Ung v The Queen

[2001] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S219 of 2000

B e t w e e n -

HEENG UNG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MAY 2001, AT 11.43 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear with my learned friend, MR G.P. CRADDOCK, for the appellant.  (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR D.J. FAGAN, SC:   If the Court pleases, I appear with my learned friend, MR H.W.D. STOWE, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Mr Game, there are really two discrete points, are they not, and the first one is the same as Brownlee.  Why do we not hear what both parties have to say on the second point today; do not say anything about Brownlee, and then we will see what the future progress ought to be after that.

MR GAME:   Yes, certainly.  We are happy to proceed in that way.

GLEESON CJ:   Now, you need an extension of time, do you?

MR GAME:   I think so, your Honour.  Yes, we seek an extension of time.

GLEESON CJ:   Is that opposed, Mr Fagan?

MR FAGAN:   No, it is not.

GLEESON CJ:   Yes, you have that extension.  So it is really the evidence point.

MR GAME:   Yes.Now, if you go to page 80 of the application book, there is the conversation and you see at line 30, Justice Smart said:

It was the reception of these words into evidence and their use which is the basis of the challenge to the verdict.

GLEESON CJ:   Just remind us what is going on here, Mr Game, in paragraph 14.

MR GAME:   Well, they are unloading, ostensibly, boxes that contain tins of pineapples and Mrs Ung is inside the container of the truck, and there is no audible response from the applicant, but she says to him or the Crown case is she says to him:

Too many heh.  Hey, hey, you don’t know which one?

That is the thing Mr Craddock was just telling - there is a camera.  It is seen on a camera.

GLEESON CJ:   Now, were the jury directed that they could accept what is described as the Crown case at line 30 on that point?

MR GAME:   That she said those words, yes, that is correct, your Honour.

GLEESON CJ:   No.  You see, line 30 says:

On the Crown case, the words meant ‑ ‑ ‑

MR GAME:   Yes, your Honour, the jury was so directed.  Could I just take your Honours back to page 36.  In the list of things that were being used against Mr Ung, we see at the bottom of the page:

The next circumstance the Crown relies upon is that Mrs Vo spoke in the vicinity of the accused whilst he was unloading the containers and that Mrs Vo said to the back of the container, “You don’t know which one.”

GLEESON CJ:   Now, before you go any further, you do not seek to appeal on the basis – you are not saying an error lay in leaving it to the jury; that they could construe those words as meaning, “You don’t know which ones contain the heroin”?

MR GAME:   No, your Honour.

GLEESON CJ:   All right.  Now, suppose what had actually been said was, “You don’t know which ones contain the heroin,” would the same point that you want to raise arise?

MR GAME:   Yes, your Honour.  Now, in the list of things on the page before is the evidence that is said to go to her knowledge, and that is at page 35 and that does not include her saying those words to him.  The way we would put it is that it is left to the jury as being used testimonially in the sense that that word was used in cases like Ratten. 

Now, the critical question is found at the bottom of page 91 of the application book.  It says this:

In the present case the representation was led to prove that the appellant knew that some of the canned tins of pineapple contained heroin.

From the passage that I have just gone through at pages 36 and 37, that is apparent.  Now, on the next page is says:

It was not led to prove that some tins did contain heroin although that was the fact which Mrs Vo intended to assert.

Now, the critical question in this case for the purposes of the Evidence Act, is whether or not Mrs Vo, although it is an implied assertion, and implied assertions are picked up by representations, intended to assert that the appellant knew that some of the tins contained heroin or whether that was an unintended implied assertion.

Now, the way in which the Court of Criminal Appeal appears to have approached it is that the Evidence Act was not a code, and one sees that on page 92, and on 90 that the evidence was part of the res gestae, and that is at line 35.  Now, we say that that analysis is not correct because the Evidence Act is clearly a code in respect of both what is relevant and in terms of the identifications of the exclusionary rules.  So that the answer to this case – and we say that is a special leave point, whether or not the Act is a code of admissibility.

The answer to this case is really to be found in a question that the Court of Criminal Appeal did not pose for itself.  The answer to the case is whether or not - if it is to be used as evidence that appellant knew, then the question is was that an intended or unintended implied assertion.  Now, the answer to that question is to be found in what is meant by “intended” in section 59.  Now, if “intended” just simply means knowingly communicated, then we would say it is intended.  If it means something more and something different in the sense of persuasive or intended to be implied, then we lose the case.

So the case turns entirely, in our submission, on what is meant - if it is to be used for this purpose, it turns entirely on what is meant by “intended” in section 59 of the Evidence Act. We say it is a question of general importance as to what “intended” means; how narrow is section 59 to be construed, and, if so, can the material be used testimonially in the sense in which it was used undoubtedly in this case.

It might be put against us and it is put against us in the written submissions that anyway this evidence was admissible to prove her knowledge.  Now, the Court of Criminal Appeal made this finding, which was that the evidence that she intended to insert that the tins contained heroin - that is at the top of page 92 - if that is correct, and, in my submission, Justice Smart is using “intended” there in the sense which I first put, which is “intended” must there mean no more than knowingly communicated; not “intended” in the intended to imply in the assertive or persuasive sense that I put, which is the construction that would result in us not succeeding on this application.

The point which is put against us is they say in any case it is admissible to prove her state of knowledge.  Well, if she did not - we have to accept, although it was not put this way; it does not appear to have been put this way from the summing up.  We have to accept that it would be admissible to prove her knowledge, but it would not be admissible to prove that the tins did contain heroin if she intended to assert that.  There is one qualification on that, which is if she intended to assert her knowledge, and that is a somewhat constrained construction of the application, then it would not be admissible to prove that either.

I have put that in a very short way, but that is, as we see it, the argument that warrants a grant of special leave and we put to the Court that ‑ ‑ ‑

GLEESON CJ:   If she had actually said - and this something a little advanced on the passage of the judgment, if she had actually said, “Some of those pineapple tins contain heroin, but you don’t know which ones”, there would not be any question of hearsay, would there?

MR GAME:   Well, unless there is an implied intended assertion, “And you do not know which ones”, which is that, “You know that some contain heroin.”  But another example might be this.  If she said in his absence, “Ung knows which ones contain the heroin,” and he is not there because it was not used as an implied admission by silence ‑ ‑ ‑

GLEESON CJ:   But what they were trying to prove was that Mrs Vo knew that there was some heroin.

MR GAME:   That is true.  That she knew – we have to accept that it is admissible to prove that she knew that some tins contained heroin, and we have to accept that that is so, but we say that it was not used - it is fairly clear from the summing up, that it was not used in that way, and it is also the critical question that was posed in the Court of Criminal Appeal whether it was admissible to prove the appellant knew that.  If that is the case, then a real question would come about whether or not it should either be entirely excluded or what directions the jury should be given on its use, if it is to be admitted for the more limited purpose that your Honour has put to me.

That is the way we put our submissions.  Just the other thing I was just saying which was that if she said to somebody else, because this was not used as an implied admission by silence of Ung; it was not like a Christie Case, somebody saying something in the presence of the accused and him not saying anything, and, therefore, an admission being established by that.  The jury certainly was not directed in that sense.  But if Ung was not there and she had said to somebody else, “Ung knows which tins have the heroin in them,” then that might be admissible to prove her knowledge

but it certainly would not be admissible, in our submission, to prove that Ung knew that the tins contained heroin.  Then, in our submission, it is the same as this case because there is nothing on his side to establish an acceptance of that by her.

Well, that is our submission on this point.  Can I just raise a procedural question.  If the Court on the one hand were to refuse leave on this question, then we would ask that the whole thing simply be stood over awaiting Brownlee.  On the other hand, if the Court were minded to grant leave, then we would, likewise, simply ask it be stood over to determine what happened to the other point because we would have to wait for the decision in Brownlee in that case.  Those are our submissions, if the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Fagan. 

On the aspect of the case that turns on the application of the Evidence Act 1995, the Court is of the view that the case raises no issue which warrants a grant of special leave to appeal. However, the applicant also wishes to raise another point which turns upon the application of section 80 of the Constitution. The parties are aware that is the same point as is the subject of a case Brownlee v The Queen in which this Court has reserved its decision.

The course that will be taken is this.  So much of the application as turns upon the point in relation to the Evidence Act is dismissed. The applicant, if so advised, has leave to restore to the list so much of the application as turns upon section 80 of the Constitution after the delivery of judgment of Brownlee v The Queen

We will adjourn to reconstitute.

AT 11.57 AM THE MATTER WAS CONCLUDED