASCA 220 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TAN -v- THE QUEEN [2003] WASCA 324 CORAM : STEYTLER J
- MCKECHNIE J
WALLWORK AJ
- CCA 8 of 2002
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Importation of drugs - Evidence of prior travel of accused and associates introduced in cross-examination - Whether prejudicial to trial - Adequate directions concerning the prior travel given by trial Judge - Whether sentences excessive - Decided on the facts
Legislation:
Customs Act 1901 (Cth)
(Page 2)
Result:
Appeal against convictions and application for leave to appeal against sentence dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Mr M G A Plummer
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 209 CLR 339
Crofts v The Queen (1996) 186 CLR 427
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Maric v The Queen (1978) 20 ALR 513
Postiglione v The Queen (1997) 189 CLR 295
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Lavery (1979) 20 SASR 430
R v Mustafa (2002) 133 A Crim R 133
R v Olbrich (1999) 199 CLR 270
R v Wright [1999] 3 VR 355
Siganto v The Queen (1998) 194 CLR 656
Tripodina v Morabito (1988) 35 A Crim R 183
Winning v The Queen [2003] WASCA 245
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
(Page 3)
Grimwood v The Queen [2002] WASCA 135
Heryadi v The Queen (1998) 19 WAR 383
Jones v The Queen (1997) 191 CLR 439
Mustafa v The Queen [2001] WASCA 192
R v Boyle (1987) 34 A Crim R 202
R v Ferrer-Esis (1991) 55 A Crim R 231
R v HJS [2001] NSWCCA 55
R v T, unreported; CCA NSW; 15 March 1990
Voong v The Queen [2000] WASCA 220
Wilde v The Queen (1988) 164 CLR 365
(Page 4)
1 STEYTLER J: I have had the advantage of reading the judgment of Wallwork AJ, with which I am in general agreement.
2 As will be apparent from his Honour's judgment, the appellant was convicted by a jury on eight counts of being knowingly concerned in the importation into Australia of narcotic goods comprising in total 5465.87 grams of pure methylamphetamine, 47.26 grams of pure MDMA or ecstasy, 14.7 grams of pure amphetamine and 1.504 grams of pure heroin.
3 He was arrested on 27 October 1999 at Perth Airport, together with three other offenders, Lim, Wong and Quek. The Crown case was that, prior to October 1999, the appellant had recruited Quek and Wong to act as couriers of the drugs on this occasion. The Crown alleged that the appellant had assisted them in taping the drugs to their bodies and had given to Wong a bag which he asked Wong to take into Australia on his behalf as he had too many bags. The appellant was said to have told Wong that it contained foodstuffs but, in fact, it contained a large quantity of drugs, including 2855.87 grams of the imported methylamphetamine. Lim, who was the appellant's girlfriend, was also found to have been in possession of drugs. However, the Crown did not allege that the appellant was responsible for these.
4 It was no part of the prosecution case that Wong and Quek had previously couriered drugs on behalf of the appellant, or at all, or even that there had been any association between the three of them prior to the events giving rise to the prosecution. However, the appellant's counsel contended in the course of cross-examination and in submissions at the trial that Quek and Wong were unscrupulous criminals with a history of drug dealing (they were cross-examined extensively as regards their prior travel) who had falsely implicated the appellant in order to shift blame from themselves.
5 The passports of each of the appellant, Quek and Wong were tendered by the prosecution during the course of its case. This was done (without objection from the defence) solely in order to demonstrate the movements of each of them into and out of Singapore immediately prior to the importation of the drugs into Australia, albeit each passport also showed a history of extensive travel by its holder.
6 The first ground of appeal against conviction complains of what was said to be irrelevant, prejudicial and impermissible evidence adduced by the prosecution in respect of a schedule, prepared by a police officer, showing correlations in the prior travel of the appellant,
(Page 5)
- Quek and Wong. As Wallwork AJ has explained, the reference to the schedule arose out of the cross-examination of an investigating police officer who had been called by the Crown as a witness. He was asked if he had the appellant's passport available and whether he had been able to check the appellant's travel movements. He answered "Yes". He was then asked whether the passport demonstrated that, on the evening of 25 October 1999, the appellant had arrived at Singapore. He again answered "Yes". Then, after being asked some other questions with respect to Batam Island, where the appellant, Wong and Quek were said to have met, he was asked:
"Whilst dealing with the question of travel movements, did, to your knowledge, a police officer called Mr Muddle - was he asked to look into the travel arrangements to look at correlations and patterns of travel by all of the persons who were charged?"
8 That cross-examination led to reference to the schedule, by the prosecutor, in the course of his re-examination of the police officer. When this was done, counsel for the appellant said that he had no objection to this line of questioning as long as it was done in order to clarify some ambiguity or "some points the jury think may be of assistance". Thereafter, in the absence of the jury, counsel for the appellant resisted the tender of the schedule, which had, in the intervening period, been marked only for identification. As Wallwork AJ has explained, the trial Judge agreed that the document should not be tendered. In the course of subsequent discussion, counsel for the appellant informed the trial Judge that he "would be more than happy" if the schedule was to remain "as an MFI" and if the trial Judge was in due course to say to the jury that the mere fact that people travelled did not mean that they were drug couriers. The trial Judge thereupon said that he would give such a direction and said, as regards
(Page 6)
- the appellant's passport (counsel for the appellant having made an application that it should be withdrawn from the jury notwithstanding that he had not previously objected to its tender), that it had been tendered for a legitimate purpose and that it would, in any event, create "more problems to withdraw it than to leave it in".
9 In these circumstances, and essentially for the reasons given by Wallwork AJ, it seems to me that ground 1 has not been made out. The re-examination in respect of the schedule of travel was, in my opinion, proper, in circumstances in which, as I have said, counsel for the appellant, presumably for tactical reasons of his own, had opened up that very issue. Given that fact, and given that the trial Judge gave the very direction with which counsel for the appellant had said he "would be more than happy", there was, in my opinion, no miscarriage.
10 As to the second ground of appeal against conviction (by which the appellant contended that his passport should not have been allowed to remain as an exhibit), I have already said that the passports of each of the appellant, Quek and Wong were tendered, without objection, for proper reasons. While it may have been possible to withdraw the appellant's passport once the jury had seen the schedule, this would, as the trial Judge said, have created more problems for the appellant than to leave it in. It seems to me that its withdrawal would inevitably have led the jury to speculate about the reasons for that withdrawal and that it was consequently preferable to leave the passport before the jury, more particularly in circumstances in which the trial Judge gave the jury a firm direction to the effect that there was no room for looking for theories which were not supported by the evidence and told the jury that the appellant's extensive travel was explained by the fact that he was a merchant.
11 I would consequently dismiss the appeal against conviction.
12 As to the appeal against sentence, there are only two grounds advanced in support of that appeal. The first is that the sentences imposed upon the appellant were disparate with those imposed upon his co-accused, Quek and Wong, in respect of those offences which were common to all three of them. The second is that the sentences imposed upon the appellant were manifestly excessive in all of the circumstances, the trial Judge having placed too much emphasis on the weight and quantity of the drugs involved and on the role of the appellant in the commission of the offences and having failed to give sufficient weight to the impact that the appellant's incarceration would
(Page 7)
- have upon his family and business and to the hardship that he will suffer by virtue of his imprisonment in a foreign country and culture.
13 As to the first of those grounds, I am not persuaded that the sentencing Judge made any error in the exercise of his discretion (as to which see Lowndes v The Queen (1999) 195 CLR 665). As Wallwork AJ has pointed out, he took into account the distinction between the role played by the appellant, on the one hand, and that played by each of Quek and Wong, on the other. He found that the appellant had been an immediate organiser, albeit there may have been others higher than him in the chain. Quek and Wong, on the other hand, had played a much lesser role and had merely (I use that word only in a comparative sense) been couriers. He also took into account the fact that Quek and Wong had been recruited by the appellant and that the appellant had deceived them in respect of the contents of the bag which he had asked Wong to carry for him.
14 Given these circumstances, and the seriousness of the appellant's offending when regard is had, inter alia, to the very large quantity of drugs involved, I am (if I can be forgiven for using a double negative) not persuaded that it was not open, as a matter of parity, for the trial Judge to have chosen the starting point he did in respect of the appellant, notwithstanding that that starting point was substantially higher than that adopted in the case of either Wong or Quek.
15 Next, it is plain that the appellant was not entitled to the reductions given to each of Quek and Wong arising out of their pleas of guilty and promises of future co-operation. Like Wallwork AJ, I can see no reason why Quek and Wong should not have been given some discount in respect of their pleas of guilty (which indicated an acceptance of responsibility and a willingness to facilitate the course of justice) in circumstances in which no such discount was available to the appellant because he exercised his entitlement to require the Crown to prove its case against him. In Cameron v The Queen (2002) 209 CLR 339 at 343 Gaudron, Gummow and Callinan JJ said (at [12]) that, although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial (see also Siganto v The Queen (1998) 194 CLR 656 at 663 (at [22]) per Gleeson CJ, Gummow, Hayne and Callinan JJ). While their Honours also said (at [13]) that it is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the
(Page 8)
- pragmatic and objective ground that the plea has saved the community the expense of a trial, they went on to say (ibid) that the same is not true if the plea is seen, subjectively, as reflecting the willingness of the offender to facilitate the course of justice (cf the different approach of McHugh J at [44] and [45] and cf, also, Kirby J at [65] to [68]).
16 As to ground 2 of the grounds of appeal against sentence, I agree, once again, with what has been said by Wallwork AJ. The sentencing Judge took into account all of the matters now raised on behalf of the appellant. I am not persuaded that he placed too much emphasis or too little emphasis on any of the matters referred to and nor am I persuaded that there was otherwise any error in the exercise of his Honour's discretion.
17 I would consequently dismiss the application for leave to appeal against sentence.
MCKECHNIE J :
Introduction
18 On 27 October 1999, the appellant travelled by air from Singapore to Perth. Travelling with him was one Megawati Lim. Also on the flight were Lay Khim Quek and Hon Piew Wong. Quek and Wong were searched at the airport, having voluntarily declared foodstuffs in their baggage. Several of the apparent food packages in fact contained large quantities of narcotics. A search of Wong and Quek revealed narcotics strapped to their body. Wong's body pack contained 1951.3 grams gross methylamphetamine. Quek's body pack contained 1250.1 grams gross of methylamphetamine.
19 The red bag which they had declared as containing foodstuffs contained 6909.4 grams methylamphetamine, 620.4 grams 3,4 methylenedioxymethamphetamine, 217.5 grams amphetamine and 68.8 grams gross of heroin.
20 In due course, Wong and Quek pleaded guilty to offences contrary to the Customs Act, s 233B(1)(b), in relation to the narcotics found in their respective body packs.
21 The appellant was indicted on eight counts of being knowingly concerned in the importation of prohibited imports. These counts covered both the drugs found in the body packs and the drugs found in the red bag being carried by Wong and Quek.
(Page 9)
22 The gross weight of the drugs involved in the eight counts was 11 kilograms. Tan pleaded not guilty. A first trial did not result in a verdict and the jury was discharged. A second trial was held before Miller J and a jury between 15 and 26 November 2001. The jury returned verdicts of guilty on each count. The appellant was sentenced to a total term of 20 years' imprisonment, with a non-parole period of 10 years.
The Crown Case at the Trial
23 The Crown case was that the appellant organised the importation of the prohibited drugs carried by Quek and Wong, having recruited each of them at a meeting on Batam Island, Indonesia, in about June or July 1989. Some time after the meeting, the appellant contacted Wong by telephone and arranged for Quek and Wong to travel to Singapore and stay at the New Otani Hotel. At the New Otani Hotel, the appellant provided Quek and Wong with packages of drugs which he helped them attach to their bodies. He also asked them to carry a tartan bag which he said contained foodstuffs.
24 The Crown case at trial principally relied upon the evidence of Quek and Wong. There was, understandably, a strong attack on their credibility including suggestions, reasonably based, that, contrary to their evidence that they were first-time couriers, they had in fact been drug couriers for some years.
25 The appellant did not give evidence.
The Significance of the Passports
26 The passports of Wong, Quek and the appellant were tendered at trial. Unusually, following the Crown prosecutor's opening, defence counsel was permitted to make an opening statement.
27 In the course of that statement, senior counsel for the appellant adverted to the passport:
"MR DUNN QC: The dates in this case aren't in dispute but you may find them important. It's on the evening of Monday, 25 October – the evening of Monday, 25 October; and by 'the evening' I mean in the very late afternoon, sometime between 5.00 and 6.00 – that Megawati Lim and Mr Tan flew from Indonesia into Singapore. Some of you may have been to Singapore and you know what Singapore Customs are like and you know what Singapore customs – and I mean customs
(Page 10)
- and manners and how that place is run, but they flew into Singapore and you will hear from the airport they rang – because at the airport there is a facility, as there is here at Perth, that you can ring and book a hotel. The hotel that they booked into on that Monday, 25 October was the New Otani Hotel by the banks of the Singapore River.
One thing that you will see, and it's not in dispute, is Mr Tan's passport. It's not in dispute that when people come and go from Singapore, like coming and going from Australia, your passport is screened by the Singaporean authorities, and it's not in dispute that when you arrive in Australia, what happens to your passport? You show it to somebody, it's screened and often stamped. You will be able to see when it was that the Indonesian, Mr Tan, went to Singapore and when he arrived, and you know from the booking in of the hotel and so on that that's Monday the 25th."
28 During the course of Wong's cross-examination he was asked:
"MR DUNN: Did you tell the committal court that you had then met Mr Tan in Singapore in October, a week or more before you had travelled to Australia, in an old coffee shop?---Yes, in the hotel.
No, no, no, not the hotel. Did you tell the committal that about a week before you came to Australia you had met Mr Tan from Indonesia in a coffee shop in Singapore?---Yes.
…
And I put to you, didn't I, that Mr Tan's passport, being an Indonesian, showed that he wasn't in Singapore prior to 25 October. There's no stamp in Tan's passport showing that he has been in Singapore to meet you?---How could I know whether there was a stamp in his passport?
You see, now you come to give evidence at this trial and can I remind you of a couple of things that you said to this jury on your oath on Friday?---Yes.
…
And then remember I asked you some questions about what you said at the last trial, about meeting Mr Tan in the week or
(Page 11)
- two prior to leaving to come to Australia on the 26th, and on one occasion you specified you met him on 24 October and on another occasion a week before that?---I don't remember the dates.
I see. And do you remember – perhaps I will just draw your attention to this to see if it jogs your memory. At 11.41 at the trial last Friday when Mr Dembo asked you about the coffee shop, Mr Dembo asked you this question, 'Did you let Mr Tan know that you're now prepared to take drugs to Australia?' and did you say, 'I was in Singapore. He rang me up, asking me to come out'?---Yes.
'Come out where?' said Mr Dembo. And you said, 'In a coffee shop'?---Yes.
And the next question, 'Did you go to the coffee shop?' Answer, 'Yes'?---Yes."
29 Another matter of contention relating to the passport of Wong was the fact that there were no stamps within his passport for entry onto Batam Island at relevant times, despite the fact that in committal proceedings he had sworn that his passport had been stamped.
30 As part of its case, the Crown called Federal Agent Scantlebury, a police officer, who attended at Perth International Airport on 27 October 1999. He interviewed Quek and Wong. Most of his evidence concerned his dealings with Quek and Wong in relation to their undertaking to give evidence in return for favourable consideration in respect of their sentence. In the course of his investigation into the matter, Federal Agent Scantlebury visited Singapore and Batam Island. He gave evidence of the level of surveillance at Changi Airport.
31 Federal Agent Scantlebury was cross-examined about the appellant's passport and it is this aspect of the case which leads to the grounds of appeal:
"1. The learned trial Judge erred in law in allowing irrelevant and prejudicial re-examination which did not arise in cross-examination.
2. The learned trial Judge erred in law in allowing exhibit C1 (the applicant's passport) to remain as an exhibit , and go to the jury."
(Page 12)
32 The cross-examination of Federal Agent Scantlebury by the appellant's senior counsel opened the issue of the appellant's travel movements in relation to Singapore and Indonesia. Shortly after he began cross-examination he asked the following question:
"DUNN MR: Whilst dealing with the question of travel movements, did, to your knowledge, a police officer called Mr Muddle – was he asked to look into the travel arrangements to look at correlations and patterns of travel by all of the persons who were charged?---Yes."
- In re-examination, prosecuting counsel took Federal Agent Scantlebury to Exhibit C1 which was the appellant's passport. The passport had previously been tendered, without objection, and was undoubtedly relevant and admissible. The witness indicated that he had caused a schedule to be prepared setting out the apparent travel destinations of the appellant and others based upon information from the respective passports.
33 Prosecuting counsel focused the attention of the Federal Agent Scantlebury on the appellant's travel details. Following intervention by the Judge, counsel indicated that he wished to focus on the appellant's travel and then said:
"The thing is, I should just articulate, I don't mind this going to the jury, I think it should, but it has other person's travels as well".
- The Judge then suggested:
"If you weren't going to tender it, let's put it on the screen so it can be shown as he reads it and all jurors will then be able to see it. ... They will be able to follow it better ..."
The time on the transcript would indicate that the document was visible to the jury for about six minutes. Following the witness reading aloud relevant portions, prosecuting counsel sought to tender the schedule. Defence counsel asked for the schedule to be marked and discussed later. This was done. At a convenient time counsel expanded his objection to the tender of the schedule, questioning the relevant forensic purpose of the tender.
34 The Judge was well aware of the potential prejudicial effect of the schedule. He said:
(Page 13)
- " ... This schedule has a rather dramatic effect. It shows in the blue passages a very distinct coincidence of Tan, Quek and Wong at various locations around the world where indeed Mr Dunn has suggested Quek and Wong were drug couriers, but you haven't put Quek and Wong forward as drug couriers who were in the drug business with Tan other than for the importation on 27 October.
...
MILLER J: The question is, therefore, and this is what Mr Dunn has objected to, can you now at this stage, at this point, not having opened the case or presented the case on that basis, now make that switch, if that's what you're doing? It's a very powerful piece of evidence. Very powerful indeed."
35 In answer to a specific question from the Judge as to why the Crown wanted to lead details as to where Tan had travelled in the past, counsel replied:
"DEMBO MR: Just to show, your Honour – the jury may infer that all of this other travel by other people is a bit suss, but other people also travelled and here's one. There's their passport."
- The Judge said:
"If I was sitting as a juror and I saw those blue lines, I think I'd get a very big reaction."
In the event, the Judge concluded that MFI X could not be tendered and it did not become an exhibit in the trial.
36 Senior counsel for the appellant asked for the passport to be withdrawn. The Judge considered this but noted that the passport had been tendered and inspected already by the jury. In his view, to take it away from the jury might create more problems than not. In the end, his Honour said:
" ... I accept the defence proposition that it is therefore not relevant and more so potentially prejudicial to the accused to have a schedule of his travel arrangements before the jury such as is contained in this document.
(Page 14)
- It has been adverted to in evidence, it remains MFI X. We can't take away the fact that it has already been the subject of evidence but it seems to me that all I need do is tell the jury in relation to – when I'm directing them about speculation, 'You don't speculate about anything in this case. For example, you don't go to the passport of Mr Tan and start analysing that to do your own detective work because speculation is foreign to the process of reasoning of a jury. This case is presented simply on the evidence which is before this court,' because I think, Mr Dunn, the further I go into it, the more likely it is to alert the jury to the fact, 'Gee, there might be something in this.' "
37 In due course the Judge gave a direction as foreshadowed in the course of his summing up to the jury. He said:
"There is no room for looking for theories which are not supported by the evidence. For example, you don't get Mr Tan's passport and speculate on his travel, 'What was he doing in this place on that day? What was he doing in this place on another day?' Evidence shows he did travel widely but, as you have heard it said, he was a merchant. You don't speculate why he was in Thailand. You don't say, 'Look, he was in Thailand and Thailand has the Golden Triangle and it's a hotbed for drugs, therefore he must have been involved in drugs,' obviously. You and I have probably got stamps for Thailand in our passport and that does not mean we are associated with the drug trade. You don't look for theories and speculate generally."
- No complaint is raised about this direction.
38 In my opinion the question asked by counsel to Federal Agent Scantlebury in the course of cross-examination opened up for re-examination an analysis of travel by Tan, Quek and Wong between Singapore and Indonesia around and before the relevant period. It did not open up the issue of their travel over years and the coincidence of their being in the same countries at similar times.
39 The short answer to ground 1 is that no error of law is disclosed. Senior counsel for the appellant did not object to re-examination that explained or clarified matters in cross-examination and did not object when Federal Agent Scantlebury commenced reading the list. His objection came later, specifically to the tender of MFI X which was, in
(Page 15)
- the event, not tendered. The Judge dealt with any prejudice in his directions.
40 I return to ground 2 concerning the appellant's passport.
41 As the passport was tendered early in evidence, and was relevant and admissible, it can hardly be an error of law to allow it to remain as an exhibit.
42 In my opinion, the true question, although not well articulated in the grounds of appeal, is whether there has been a miscarriage of justice by reason of the introduction of impermissible and prejudicial material.
43 Refined to the circumstances of this case, the question really is: Following the re-examination, was the Judge's only option was to discharge the jury?
44 In Crofts v The Queen (1996) 186 CLR 427, the High Court in a joint judgment (Toohey, Gaudron, Gummow, Kirby JJ) said at 440:
" ... No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends on the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."
- The judgment went on to note the duty of the appellate court:
" ... The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ... "
(Page 16)
- Judge thought that any prejudicial effect could be overcome by a clear direction on his part. Senior counsel did not dissent from this view and at no time sought an order for discharge of the jury.
46 In Tripodina v Morabito (1988) 35 A Crim R 183 Yeldham J, at 191, remarked:
" ... The fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done."
47 In R v Wright [1999] 3 VR 355 the appellant sought to raise a ground of appeal about a supposed error in the Judge's charge. The application was refused. Phillips CJ and Charles JA, while agreeing with the reasons given by Callaway JA, added the following (at 356):
" ... The failure to take exception ... would almost necessarily be taken by a court of criminal appeal as an indicator that counsel present saw no injustice or error in what was done ... . It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal."
48 This passage was cited with approval and applied by Hasluck and Roberts-Smith JJ in Winning v The Queen [2003] WASCA 245.
49 In considering whether there has been a miscarriage of justice it is important to place the prejudicial material in the context of the whole trial.
50 The principal evidence against the appellant was that of his accomplices Wong and Quek.
51 No objection is taken to the Judge's directions as to the manner in which the jury were required to scrutinise the evidence of Wong and Quek. Their evidence was supported by a number of circumstances. The re-examination of Federal Agent Scantlebury did not affect their credit at all. Although the MFI X was displayed on the document camera for a period of minutes, while the list of destinations was read out, there was no attempt by the Crown to draw any inference adverse
(Page 17)
- to the appellant from the material. In due course the jury were directed not to speculate.
52 Having reviewed the transcript of the whole trial, I do not consider that the re-examination of Federal Agent Scantlebury caused any miscarriage of justice. Any prejudice was effectively countered by the Judge's directions. In consequence, I would dismiss the appeal against conviction.
Appeal against sentence
53 The appellant's first ground, that his sentences were disparate with those imposed on Quek and Wong, is without merit.
54 Disparity per se is not a ground of appeal. In this case the disparity was explained by numerous differences between Quek and Wong on the one hand and the appellant on the other, including:
The appellant was sentenced for 8 counts; Quek and Wong for 2.
The total amount of prohibited drug was much greater in the appellant's case.
Quek and Wong pleaded guilty at the first available opportunity and gave evidence for the prosecution thus earning a further discount for co-operation.
The appellant was the immediate organiser of the importation.
55 The Judge was well aware of the sentence for Quek and Wong expressly noting the need for some parity. The differences I have outlined explain any disparity.
56 The appellant's second ground is that the total sentence was manifestly excessive. The substance of the Judge's sentencing remarks are set out in the judgment of Wallwork AJ.
57 The evidence amply justified the trial Judge's conclusion that the appellant was the immediate organiser of the importation of 5.46 kg of pure methylamphetamine, together with significant quantities of other drugs.
58 I consider the Judge correctly sentenced the appellant for what he had done, not for his role in any organisational hierarchy; cfR v Olbrich (1999) 199 CLR 270.
59 It must be accepted that the appellant's family would suffer as a result of a lengthy sentence of imprisonment and that the appellant will
(Page 18)
- be isolated from his family and friends while imprisoned in Australia. These are matters which the Judge was required to take into account: Crimes Act s 16A, and did. The isolation is a matter to which only limited weight can be given: R v Mustafa (2002) 133 A Crim R 133. It is an almost inevitable consequence when a person is caught smuggling: R v Ferrer-Esis (1991) 55 A Crim R 231.
60 The appellant argues that the Judge placed too much emphasis on the weight and quantity of the drugs. However, while noting that the quantity of drugs was "very substantial by any standards", expressly commented "this is not the determinative factor to be taken into account".
61 The Judge directed his attention to all relevant factors including mitigating factors. I am unable to conclude that the total sentence of 20 years, with a non-parole period of 10 years, exceeded the exercise of a proper sentencing discretion.
62 I would grant leave but dismiss the appeal against sentence.
63 WALLWORK AJ: The appellant appeals against his convictions and sentence on eight counts of importing into Australia methylamphetamine, amphetamine, MDMA and heroin. The gross weight of the drugs involved in the eight counts on the indictment was 11 kg. The appellant was sentenced to 20 years' imprisonment with a non-parole period of 10 years.
Facts
64 The appellant was arrested on 27 October 1999 at the Perth airport. He had travelled from Singapore to Perth with a female associate, Ms Lim. On the same flight as the appellant and Ms Lim were Mr Wong and his wife Ms Quek. It was alleged by the Crown that the appellant had organised the importation of prohibited drugs into Australia with the aid of Wong and Quek as couriers.
65 After they arrived at the airport Wong and Quek were discovered to have drugs in their possession. They then assisted the investigating authorities with the apprehension of the appellant. Ms Lim, the appellant's travelling companion, was also found to be carrying a significant quantity of prohibited drugs. She initially advised the investigating officers that the appellant had nothing to do with the importation but later agreed to give evidence against him. She did this at the first trial. The jury was not able to agree on a verdict at that trial.
(Page 19)
- Ms Lim did not give evidence at the second trial at which the appellant was convicted on the relevant counts.
66 The Crown alleged that the appellant was the organiser of the importation of the prohibited drugs carried by Wong and Quek; that the appellant had recruited Wong and Quek after meeting them on Batam Island, in Indonesia, in about June or July 1999. It was alleged that some time after that meeting the appellant had contacted Wong on a mobile telephone number given to him by Wong. By this stage it was said that Wong had significant gambling and tax debts; that an agreement was reached that Wong and Quek would take drugs from Singapore to Perth. It was alleged that the appellant had arranged to meet them at the New Otani Hotel in Singapore prior to them travelling to Perth.
67 Wong and Quek gave evidence that the appellant had met them at the New Otani Hotel and had provided them with packages of drugs, which he had assisted them to fix to their bodies. He had also asked them to carry a tartan bag for him as he had too much luggage. They claimed that he had advised them that the bag contained foodstuffs. In fact it had contained a large quantity of prohibited drugs.
On appeal
68 It was said for the appellant that the Crown case had proceeded on the basis that Wong and Quek were first time couriers and had not associated with the appellant prior to meeting him at Batam Island.
69 There were only two grounds argued on the appeal. The first one was that the learned trial Judge had erred in allowing irrelevant and prejudicial re-examination not arising from cross-examination which concerned a schedule which became MFIX. That schedule showed a correlation of the travel of the three persons concerned in the offences, being the appellant and Wong and Quek prior to their relevant arrival in Perth.
70 The second ground of appeal argued was that the learned trial Judge had erred in allowing the appellant's passport to remain as an exhibit and to go to the jury. The problem as seen by the appellant was that the passport showed extensive travel around the world by the appellant prior to the alleged offences. It was contended that the jury could have inferred that the appellant, and Wong and Quek had been meeting for some time in various places throughout the world in connection with illegal drug activity.
(Page 20)
71 Counsel for the appellant advised the Court that he proposed to argue grounds 1 and 2 as one ground, effectively "because they really relate to the same point, that being the travel of the appellant". It was submitted that the essence of the appeal was that the travel schedule should not even have been even alluded to by the Crown prosecutor. It was submitted that it was never admissible or relevant and subsequently when it was referred to, it had compounded the effect of the passport which had been earlier tendered.
72 The importance of the schedule showing the prior correlation of the travel of the appellant, Wong and Quek involved the fact that the Crown contended at the trial that Wong and Quek were witnesses of truth. They had said in evidence that they had not met the appellant prior to meeting him in June or July 1999 on Batam Island.
73 The appellant contended that it could be inferred from the schedule, which was shown to the jury on a screen in the Court, that Wong and Quek had known the appellant and been associated with him for a lot longer than they had asserted in evidence.
74 Wong and Quek claimed that they had never couriered drugs before. The Crown had not alleged in opening or in the trial up to the point when the schedule became relevant, that the appellant had ever met Wong or Quek prior to him meeting them on Batam Island in June or July 1999. The Crown did not allege that Wong and Quek had been involved in drug trade prior to this relevant importation. The appellant contended that the Crown had not led in evidence details of the appellant's travel prior to the alleged meeting on Batam Island in June or July 1999; nor had it been any part of the Crown's case.
The prosecution case
75 Before dealing with the question of the schedule it is important to look at the case from the prosecution's point of view to see how it all fitted together. This is because the jury ultimately accepted the evidence for the prosecution in convicting the appellant.
76 The trial had been opened on the basis that in or about June or July 1999 the appellant met Wong and Quek at Batam Island, in Indonesia. They were at a disco called the Ozone. There was a conversation about the importation of narcotics to another country. The evidence of Wong and Quek was that at that time they were not keen on the project. However a few weeks later they met the appellant again at Batam Island. They were then interested in importing narcotics because they
(Page 21)
- had debts. The appellant advised that he would be in contact with them later.
77 Wong and Quek then had a brief holiday in Australia. They had contact with the appellant by phone in October. An arrangement was made that they would meet in Singapore at the Otani Hotel. They eventually met at the hotel. The appellant's credit card was used to arrange the booking. An overnight stay was booked for Wong and Quek. In fact they only stayed in the hotel for about six hours. The Crown case was that the appellant had strapped packages of narcotics to the body of Wong. He had assisted Wong to strap packages of narcotics to his wife, Quek. Wong and Quek said the appellant then asked them to take an extra bag with them because he had six or seven of his own. They said that he told them there were only foodstuffs in the bag and they acceded to his request.
78 Wong and Quek were booked into the Otani Hotel on the same floor, with rooms facing each other. The hotel bill was later paid by the credit card of the appellant's associate, Lim, who travelled with him to Australia. The four people were on the same flight to Perth.
79 At Perth a sniffer dog led to drugs being found on Lim. Drugs were also found on Wong and Quek. Wong and Quek gave evidence to say that they were to meet up with the appellant at the Burswood Hotel.
80 During their evidence, Wong and Quek were cross-examined at length on issues of credibility. They were emphatic that the appellant had helped secure the drugs on their bodies, had paid their accommodation and their airfares and had generally organised the importation. The appellant did not give evidence.
81 The learned Judge gave an appropriate accomplice warning. The jury convicted the appellant. The argument on appeal arose from the introduction of the schedule, showing the correlations of the travel of the appellant Wong and Quek. It was not part of the Crown case initially.
82 Counsel referred to the schedule as having on its second page two blue lines. The blue lines relate to the correlation of travel of the appellant, Wong and Quek in the Netherlands and Europe generally. It also relates to travel in Thailand. Then there was an Australia/New Zealand correlation on 14 October 1999. It was submitted it had a striking effect when it was displayed on the overhead projector to the jury.
(Page 22)
83 What happened was that senior counsel for the defence was cross-examining Officer Scantlebury. He asked the officer if he had had available the appellant's passport and whether he had been able to check the appellant's travel movements. The officer said yes. He was then asked questions about whether the passport showed that on the evening of 25 October the appellant had arrived at Singapore. Again the answer was yes. The officer was then asked if he had been to the Ozone Club on Batam Island. Again he answered yes. Senior counsel then asked:
"Whilst dealing with the question of travel movements, did to your knowledge a police officer called Mr Muddle - was he asked to look into the travel arrangements, to look at correlations and patterns of travel by all of the persons who were charged?"
- Officer Scantlebury answered yes. That matter was then left, as it were, hanging in the air. Senior counsel went on to ask other questions, amongst other things relating to the obtaining of evidence from Wong and Quek.
84 Senior counsel then returned to travel and asked "Did you make any enquiries as to the recording of Singaporean citizens coming and going from Singapore?". Mr Scantlebury said no. Senior counsel then asked the police officer whether he had made any enquiries at Changhi airport to see if they retained video from their security cameras showing people coming and going from the airport. Again, the answer was no. There were further questions about possible enquiries concerning Singapore citizens going to Batam Island and coming back; also as to enquiries from the Sydney customs and the New Zealand customs as to the travel movements of Wong and Quek coming in and out of New Zealand and Australia in October 1999. Re-examination then commenced.
85 The police officer was asked by prosecuting counsel "It was put to you in cross-examination that you looked at Tan's passport during the course of the investigation?". The police officer answered yes. He was then asked "Was it you who prepared this schedule that I have in front of me?" The answer was "I caused that to be, not me personally but …". The officer was then asked to have a look at the document "And the reason I'm going to show it to you is so that you don't necessarily, unless you wish to, look at every travel movement that I'm going to put to you. So would you just confirm if you would check that aide?".
(Page 23)
86 Senior counsel for the appellant then said "Your Honour I have no objection to this as long as it's relevant to - it's re-explaining something in cross-examination that needs to be - some ambiguity which needs to be made clear".
87 In answer to a question from the Judge, senior counsel then confirmed that he had asked about a passport stamp concerning the appellant going into Singapore on 25 October. The Judge said "It must have been another witness you asked about whether they had analysed Quek and Wong …". Senior counsel said, "I asked whether somebody had done that and I was told - I think it was a Mr Muddle". The Judge said, "That's right. I think you said - was it to this witness - that Mr Muddle had analysed all the travel, Tan, Quek and Wong, I think you said". Senior counsel said "I did". The learned Judge then told senior counsel that he thought that in re-examination the learned prosecutor was entitled to refer to the analysis of Tan's travel done by Mr Muddle. It was conceded by senior counsel that "If it's of assistance to the jury and it explains some ambiguity in the cross-examination, your Honour … or clarifies yes; clarifies some points the jury think may be of assistance."
88 The Judge then authorised prosecuting counsel to go ahead and ask questions about the schedule which showed previous travel of Quek, Wong, Lim and Tan. Counsel informed the trial Judge that the defence had had access to the document. He then asked questions initially about Mr Tan's travel, which relevantly for the purposes of the passport, started in November 1998.
89 Senior counsel for the defence then said, "The thing is, I should just articulate, I don't mind this going to the jury, I think it should, but it has other person's travel as well". It was then suggested that the schedule be put on the screen so that the jurors could see it. That was done.
90 The schedule showed travel starting on 6 November 1998. Senior counsel then said, "Can I just enlarge on that your Honour? When I said I hadn't intended to tender it, it doesn't mean I am not prepared to tender it. If it's called for I won't object".
91 The witness Scantlebury then read out Tan's travel from the schedule, commencing on 6 November 1998. That showed multiple international journeys involving Hong Kong, China, Singapore, Indonesia, Macau, Malaysia, Thailand, Netherlands, France and Australia. The officer was asked by the prosecutor whether or not the
(Page 24)
- schedule also showed travel information in the case of Quek and Wong going through from 1991 right through to their last trip to Australia, being 27 October when they were arrested. He said that was correct. There was other information regarding the woman Lim. When the prosecutor said he would tender the schedule, senior counsel asked that it be marked for identification and it was marked MFIX.
92 At the luncheon break which occurred shortly thereafter, the trial Judge told counsel he wanted to raise with him the question of the tender of MFIX. Senior counsel for the appellant then said he had objected to the re-examination that extended beyond any clearing up of any ambiguity. He said he thought he had made that perfectly clear. Colourfully, he said "If something is mentioned in cross-examination - the moon - it doesn't mean that one goes into the lunar phases for the last five years --- because it's not relevant and it's not an ambiguity".
93 The trial Judge reminded senior counsel that he had asked the witness if a Mr Muddle had prepared a schedule of travel arrangements of the various people and that that had prima facie seemed to justify the reception of the schedule. Senior counsel then objected and said that if the production of the schedule was "a naked attempt to try to create a prejudice by inadmissible and otherwise irrelevant evidence, then I will apply for a discharge of this jury now".
94 The trial Judge pointed out to counsel that the passports were before the jury and had been exhibited and that the travel taken by each of the three was clearly revealed within the passports. The schedule set out in practicable form the precise travel arrangements. He pointed out that Quek and Wong had been cross-examined, in effect, to say that they were professional drug couriers.
95 The trial Judge asked the prosecutor what was the purpose of the tender. He was told that it was a summary of the passports rather than the jury spend hours going through the travel stamps. It was then pointed out by the trial Judge that the schedule had a rather dramatic effect:
"It shows in the blue passages a very distinct coincidence of Tan, Quek and Wong at various locations around the world where indeed Mr Dunn has suggested, Quek and Wong were drug couriers, but you haven't put Quek and Wong forward as drug couriers who were in the drug business with Tan other than for the importation on 27 October".
(Page 25)
- The prosecutor said "That's quite right".
96 The trial Judge said the question was whether the prosecutor could then, at that stage, "at this point not having opened the case or presented the case on that basis, now make that switch, if that's what you're doing? It's a very powerful piece of evidence. Very powerful indeed".
97 In answer counsel advised the Judge that the case had progressed with two days of cross-examination of travel. It was submitted that there was no evidence that either Quek, Wong or Tan had ever couriered drugs before and the Crown was not putting that forward. The Judge said, "But that's the distinct conclusion that a juror could reach by looking at MFIX". It was put pointed out that the jury could look at the passports for the same purpose.
98 The Judge pointed out to counsel that the schedule supported the proposition that:
"they are all in drug running and have been for some time around the world. You can't have it both ways. If you are putting this document in, its to prove that because it does prove it. Well it doesn't prove it, but it gives circumstantial evidence from which you could reach the conclusion that that is so. You see the quandary you are in?"
99 The Judge then ruled that the schedule could not go in because it was prejudicial. He said that what the schedule did was to lead "one to the conclusion that they had been previously involved in drug running, but if that's not the Crown case, then it would be too prejudicial to let it in". The Judge remarked that if he was sitting as a juror and saw "those blue lines, I think I'd get a very big reaction".
100 Senior counsel for the defence then told the Judge that his first complaint was that there was no ambiguity in the re-examination that needed to be cleared up in that way. His second complaint was that the production of the document at that stage of the trial would create a real handicap to the defence because "we came along to meet the case as opened in this trial" and at the last trial. If the Crown case was going to be different then the defence might have conducted itself in a different way, or taken different steps. He pointed out that what had been led from the appellant was that he had a business and employed a number of people and imported homewares and arranged for their distribution. It was submitted that the fact that the appellant travelled quite extensively - if that was going to be a relevant fact in the case, which it hadn't been up until then - up until within an hour or so of the Crown
(Page 26)
- case closing - it would have been something the defence would have wanted to debate with the learned trial Judge as to the admissibility of that evidence. It was submitted that it was irrelevant but its potential prejudice was great; that the jury could misuse the evidence. Unless they were very carefully instructed, they might say "He travelled, therefore he's a drug dealer or 'It's a bit sus', if I could use my learned friend's words".
101 The Judge pointed out that the passports of the appellant, Wong and Quek were already in evidence and that the appellant's passport showed first of all how he came to Singapore on what date, and how he came into Australia on the day in question. The Judge said that to take the appellant's passport away from the jury at that stage might create more problems than not.
102 Importantly, senior counsel then advised the trial Judge that he was going to ask him to tell the jury that there was no relevant or permissible inference which could be drawn from the fact that the appellant had travelled. It was squarely put by the trial Judge that:
"The only purpose for which the Crown would be producing it would be to show that he travelled extensively around the world and is in all probability a drug dealer and that's exactly what you are opposing --- because their case is that on this occasion he organised a drug run with two novices who had not previously been drug runners. You say he didn't organise a drug run at all but they certainly are professional couriers".
103 Counsel for the defence agreed with that. The Judge then told counsel that he accepted the defence proposition that the schedule was not relevant and more so, potentially prejudicial to the accused to have a schedule of his travel arrangements before the jury, such as were contained in the document.
104 Senior counsel for the defence then advised the Judge that he would be "more than happy if the schedule stayed as an MFI and if the Judge were to say to the jury that speculation - one of the things that can be said, for example, is that people travel and just because they travel, doesn't mean they are drug couriers or they are anything like that." His Honour then ruled that the passport of the appellant should remain in evidence because to withdraw it "creates more problems to withdraw it than to leave it in". Senior counsel for the defence then said:
(Page 27)
- "If your Honour pleases I am pre-empted from making the argument I was going to make to your Honour and I will sit down".
105 The learned Judge then ruled that the schedule would remain MFIX and that the appellant's passport should remain as an exhibit. He then said:
"… the passports of Quek and Wong are in and the passport of Tan is relevant in that it demonstrates the date he came to Singapore, which is the only point which is to be drawn from it. I would give the jury a warning - 'You don't start analysing and doing your own detective work, speculating about what he might or might not have done. The travel does not of itself equate to any criminal conduct and you can't conclude that because Mr Tan might have travelled all over the place that this gives you any clues to the determination of the case. To the contrary. You can't.' "
106 The Judge also pointed out to counsel that the question of the credibility of Wong and Quek and their entries in their passports had been the subject of extensive cross-examination "one by one, so it is not for me to say to the jury that they can't speculate about Quek and Wong".
107 When summing up at the end of the trial the learned Judge said:
"There is no room for looking for theories which are not supported by the evidence. For example, you don't get Mr Tan's passport and speculate on his travel, 'what was he doing in this place on that day? What was he doing in this place on another day?' Evidence shows he did travel widely but, as you have heard it said, he was a merchant. You don't speculate why he was in Thailand. You don't say 'Look, he was in Thailand and Thailand has the Golden Triangle and it's a hot bed for drugs, therefore he must have been involved in drugs,' obviously. You and I have probably got stamps for Thailand in our passport and that does not mean we are associated with the drug trade. You don't look for theories and speculate generally."
108 His Honour further said:
"The Crown accepts that Quek and Wong may not be squeaky clean - Mr Dembo's words. No doubt, he says, they have
(Page 28)
- travelled extensively. No doubt they are criminals. They have been convicted here of being drug couriers. The fact that they may have couriered drugs elsewhere makes no difference, says Mr Dembo, other than in the context of whether you can accept their evidence. He says even if they had been couriers in the past, it does not mean that Tan was not knowingly concerned in this importation, and that of course is correct and I told you that earlier."
109 Further on, when referring to defence counsel's submissions, the learned Judge said:
"He refers to Tan's passport and says, 'Yes, he has travelled extensively but I ask you to take this into account: there were limited opportunities for Quek and Wong to have met him in July, October if you look closely at the passport.' That's a pretty hard task actually because there are stamps all over it. So in the end Mr Dunn says this: it's really down to whether you accept Quek and Wong. He referred in detail again to their shortcomings and I'm not going to go through it again. You cannot be satisfied he said beyond reasonable doubt of the guilt of Mr Tan."
110 The question of the proper conduct of re-examination was considered in the R v Lavery (1979) 20 SASR 430 at 451. In that case the reasoning of Wells J was agreed to by Walters and White JJ. At 451, Wells J said:
"Ambiguity in an answer given in cross-examination is, of course, an obvious justification for re-examination designed to resolve the doubt created, but to say that re-examination is confined to questions aimed at removing ambiguities is absurd, for re-examination is allowed for much wider and more important purposes. It is to be permitted, in my opinion, whenever an answer or answers given by a witness in cross-examination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as the witness is able to present it - cf R v Pullman [1942] SASR 262."
(Page 29)
111 In this case the travel movements of the witnesses Wong and Quek were the subject of adverse criticism by the defence. Not only that, those two witnesses were, in effect, accused of being experienced drug couriers. The appellant, on the other hand, was presented as an innocent business man who had not been involved in the importation of the drugs.
112 After defence counsel had asked the question of Officer Scantlebury, whether another police officer called Mr Muddle had been asked to look into the travel arrangements, to look at correlations and patterns of travel by all of the persons who were charged, and officer Scantlebury said yes, the matter was left in the air by defence counsel. Had it not been followed up in re-examination by the prosecution, the suggestion may have been made that there was nothing in those "correlations and patterns of travel by all of the persons who were charged", which Mr Muddle had looked into. That could have thrown doubt on the prosecution case.
113 In my view in that situation, the prosecutor was entitled to lead evidence as to those correlations and patterns of travel. There was then the question of what should be done with the answers and whether grave prejudice had been caused to the defence.
114 It is important bear in mind what the appellant's counsel said to the trial Judge about the schedule and what the trial Judge did about it. The relevant extracts have already been set out in these reasons.
115 In Lavery (supra), Walters J said:
"Admittedly, the failure of the accused's counsel to take objection to a summing up will not, of itself, deprive an appellate court of its power to interfere if there has manifestly been a mistrial or a miscarriage of justice, since it is obviously the duty of the court to ensure that an accused person has had a fair trial and to prevent a miscarriage of justice. On the other hand, the failure of counsel to object to the terms of the summing up will have an important bearing on the question whether any miscarriage of justice has occurred, so as to entitle the accused to a new trial; a point not taken at trial should not lightly be made a ground for quashing a conviction - Stirland v Director of Public Prosecutions [1944] AC 315 at 328."
(Page 30)
116 In this case, senior counsel for the appellant first of all raised the matter of the "correlation and patterns of travel by all of the persons who were charged". It is common ground that he had known of the schedule for some time before the first trial. He knew what was in it. Knowing this, he brought evidence of it into the trial, no doubt for a good reason. Having done that, he then agreed with what the learned trial Judge should say to the jury about it. He did that, knowing that the passports of the appellant, Wong and Quek would be before the jury.
117 In my view, and assuming senior counsel raised the matter for a good forensic purpose, such as to perhaps suggest to the jury that there was nothing in "the correlations and patterns of travel", there is no reason now to suppose that the introduction of that evidence and the admission of the passports into evidence, have resulted in any miscarriage of justice.
118 The trial Judge was well aware of the ramifications of the evidence and discussed it with senior defence counsel. This is not a case like Maric v The Queen (1978) 20 ALR 513 which was relied on by the appellant for the proposition that "no direction could cure the wrongful admission of the evidence which was so prejudicial and irregular that it would be impossible to conclude that no miscarriage of justice had occurred."
119 In this case there was no wrongful admission of evidence. Nor could it be said that the evidence relating to the appellant's travel resulted in the trial process miscarrying to such a degree that he did not receive a fair trial.
120 In his argument before this Court, counsel for the appellant has made a number of submissions, including that it was not part of the Crown case that there was anything relevant to the appellant's prior travel before the alleged meetings in June, which would impact on the case. However, it was not the Crown which introduced the evidence. It was senior counsel for the defence.
121 Also, the passports were important to establish the arrival in Australia of the three persons concerned. Further, the appellant's passport was used by the defence to establish that he was not in Singapore prior to 25 October. The passports were important to both the prosecution and the defence. They were put into evidence originally without objection.
(Page 31)
122 No application was made by senior counsel to discharge the jury. I think it is fair to say from the exchanges set out earlier in these reasons, that defence counsel was content for the Judge to deal with the matter by way of direction. Once that had been done, no further complaint was made to the trial Judge.
123 With respect to the passports of the appellant, Wong and Quek, they were put in evidence by the Crown to show that these persons had entered into Australia at a particular time and had come from Singapore. They also indicated that there was opportunity for the three persons to have met in Indonesia. The defence wanted to cross-examine concerning the passports of the two couriers and also that of the appellant.
124 In my view there has been no error or miscarriage of justice demonstrated.
125 I would dismiss the appeal.
Application for leave to appeal against sentence
126 The appellant seeks leave to appeal against the total sentence of 20 years' imprisonment with a non-parole period of 10 years on the ground that the sentence is disparate with the sentences received by Wong and Quek.
127 It was conceded that the sentences of Wong and Quek related only to count 1 and count 5 on the indictment because Wong and Quek were only sentenced in relation to the drugs they had carried on their bodies. They were not sentenced in relation to the wider importation, which included other counts. The appellant was so sentenced.
128 The sentences imposed on the appellant were ordered to be served concurrently. On counts 1 and count 5, which were being knowingly concerned in the importation into Australia of quantities of methylamphetamine being not less than the trafficable quantity, the appellant was sentenced to 20 years' imprisonment on each count. In his sentencing remarks, the Judge said that the methylamphetamine in body packs weighed 2610 grams and that in the luggage, 2855.87 grams, being a total of 5465.87 grams in net pure amounts.
129 His Honour accepted the prosecution's submission that it was arguable that the total amount of methylamphetamine, if sold in bulk, would have had a street value of around $2.5 million and thereafter if
(Page 32)
- broken down into so-called street deals, that the street value of that drug could have been in the vicinity of $7.5 million.
130 With respect to the importation of the methylamphetamine, his Honour said that it was at the higher end of the scale, "That's not to say it is the worst case but it is at the higher end of seriousness".
131 The maximum penalty applicable in relation to each of the methylamphetamine, MDMA, and amphetamine importations was imprisonment for 25 years or a fine not exceeding $500,000, or both.
132 Apart from the methylamphetamine, the MDMA or ecstasy in the luggage weighed 47.26 grams. The amphetamine in the luggage weighed 14.7 grams. The heroin in the luggage weighed 1.504 grams.
133 Concerning the total quantity of methylamphetamine, his Honour said it was more than 2700 times the trafficable quantity.
134 When sentencing the appellant the Judge was aware of and took into account the sentences which had been imposed upon the co-accused Wong and Quek. When sentencing the appellant, his Honour said that the appellant was undoubtedly above Wong and Quek in the hierarchy of involvement in the importation. He told the appellant that on 9 June 2000 Wong was sentenced to 10 years' imprisonment with a minimum term of 5 years before eligibility for parole and that Quek had been sentenced to 8 years' imprisonment with a minimum term of 4 years before eligibility for parole. Both sentences were backdated to 27 October 1999, the day on which the offenders were taken into custody.
135 The Judge considered that before taking into account any matters in mitigation in relation to Wong and Quek the starting point was 14 years for Wong and 12 years for Quek. He thought that Wong was the prime-mover of the two, being older, and in all the circumstances more criminally responsible than Quek. Each had their sentences reduced by 2 years to allow for their pleas of guilty, and received a further 2 years reduction to take into account their promises of future co-operation.
136 The Judge said he took into account that the Judge who sentenced Wong and Quek had said:
"I am satisfied that each of you were couriers and nothing more. Having said that, however, it should be said that your offending is still to be regarded as falling into an extremely
(Page 33)
- dangerous category, an extremely serious category. Couriers are after all vital cogs in the machinery of distribution and unless couriers are seen to be firmly dealt with, their recruitment by suppliers of drugs will not be discouraged."
- His Honour regarded Wong and Quek as of previous good character.
137 The Judge who sentenced the appellant said that he had not reached the same conclusion about Wong and Quek concerning their previous good characters. His Honour also said that there should be some parity between the sentences he was imposing and those on Wong and Quek, "But it must be appreciated that their convictions related to less amounts of the ice imported, only what was on them, and they received substantial discounts not applicable to you".
138 With respect to count 2, which was concerned with ecstasy, his Honour ordered that the appellant would be imprisoned for 5 years. On count 3, which was concerned with amphetamine, his Honour said the appellant would be imprisoned for 4 years. On count 4, concerning the heroin, his Honour imprisoned the appellant for 1 year. On count 6, which concerned ecstasy, the appellant was sentenced to 5 years' imprisonment. On count 7, which was again amphetamine, the appellant was sentenced to imprisonment for 4 years. On count 8, which concerned heroin, the appellant was ordered to be imprisoned for 1 year.
139 As stated above, all those sentences were ordered to be served concurrently with the other two sentences of 20 years' imprisonment, which were also ordered to be served concurrently.
140 The appellant complaints that when regard is had to the starting points of the sentences of Wong and Quek, the sentences imposed upon the appellant are disparate. He concedes that the Judge said that the fact that the appellant had pleaded not guilty "doesn't aggravate the situation in any way, shape or form but, on the other hand, it is not a mitigating factor". However, he submits that the appellant was denied the discount afforded to Quek and Wong for their "fast track" pleas of guilty and is therefore been discriminated against because of the fact that he was convicted after trial. Counsel relies on the comments of McHugh J in Cameron v The Queen (2002) 209 CLR 339 at 353 - 354 for that last submission.
141 It is to be noted that other Judges in Cameron (supra) did not agree that a person could not receive a discount for an early plea of guilty, providing that the plea indicated a willingness to facilitate the
(Page 34)
- course of justice. A significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.
142 It was also contended for the appellant that the sentence overall was manifestly excessive. The point was made that the weight and quantity of the drugs involved is relevant to, but not the primary factor in determining, the sentence - Wong v The Queen (2001) 207 CLR 584. It was conceded that the overall circumstances of the offence should be the primary factor governing the seriousness of the offence. However, it was submitted that the sentencing Judge placed too much emphasis on the overall weight and quantity of the drugs involved; also that the sentences did not properly reflect the role of the appellant, albeit as an "immediate organiser", or the impact which his incarceration would have upon his family and business. The appellant has two children, a wife and business in Indonesia. They will undoubtedly suffer as a result of his lengthy term of imprisonment. The appellant will be isolated from family and friends who are outside of the jurisdiction.
143 When sentencing the appellant the trial Judge had before him a pre-sentence report which, amongst other things, stated that the appellant's wife had a business which was involved with cleaning air conditioners. He knew that the elder of the two children (the younger one being 7 years of age) had terminated his education to seek employment.
144 At the time of sentence the appellant was 50 years of age. He was a third generation Indonesian national of Chinese extraction. He had completed his basic education in Indonesia and had then left school to work and assist with the family's welfare. He had no prior convictions. On the sentencing it was submitted for the appellant that Wong and Quek were far more involved in the trade than the appellant.
145 During the course of his sentencing remarks the Judge indicated that he accepted that the appellant was the immediate organiser of the importation, which was not to say he was the ultimate organiser. There might have been others above him. He might have been in the chain but he was the immediate organiser of the importation.
146 It was the Crown's submission that the importation was in the worst category of cases, not only because of the sheer weight of the drugs but because of the fact that couriers were duped into doing what they did. They were "conned" into bringing in a bag of what appeared to be foodstuffs and which could well have succeeded in passing the quarantine officers.
(Page 35)
147 The Judge said that the appellant had recruited Wong and Quek as couriers to bring the drugs into Australia. He said it was apparent that Wong and Quek were professional couriers. The appellant had provided them with the drugs in question and was undoubtedly the immediate organiser of the importation. His Honour accepted that the appellant had assisted in taping the drugs to each of the couriers and that he had given Wong a bag which contained drugs which the appellant had requested Wong to take into Australia for him. He accepted Wong's evidence that he had been led to believe that the bag contained foodstuffs. Further, at no time had the appellant informed either Wong or Quek of the fact that the bag contained drugs. The bag had contained the greatest quantity of drugs in the importation. In the bag was 2.8 kg pure of methylamphetamine, whereas in the body packs there was 2.6 kg pure.
148 His Honour said there was a marked degree of professionalism in the way the drugs were secreted in the various packets of foodstuffs. The packets had been professionally sealed. He was unable to find who had secreted the drugs in the foodstuffs.
149 His Honour commented that although he found that the appellant was an immediate organiser, that was not to say that he was the so-called mastermind. There may well have been persons above the appellant who were responsible for obtaining the drugs, having them packaged and then providing them to the appellant to pass on to Wong and Quek. His Honour said he was unable to reach any conclusions about that.
150 His Honour was satisfied that the appellant played an indispensable part in the organisation of the importation. He concluded that on the aircraft and at the airport the appellant was keeping an eye on Wong and Quek and that the appellant had arrived in Western Australia for the purpose of facilitating the ongoing distribution of the drugs.
151 Importantly, his Honour said that the facts revealed that the case was at the higher end of the scale of seriousness. That was amongst other things, because of the quantity of the drugs, the methylamphetamine in particular, and the professionalism of the operation.
152 With respect to the personal aspects, his Honour accepted that the appellant's family would be financially and emotionally affected by his imprisonment. He said he took into account the gravity of the offences
(Page 36)
- which were extremely serious and that the quantity of drugs was very substantial by any standards. He said that this was not the determinative factor, but must be taken into account. He also took into account that deterrent sentences were called for in relation to those who participated in the importation of drugs, particularly in relation to those who organised the imports. He specifically said that he took into account the appellant's character, antecedents, cultural background, age, means and "particularly the matters personal to you, to which I have referred: your age, lack of prior convictions and your background".
153 His Honour took into account the probable effect that any sentence would have on the appellant's family or dependents. He also took into account parity. He said, "It is essential in this case that I take into account the question of parity, that is, parity with the sentences imposed on the couriers". His Honour said that there was a distinction between the part played by Wong and Quek and that paid by the appellant.
154 The Judge quoted comments from Ipp J and Anderson J in decisions concerned with the distribution of harmful drugs in Australia. He said that the scale of importation in this case was extremely serious. A deterrent sentence was of primary importance. He ordered that the minimum term of 10 years commence from 27 October 1999.
155 It is important when considering questions of parity that the different circumstances and degrees of criminality must be considered - Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1984) 154 CLR 606.
156 Apart from the fact that he was an organiser, the appellant was sentenced for more importations than were the couriers. He was not entitled to deductions for pleading guilty and undertaking that he would give evidence against the other offenders, as were Wong and Quek.
157 It is the law that providing sentences of imprisonment imposed by Judges are not outside the proper range of sentences for the particular offences, appeal courts should not interfere with the discretion - Lowndes v The Queen (1999) 195 CLR 665.
158 It is my view that considering all the circumstances, the learned Judge was entitled to imposed the sentences which he imposed. There is no error of fact or principle which has been demonstrated by the appellant.
159 I would dismiss the application for leave to appeal against sentence.
3
26
1