Wong v The Queen
[2001] WASCA 32
•16 FEBRUARY 2001
WONG -v- THE QUEEN [2001] WASCA 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 32 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:127/1998 | 23 OCTOBER 2000 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 16/02/01 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Leave to appeal against sentence refused | ||
| PDF Version |
| Parties: | WAYNE FEE WONG THE QUEEN |
Catchwords: | Criminal law and procedure Conspiracy to import a commercial quantity of heroin of an amount 11.548 kg pure Evidence of co-conspirator to establish agreement Corroborative evidence before the jury Warning by trial Judge that it was "not desirable" to convict on uncorroborated evidence Whether warning should use the term "dangerous" Accused dismissed counsel at commencement of trial Trial proceeded with accused person unrepresented Whether trial should be adjourned Whether conviction unsafe Agreement made outside Australia to import heroin into Australia Whether Court had jurisdiction Evidence Conspiracy to import heroin Accomplice evidence to establish conspiracy Evidence capable of amounting to corroboration adduced Whether warning should include term "dangerous" Criminal law and procedure Sentencing Conspiracy to import a commercial quantity of heroin 11.548 kg of pure heroin Sentence of 24 years' imprisonment with non-parole term of 14 years 37 year old resident of Canada |
Legislation: | Customs Act 1901 s 233B(1) (cb) |
Case References: | Bromley v The Queen (1986) 161 CLR 315 Chew v The Queen (1991) 4 WAR 21 Crampton v The Queen (2000) 75 ALJR 133 Dietrich v The Queen (1992) 177 CLR 292 DPP v Doot [1973] AC 807 Liangsiriprasert v United States Government [1991] 1 AC 225 Longman v The Queen (1989) 168 CLR 79 R v Baskerville [1916] 2 KB 658 R v Fan (1991) 56 A Crim R 189 R v Frawley (1993) 69 A Crim R 208 R v Galluzzo (1986) 23 A Crim R 211 R v Greer (1992) 62 A Crim R 442 R v Small (1994) 72 A Crim R 462 R v Tripodi [1961] VR 186 at 190 Aydlett v The Queen, unreported; CCA SCt of WA; Library No 920346; 25 June 1992 R v Bollen (1998) 99 A Crim R 510 R v Zorad (1990) 19 NSWLR 91 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WONG -v- THE QUEEN [2001] WASCA 32 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- CCA 154 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Conspiracy to import a commercial quantity of heroin of an amount 11.548 kg pure - Evidence of co-conspirator to establish agreement - Corroborative evidence before the jury - Warning by trial Judge that it was "not desirable" to convict on uncorroborated evidence - Whether warning should use the term "dangerous" - Accused dismissed counsel at commencement of trial - Trial proceeded with accused person unrepresented - Whether trial should be adjourned - Whether conviction unsafe - Agreement made outside Australia to import heroin into Australia - Whether Court had jurisdiction
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Evidence - Conspiracy to import heroin - Accomplice evidence to establish conspiracy - Evidence capable of amounting to corroboration adduced - Whether warning should include term "dangerous"
Criminal law and procedure - Sentencing - Conspiracy to import a commercial quantity of heroin - 11.548 kg of pure heroin - Sentence of 24 years' imprisonment with non-parole term of 14 years - 37 year old resident of Canada
Legislation:
Customs Act 1901 s 233B(1) (cb)
Result:
Appeal against conviction dismissed
Leave to appeal against sentence refused
Representation:
Counsel:
Applicant : Mr L M Levy (Ground 2) and In Person
Respondent : Mr J A Scholz
Solicitors:
Applicant : Unrepresented Criminal Appellant's Scheme and In Person
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bromley v The Queen (1986) 161 CLR 315
Chew v The Queen (1991) 4 WAR 21
Crampton v The Queen (2000) 75 ALJR 133
Dietrich v The Queen (1992) 177 CLR 292
DPP v Doot [1973] AC 807
Liangsiriprasert v United States Government [1991] 1 AC 225
Longman v The Queen (1989) 168 CLR 79
R v Baskerville [1916] 2 KB 658
R v Fan (1991) 56 A Crim R 189
R v Frawley (1993) 69 A Crim R 208
(Page 3)
R v Galluzzo (1986) 23 A Crim R 211
R v Greer (1992) 62 A Crim R 442
R v Small (1994) 72 A Crim R 462
R v Tripodi [1961] VR 186 at 190
Case(s) also cited:
Aydlett v The Queen, unreported; CCA SCt of WA; Library No 920346; 25 June 1992
R v Bollen (1998) 99 A Crim R 510
R v Zorad (1990) 19 NSWLR 91
(Page 4)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Pidgeon J. I am in agreement with those reasons and with the orders he proposes. I am also in agreement with the additional reasons of Murray J.
2 PIDGEON J : The appellant stood trial before Wheeler J and a jury on a charge of contravening s233B(1)(cb) of the Customs Act 1901 by conspiring to import into Australia a commercial quantity of heroin. He was convicted and sentenced to a term of 24 years imprisonment with a non-parole period of 14 years. He is appealing against both his conviction and sentence. The appellant dispensed with the services of his counsel at the commencement of the trial in circumstances to which I shall later refer. He was thereafter unrepresented at the trial. At the hearing of this appeal he was represented by Mr Levy on the ground relating to her Honour's direction to the jury on the question of corroboration. He represented himself on the remaining grounds and on the application for leave to appeal against sentence. I shall deal firstly with the ground relating to the corroboration directions, this being ground 2. The ground arises as the evidence adduced to prove the agreement charged was the evidence of the other party to the agreement who was, by reason of that, an accomplice.
Crown Case
3 The Crown case was that the appellant, when arrested, had in operation a plan to import 15kg of heroin from Bangkok using Mauritius as an intermediate place to repack and despatch it as a consignment. An importation from Bangkok was more likely to come to the attention of customs officials. The Crown case was that the appellant asked Mr Thomas Chun-Kong Kan to assist him and this is the conspiracy alleged. The appellant was born in Taisan, China in 1962 but moved to Canada when he was three years old and became a Canadian citizen. Mr Kan was born in Hong Kong in 1967 and moved to Canada in 1988. In 1989 Mr Kan was introduced to the appellant in Toronto. In 1991 Mr Kan moved to Vancouver, but remained in touch with the appellant in Toronto. In 1992 Mr Kan attended the appellant's wedding in Montreal and thereafter Mr Wong, who was in Toronto, remained in contact with Mr Kan in Vancouver.
4 Mr Kan, at some stage, became addicted to heroin and cocaine and was a dealer in drugs in a substantial way. He admitted in cross-examination that he was a major drug dealer and that there used to be 100 persons under him. In 1996, when travelling to Hong Kong, he
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- used forged credit cards to purchase half a million dollars of goods. Although he had not been convicted of drug dealing, he has been convicted of a number of fraud counts of using false credit cards, fake currency and fake travellers' cheques. He admitted in cross-examination to using 100 false credit cards. He also admitted to lying to both to the police and National Crime Authority in Mauritius.
5 In August 1996 Mr Kan returned to Toronto in search of work and stayed at the appellant's house. In about December 1996 the appellant told Mr Kan that he intended travelling to the Far East, possibly Hong Kong or Macau (Macao). Mr Kan said that the appellant told him that he intended to import heroin into Canada and asked the appellant to assist him. The appellant asked Mr Kan to recruit a female courier who would bring the heroin back concealed in the lining of her clothes. Mr Kan, as part of the plan, became a subscriber to a mobile phone by the use of false documents. The appellant and the appellant's wife gave numbers to Mr Kan on which he could contact the appellant. The appellant flew to Hong Kong on 31 December 1996 and went to Macau. Over the next two or three months the appellant and Mr Kan spoke to each other by phone once or twice a week. In early March 1997 the appellant phoned Mr Kan and told him to fly to Hong Kong and from there to take the jet-foil to Macau and to meet him on or about 21 March. The appellant told Mr Kan to ring the appellant's wife on her pager and she would arrange his ticket. The appellant gave Mr Kan two phone numbers to enable Mr Kan to contact the appellant on his arrival in Macau. Mr Kan asked the appellant if Mr Kan needed a girl to bring back to Hong Kong and the appellant replied, "No just bring yourself."
6 Documents found in the appellant's possession showed that he travelled to Bangkok arriving on 8 March and he travelled to Macau on 14 March. The evidence to show this was a receipt found in the appellant's possession and which was in the name of "Mr Chow" for the deposit on a room in a hotel in Bangkok on 8 March. Entries in the appellant's passport showed that on 14 March he travelled from Bangkok to Macau. The appellant travelled under a Canadian passport issued on 19 June 1996 in the surname of "Shum" with Wong Shim shown as the given names.
7 Mr Kan said that he obtained tickets from the appellant's wife and on 19 March flew from Toronto to Vancouver. At Vancouver Mr Kan carried out the appellant's instructions to collect $10,000 from a person not identified. Of this amount Mr Kan paid $1,000 back into the appellant's wife's account. A day or so later Mr Kan flew to Hong Kong
(Page 6)
- and then travelled by the jet-foil to Macau. He was met by a lady named Belle who took him to the Chinese border where he met the appellant and Belle's husband. They stayed overnight at the Fu Hua Hotel. Mr Kan said that the appellant then told him that they were going to import the heroin into Australia as the prices in Canada were not as high as Australia. He said that the appellant told him that it was necessary to have an intermediate transit point in order to disguise the shipment. He also discussed with Mr Kan how Mr Kan was to be paid. He said that in Macau the appellant purchased a map of the world in Chinese and Cantonese to assist in choosing a transit point. A map consistent with this description was found in the appellant's possession when he was arrested.
8 Mr Kan said that the appellant and he travelled to Hong Kong to purchase tickets. Stamps in the appellant's passport show him departing Macau on 22 March and arriving in Hong Kong the same day. Mr Kan said that when they arrived in Hong Kong the appellant said that they would make Western Samoa the transit point for the consignment. They made inquiries of travel agents for a flight to Western Samoa and found that there were no flights that week. Mr Kan said that the appellant then decided that the transit point was to be Mauritius. He asked Mr Kan to find out as much as he could about Mauritius from travel agencies.
9 The map found in the appellant's possession had three places highlighted in yellow and marked with numbers. Number one is against Mauritius, number two against Honiara and number three against Vila. Mr Kan said that the appellant marked the map this way in the presence of Mr Kan. He said that it took place in their bedroom when they were standing between two beds. Mr Kan said that he did not remember what the appellant said about the other two places but he pointed out Mauritius to Mr Kan. Mr Kan said that he and the appellant then went to the travel agency, "Wing On Travel" and the appellant purchased two return tickets for a flight scheduled to leave Hong Kong on 29 March, these tickets being Hong Kong to Mauritius via Singapore with an open return. The travel envelope, itinerary and receipt were found in the appellant's possession on his arrest. Mr Kan said that on the same day he and the appellant travelled to Macau and stayed overnight at the Fu Hua Hotel and that on 29 March they travelled back from Macau to Hong Kong and then by plane from Hong Kong to Mauritius via Singapore. The entries in both the appellant's and Mr Kan's passports support this.
10 They arrived in Mauritius on 30 March and went initially to the Ebrahim Flats which was found not to be suitable for accommodation. They then obtained a room in the Cote D'Azure Hotel. At that hotel they
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- booked one room and later extended it until 29 April. The manager of the hotel gave evidence identifying the appellant, saying that they together booked the room and that the appellant was using the name "Tony". On 1 April the two went back to Ebrahim's Flats where Mr Kan said that on the appellant's instructions, he booked a small room for the period 3 - 10 April. They kept this as a second address for the purpose of this address being used to receive the heroin. Mr Kan said that he was asked by the appellant to send a fax to a number in China giving details of the Ebrahim Flats address. The fax machine to receive messages was at an adjoining pharmacy. Mr Kan said he sent this fax from the Cote D'Azure Hotel. The appellant told him that a fax would come from Bangkok giving details of the shipment.
11 The fax was received next day and was a facsimile of a shipping agent's copy of a waybill for three packages consigned to Mr Kan at Ebrahim Flats Mauritius. The shipping agent was the United Parcel Service which had an office in Klongthi, Bangkok. Mr Aumbamrung, the centre manager of that office gave evidence that at about 2 o'clock on 2 April a person came into his office in Bangkok with two parcels for despatch to Mauritius. The person presenting the parcels also presented a partially completed United Parcel Service waybill which described the sender as Charlie and a Bangkok travel agent was shown as his address. The consignee was shown as Mr Thomas Kan at Ebrahim Flats in Mauritius. The waybill, as presented, requested an express air service. There was a requirement that the maximum weight of packages travelling in this way was 31.5 kilograms and the two packages exceeded that. It was necessary for the United Parcel Service to repack the consignment so that it was in three parcels. The manager said that the parcel was repacked into three parcels in the presence of the person bringing it in. He said that it consisted of dolls and ashtrays. The manager said that the total weight was 87kg which was entered on the waybill. The figure in the photo copy of the waybill (exhibit) appears to be 81. The agency also put Mauritius on the way bill. There were three copies of the waybill and the sender was given his copy. The manager said that the normal shipping time between Bangkok and Mauritius by express air was three to five working days.
12 The manager was suspicious of the parcel and after the person bringing it in left, he called the Royal Thai Police. The police broke open the boxes and found that they contained pottery consisting of 37 dolls or statuettes and 67 ashtrays. The items had hollow compartments in which were found blocks of heroin in the form of compressed white powder wrapped in plastic. The heroin weighed 13.75 kg gross and was
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- calculated at 11.548 kg. The police also took possession of United Parcel's Service's copy of the waybill.
13 Mr Kan said that he and the appellant went back and forth to the pharmacy to see if the fax arrived. The day it arrived he went into the pharmacy to pick it up and it was a copy of the waybill. In particular he noticed the weight of the consignment. He showed the fax to the appellant who was waiting outside. The appellant told him to keep the fax of the waybill as he would need it to pick up the parcels. The appellant also told him that the parcels would arrive after four days or more.
14 Mr Kan said that he was then asked to make enquiries from courier services in Mauritius as to how much it would cost to send a parcel weighing approximately 80 kilograms to Australia. Mr Kan said that late on Wednesday, 2 April 1997, he and the appellant attended at the offices of the Federal Express. Mr Rissik, the manager of that office said in evidence that two Asians came into his office on or about 2 April. One did most of the talking. He said they were enquiring about sending a package by air weighing 80 kilograms from Mauritius to Australia. He was told that the contents were crockery for a restaurant business and he was asked in detail about the customs procedures in Australia. The appellant in his address to the jury indicated that he was with Mr Kan when they called on Mr Rissik, but the appellant stated that Mr Kan said he only intended to forward crockery bowls and dishes to Australia and the appellant had no idea that they were to contain anything else.
15 On 3 April the appellant attended at Rogers Travel in Mauritius and purchased a return ticket from Mauritius to Perth on 4 April 1997, returning to Mauritius on 18 May 1997. The ticket and a statement from Rogers Travel setting out the travel arrangements made was found in the appellant's possession on his arrest. Mr Kan said that the appellant told him that he was going ahead to Australia to book accommodation. Mr Kan said that the appellant told him to repack the heroin on its arrival and to send it to Australia in Mr Kan's name to an address that the appellant would send him. Mr Kan said that they together bought the items for repackaging. The appellant told Mr Kan to remove anything identifying the shipment as having come from Thailand and to use Mauritian newspaper for the repacking. The appellant told Mr Kan that as soon as he despatched it he, Mr Kan, was to travel to Australia so as to be available to collect it in Australia.
16 On 4 April the appellant travelled from Mauritius to Perth. The appellant, on his arrival, handed to the customs officers an incoming
(Page 9)
- passenger card in the name of Shum with the given names Wong Shim, these being the names on his passport. The card showed that he intended to stay in Australia for 21 days on holiday. The card said that his intended address was not known. He booked into the Brownlea Holiday Apartments North Perth under the name "Wayne Wong" which was his correct name. Between 5 and 12 April he remained in daily telephone contact with Mr Kan, but did not at that stage tell him his address in Perth.
17 There is evidence to show that the appellant booked into room 5 and the Brownlea Holiday Apartments card was found in his possession with his room number on it. There was also found in his possession other business cards with telephone numbers on them. Telephone records show that at 1.30 pm on 7 April he rang a number in Macau from a public telephone box and later that day a number in China. Mr Kan said that on the same date the appellant rang him asking him about the arrival of the shipment. The telephone records verify that a call was made from a telephone box to Mr Kan's number. Mr Kan said that there were further calls when he was pressing for information about the shipment. On 9 April Mr Kan said that he told the appellant he was concerned about the shipment and that something was not right. Mr Kan said that the appellant told him that the parcel had been sent "last Thursday and to wait".
18 In the meantime, on 10 April, Mr Kan was taken into custody by the Mauritian police. He was waiting outside the Ebrahim Flats for the parcel when approached by the police. He was told the parcel had been intercepted, he was later arrested and agreed to co-operate with the police. He told them that he was expecting a phone call from the appellant so he was taken from the police station back to his room at the hotel where he stayed the night under police guard. While in his room he received a phone call from the appellant. Chief Inspector Padiachy, a Mauritian police officer attached to the Anti-Drug and Smuggling Unit, was present when this phone call was made. The inspector could not testify as to what was said as Mr Kan was speaking in Cantonese. Mr Kan said that he endeavoured to find out the appellant's address in Perth, but the appellant said he would not give it until the next day.
19 Mr Kan said that on Friday, 11 April, the appellant again phoned him at the Cote D'Azure Hotel. The records of the public telephone box in Palmerston Street, North Perth show that two calls were made to the number at the Cote D'Azure Hotel (230 263 8320). One was at 4.28pm and the other was at 4.58pm. Inspector Padiachy was present in the room at the hotel and confirmed that the calls had been received at 12.28 and
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- 12.58. Perth time is four hours ahead of Mauritian time. Mr Kan, on instructions from the Mauritius Police, said the parcel had arrived and he carried out the instructions of the Mauritius Police by giving the appellant a description of the contents.
20 Mr Kan said that at 7.30 am on 12 April (Mauritian time), the appellant again called him and told him to book his, Mr Kan's airline ticket to Perth for Tuesday, 15 April and that the appellant would send Mr Kan a fax with the address the parcel was to be sent on it. The appellant said he would phone back ten minutes or so after he sent the fax. This call was at 11.30am Perth time. The Crown case was that, 18 minutes later, at 11.48am the appellant sent a fax from the Sicari Stationery Centre, Northbridge. It was sent to the fax number of the Cote D'Azure Hotel and marked attention Tom Kan. All it contained was an address for the Brownlea Holiday Apartments, its fax number and telephone number. It also contained the words "Doc N".
21 Mr Kan said that about half an hour later the appellant phoned back asking if he had received the fax. Mr Kan had not then picked it up as he was under guard. The appellant told him to go down to reception to obtain the fax and to come back to the phone as there was some adjustments on the fax. Mr Kan then obtained the fax. Mr Kan said that he then had a further conversation with the appellant and Mr Kan said, "He told me to change the numbers and add names to the fax. It's all coded, in other words." Mr Kan said that he made these changes while the police were present. The conversation was in Cantonese. The fax showed an incorrect number of 766 for the street number and Mr Kan was told to change it to 166. He was told to add the post code, 6000, and to make an alteration to the fax number. A difference of one had been subtracted from the telephone number and the fax number and this was adjusted in this phone conversation
22 After the appellant sent the fax he left the Brownlea Holiday Apartments abruptly, although he had booked the rooms for some days thereafter. He attempted to book in at a hotel in Scarborough at 2.00 am. Actually he booked into that hotel at about 6.00 am on 13 April. Although he was holding a return ticket to Mauritius, he decided to travel to Singapore and made arrangements the following day to travel to Hong Kong via Singapore. He also purchased another ticket to Singapore and when he went to the airport on 15 April to board the Singapore plane he was arrested.
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23 Mr Kan was brought to Australia. He was charged with a conspiracy and pleaded guilty.
Corroborative evidence
24 The first area of corroboration to which I shall refer is the evidence to support the fact that it was the appellant who was making the calls from Perth to Mr Kan at the Cote D'Azure Hotel in Mauritius. The Crown claim that calls were made from a public telephone box in Palmerston Street, North Perth. The records from that box showed that calls were made to the Cote D'Azure Hotel number and the time the calls were made. The box is near the Brownlea Apartments. There was evidence to indicate that the appellant was using that box as there was a record of a call to China at 11.29 pm on 7 April 1997 and the number called as recorded in the records of the telephone box corresponded to a number written on the back of a card found in the appellant's possession. This would not of itself exclude the possibility that there may be another person in Perth calling the same number from that box. There are, however, other factors to make it mathematically unlikely that there would be another person other than the appellant phoning the numbers from that box. Earlier that day there was a call to Macau. The records relating to the box show the extent to which the number of the Cote D'Azure Hotel was rung. It would be unlikely that there would be another person in Perth making the pattern of calls recorded in the box. The matter goes further as overseas calls to guests in the Cote D'Azure Hotel must go through the reception office of the hotel. Both the manager and the receptionist of that hotel gave evidence of recognising the appellant's voice when critical calls were put through to Mr Kan.
25 The manager, Mr Dhonye gave evidence of extensive dealings he had with the appellant negotiating a price and extending his stay. The name the appellant gave was Mr Tony. Mr Dhonye said after 4 April Mr Tony left the hotel leaving Mr Kan in room 237. He remembered the 10 April when Mr Kan returned back with police officers and went into room 237. He said next day on 11 April the appellant rang and wanted to speak to Mr Kan. Mr Kan was not at the hotel at that time. Mr Dhonye asked the appellant if he could give him an address or phone number where Mr Kan could call back later and the appellant replied he could not. The appellant said he would phone later on. Mr Dhonye said that when he received this call, he contacted Inspector Padiachy who had requested Mr Dhonye to inform him when he received such a call. Later that day the Inspector, police officers, and Mr Kan returned to the room.
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- Mr Dhonye said later that day, Mr Tony phoned back. He again asked to speak to Mr Kan and Mr Dhonye put the call through.
26 The receptionist, Mr Fokeerbox, also had a number of conversations with the appellant in connection with the hotel's business. He recalls being on duty on 12 April. He said a call came through for Mr Kan and he said in respect of the caller, "Well the voice seems like Mr Tony's voice." He put the call to room 237 and he said the fax came through for room 237. He said just after the fax came there was a second phone call. He said, "It was the same voice, Mr Tony." He again said he wanted room 237.
27 The evidence to support Mr Kan's evidence that it was the appellant who sent the fax is that there was found in the appellant's possession on his arrest, a document in original writing that was almost in identical form to the fax that was sent. It was in very similar writing and contained the same words with the exception that the number for Palmerston Street was shown as 166 and not 766, and it showed the telephone numbers as phoned to Mr Kan. A further difference was that the telephone number was shown before the fax number. The jury were given warnings about comparing handwriting, but were asked to compare the similarity of the writing with that of the fax and the paper found and the fax and other documents the appellant wrote.
28 The general areas that the Crown claim corroborated Mr Kan's evidence were firstly, the extent to which the appellant used false names. The passport was in a false name. In addition the Crown referred to the use of the name "Mr Tony" in Mauritius and to the fact that although the appellant entered Australia under the name of Shum and gave that name to the customs and immigration officials, he used a different name when checking into the Brownlea Holiday Apartments. Although this different name was his correct name, it meant that the immigration authorities would not be able to ascertain his whereabouts if they checked hotel registers. In addition at the Brownlea Apartments, he gave his usual address as Hong Kong instead of Canada.
29 The next area of circumstantial evidence are the circumstances surrounding the fact that the appellant's journey from Hong Kong to Australia corresponded closely to the intended journey of the heroin. The appellant was in Bangkok shortly before the heroin was received by the United Parcels Service. He arrived in Mauritius shortly before its intended receipt. Once the way bill had been received in Mauritius he left a day or two before it was due to arrive and travelled to Perth, the
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- intended destination of the heroin. He left the address abruptly after forwarding the fax advising the address where he was staying. He then did not use his return ticket, but obtained another ticket to Singapore and was en route there when arrested. The next circumstance is the fact that the fax sent appeared to be coded with a difference of 1 between the written telephone numbers and fax numbers.
30 Other matters referred to were that on his arrest there was found in his possession the map in Chinese and English with the yellow markings referred to by Mr Kan. There was also found in his possession some pink paper with names of parcel delivery services and the words "Western Samoa/Apia" written on it.
Appellant's Case
31 The appellant did not give evidence, but addressed the jury. It was submitted that Mr Kan was telling lies and was a person who ought not to be believed by reason of his criminal record and thoroughly bad character. He referred extensively and competently to the extent Mr Kan was likely to benefit from giving the evidence he did. This included the claim that much better prisoner accommodation was available in Australia and Mr Kan admitted in cross-examination that he preferred to be gaoled in Australia. He also referred to the discount in sentence. He claimed that the fax was a forgery.
Corroboration - Direction of Trial Judge
32 I shall set out the relevant parts of the direction on corroboration given by her Honour. I shall number the paragraphs for the purpose of making reference to them later. They are not numbered in the transcript. Her Honour in referring to Mr Kan's plea of guilty said: (AB1172)
"(1) Secondly, though, his plea does make him an accomplice in the offence that he says was committed, and accomplices have often a number of motives not to be truthful. It is the long experience of the courts, in cases where a number of accomplices, for example, are tried together, that each of them will say of the others, 'It was his idea.'
(2) So juries are generally told that it is not desirable to convict on the evidence of an accomplice without looking at it very carefully, without looking for other material
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- [sic] may support it, and let's look at why that might be the case in this case. You will need, in approaching Mr Kan's evidence, to consider his position in the Mauritian gaol. It was suggested to you that he may wish to have something of value to offer the Australian authorities so that they would bring him here. That is one motivation. He was, on his own evidence, not very happy in the Mauritian gaol.
- (3) He may, as accomplices generally may, wish to minimise his role, naturally expecting that the higher you are in the chain of distribution, the heavier your sentence is likely to be. It appears that he was legally represented both in Mauritius and in Australia and any competent Australian lawyer will tell you, and indeed it is a matter of commonsense, that you get a sentencing discount not only for pleading guilty, you also get one for dobbing in people who are higher in the chain of distribution than yourself.
(4) All of these would be reasons to concoct a story about someone recruiting him. Once he has implicated someone else, again you can see how someone in Mr Kan's position might feel locked in to a particular story which he had at some time given. In particular, if he has received a sentence discount for a promise to co-operate, he might be concerned that a sudden change of story might perhaps be perceived as uncooperative.
(5) All of these are factors that you need to consider; examples of the obvious self-interest of an accomplice. Also in relation to Mr Kan you have the evidence, largely on his own admission, that he is not otherwise a person of terribly good character. You have heard of his drug-dealing activities and his credit card related activities. He is not a person you take home to meet your mother, you might think. He is obviously not a person of generally good character.
(6) So for all those reasons you need to look at his evidence very carefully and you should look for evidence independent of Mr Kan's evidence which confirms or strengthens it in the sense of making it more probable.
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- Evidence that has this effect is called corroboration. You don't have to remember the technical name, I just mention it to emphasise that this type of evidence has long been considered to be so questionable that we even have special terms developed in relation to it.
- (7) When looking for evidence that strengthens or supports Mr Kan's evidence, of course you're not looking for evidence that just suggests that Mr Wong was in Mauritius or was with Mr Kan at some time. You are looking for evidence that suggests that he did what he did as part of an agreement to import heroin, so this independent supportive evidence must be evidence which implicates Mr Wong in the offence.
(8) The crown points to a number of circumstances as supporting Mr Kan's evidence. It is for you to decide whether they in fact occurred, whether these facts upon which the crown relies are facts at all, and it is for you to decide whether they do support or confirm Mr Kan's evidence so far as it implicates Mr Wong.
(9) I am going to go briefly through the list of things which the crown refers to to provide such support to remind you of them and I will make certain comments in relation to them and in relation to the way you may approach them. The first category of supportive evidence which is referred to is the use of false names by the accused; that is, the use of a passport in the false name, the use of that name for international travel and to receive money, that is the name of Shum; the use of the name Tony in Mauritius if you accept the evidence of Mr Fokeerbox and Mr Dhonye; not quite a false name but using the name Wayne Wong, reverting to a different name apparently when checking into the Brownlea serviced apartments, and in connection with that giving the usual address apparently as Hong Kong at the Brownlea serviced apartments.
(10) I'm going to come back to this point in a minute but it is important to consider here whether you can see any innocent, any alternative explanation for those events and if you can see a reasonable possibility of an innocent
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- explanation, then obviously this doesn't support Mr Kan's evidence at all, but it is put to you that all these factors may suggest - and whether they do, it is up to you - a consciousness of some unlawfulness in what he is doing and a desire to distance himself from it. They don't of course necessarily point to heroin as the unlawfulness or to an importation, but merely to some not quite legitimate purpose.
- (11) In relation to those matters let me mention, in case it should distract you, that of course Mr Wong is not on trial for any offence in relation to a passport or using a false name or anything of that kind. It is only put forward that he did this, not to prove that he is a terrible person or that he has committed some other sort of offence - for all I know he has or he has not; it's irrelevant. It is only put forward as suggesting this sort of consciousness, this sort of - for this sort of conclusion that you may be able to draw.
33 She referred in detail to the evidence on which the jury could find corroboration.
34 Ground 2A, which I shall deal with first, claims that her Honour erred in law alternatively in the exercise of her discretion by failing to give a full corroboration warning pursuant to s 50(1) of the Evidence Act 1901 (WA).
35 Section 50 of the Evidence Act reads:
"(1) In this section }corroboration warning~ in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence ¾
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
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- (b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
36 The judge is accordingly precluded from giving the direction unless he or she is satisfied that the warning is justified in the circumstances. Murray J said in Chew v The Queen (1991) 4 WAR 21 at 82 the ground should be framed to show why the discretion given by the last paragraph miscarried. The ground in this case is so worded.
37 Her Honour gave a lengthy warning in the terms I have set out. She said that it was "not desirable to convict" for reasons she stated. Having given in strong terms all the reasons why the evidence might be false or fabricated she said "for all those reasons you need to look at his evidence very carefully". She did not go so far as to say it was "unsafe to convict" or "dangerous to convict". After she summarised the appellant's reasons as to why Mr Kan's evidence should not be accepted she said (AB1201) "…for reasons I have explained to you yesterday, take a long hard look at Mr Kan's evidence and you will be cautious before you accept it". The essence of the ground is that she should have used the words "dangerous to convict", firstly by reason of the fact that the principal witness was an accomplice and secondly, by reason of the fact of his bad character and significant criminal record.
38 It is apparent that her Honour did not exercise her discretion to go as far as saying that it was unsafe to convict because it was apparent that she considered the warning she in fact gave was sufficient in the circumstances. This was not a case of the jury being asked to convict the appellant on the uncorroborated testimony of an accomplice. There was much corroborative evidence. In particular, there was before the jury a chain of circumstances on which they could properly come to the view that implicated the appellant. The corroboration need not be direct evidence that the appellant committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. (R v Baskerville [1916] 2 KB 658 at 667 quoted by Street J in R v Galluzzo (1986) 23 A Crim R 211 .at 214, 215; cf R v Tripodi [1961] VR 186 at 190.)
39 The corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In my view the circumstantial evidence to which I have referred does tend to connect the appellant with the enterprise being carried out by Mr Kan. It would be open to the jury to say it had the tendency to show that the
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- appellant had come to Australia to assist in the delivery of the heroin Mr Kan said he was to despatch, and accordingly, it tended to show they had reached an agreement to import the heroin into Australia. With evidence of this type on the record, I consider it was open to her Honour to direct in the terms she did.
40 I consider, having regard to the fact that her Honour spelt out all the reasons as to why Mr Kan's evidence could be false, that her Honour's direction fell very little short of saying it would be dangerous or unsafe to convict on the evidence if it were not corroborated. The state of the evidence was such that I consider it was open for her Honour to direct in the terms she did and as she did direct in these terms it was a correct exercise in discretion in not using the term "unsafe" or "dangerous".
41 Ground 2 claims that there were three instances where her Honour misdirected the jury on the law as it relates to corroboration. These are: (AB5)
"2.1 The Learned Trial Judge misdirected the jury by directing them that evidence of a 'consciousness of some unlawfulness' could be used to corroborate the evidence of the co-accused, Mr Thomas Kan;
2.2 The Learned Trial Judge misdirected the jury by directing them that evidence of a desire on the part of the appellant to distance himself from some unlawfulness could be used to corroborate the evidence of the co-accused Mr Thomas Kan.
2.4 The Learned Trial Judge misdirected the jury by directing them that evidence which pointed to 'some not quite legitimate purpose' could be used to corroborate the evidence of the co-accused Mr Thomas Kan."
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- may be considered. She had told the jury that they were "looking for evidence that suggests that he did what he did as part of an agreement to import heroin." (para 7). She told them that the evidence must implicate the appellant. The paragraph in question commenced by her Honour telling the jury that she would be coming back to the question of alternative and innocent explanations later. After going through the circumstantial evidence she gave a detailed direction as to how the jury could draw an adverse inference and that such an inference could not be drawn if there were an alternative explanation. Her Honour in paragraph 10 was instructing the jury when the jury may and may not use the evidence for the purpose she had already outlined.
43 I consider the phrase "not quite legitimate purpose" used in paragraph 10, in the whole context of the summing up would be interpreted by the jury as meaning an illegal purpose. I would, in any event see a likelihood that her Honour would have used this expression with an inflexion of voice and emphasis on the word "quite'' that would have made it perfectly clear that she was referring to a highly illegitimate purpose. It would also be clear to the jury that her Honour from time to time was emphasising points by obvious understatement. The phrase "desire to distance himself from it" used in that paragraph referred to an important aspect of the Crown case. The appellant, on the Crown case, was placing himself in the position where he could direct the operation but where he would not be connected with it if it were discovered. As much as possible was being done in Mr Kan's name.
44 Mr Levy, in his oral submissions, claimed that in the passage in this paragraph her Honour left it open for the jury to find evidence that was not directly on point, that is, that it didn't necessarily implicate the appellant directly with the offence and prove that he had committed the offence. He submitted that this was reinforced by what was said in the paragraph which followed (para 11) where her Honour said that the evidence of the appellant using a passport in a false name is only put forward as suggesting the sort of conclusion the jury may be able to draw. I consider for reasons I have already set out that her Honour in her earlier directions made it very clear that the evidence for which the jury was looking was evidence to implicate the appellant. The two passages in question were doing no more than instructing the jury when it could not use the evidence against the appellant. The first was if the jury saw a possibility of an innocent or alternative explanation and the second was that the evidence relating to the false name was not put forward to prove bad character or that the appellant had committed some other offence. It
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- was put forward as to the conclusions the jury may draw in the way her Honour had instructed them.
45 Ground 1 claims that the verdict of the jury was unsafe and unsatisfactory. This is not a case of there being little or no evidence to infer an agreement. There was direct evidence by one of the parties to the agreement that the appellant was the other party. The nature of the submission is that the person giving this evidence was a demonstrably unreliable witness and it would be unsafe for a verdict to act on it.
46 The credibility of the witness is essentially a jury question. It is likely that a principal to a large importation would engage an experienced drug runner as an assistant. It would not be open to say that there could never be a conviction based on that evidence. All the factors to show that the witness might be an untruthful man were before the jury for the jury's assessment. I consider having regard to this and also having regard to the extent of the evidence in corroboration and the direction on corroboration that the verdict is safe.
Accused Being Unrepresented
47 Ground 3 claims that there was a miscarriage of justice by reason of the appellant not having legal representation and conducting his own defence. The circumstances in which the appellant became unrepresented were that at the preliminary hearing in December 1997, the appellant was represented by Mr Levy of the firm Messrs Pryles and Deftoros. At a status conference on 20 April 1998, the matter was listed for trial by the jury for a period of three weeks commencing 10 August 1998 with a directions hearing to determine preliminary matters to be held on 15 June 1998.
48 The directions hearing was held on that date with the appellant again being represented by Mr Levy. One of the matters considered at this hearing was which witnesses from Mauritius were required to be present for cross-examination and which witnesses could have their deposition read under the provisions of the Evidence Act. Mr Levy indicated that the defence would be prejudiced if it were not able to cross-examine Inspector Padiachy and Mr Fokeerbox. This was by reason of the importance of the telephone conversations and was a proper submission to make. It resulted in the Crown making arrangements for these witnesses to attend. At the commencement of the trial there were present, on behalf of the Crown, six
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- witnesses from Thailand, one from Mauritius and arrangements had been made for three other witnesses from Mauritius to attend later in the trial. Two other witnesses would come from the Eastern States. Mr Bonomelli, an experienced counsel of many years standing, had been instructed to appear on behalf of the appellant.
49 The trial was due to commence at 10.00 am on 10 August, but it commenced some ten minutes late, no doubt by reason of the factors to which I shall shortly refer. Immediately after the court opened, Mr Bonomelli told her Honour that he had been instructed to act on behalf of the accused, but then said to her Honour, "but my circumstances now are that a few moments ago my instructions were withdrawn and under those circumstances I would seek your Honour's leave to pack my goods and go." Her Honour said that she wished to confirm the position with the accused and said that she wished the indictment put to him first and she would then check the representation. Before the indictment was put, she asked the interpreter to check with the appellant what the position was with his lawyer. The appellant replied, "Now I am not using his service." Her Honour gave Mr Bonomelli permission to withdraw.
50 Her Honour ascertained that the appellant could speak and understand English, but it was not his first language and an interpreter was accordingly present. Her Honour explained the procedure to the appellant and steps were put in hand for him to contact his solicitor. While the jury were being empanelled, the solicitor, Mr Levy, appeared in court. He told her Honour that he had just received the voice message as to what had happened and he said to her Honour that he was trying to confirm with the appellant that he in fact understands the ramifications of proceeding unrepresented and that it is in fact his choice to do so. The solicitor was then given an opportunity to speak to the accused and he then informed the Judge that the appellant did understand the ramifications. Mr Levy said that the appellant's request for a Queen's Counsel was not followed up, or alternatively, was not allowed under the grant of legal aid and Mr Levy said in effect that the appellant's view was that if he did not have representation of the standard of a Queen's Counsel, he might as well do it himself. The trial then proceeded with her Honour explaining carefully the position to the jury.
51 The ground of appeal claims that her Honour failed to make any adequate enquiry into the circumstances of the appellant being unrepresented. It is claimed that the unfairness of the trial comes from not being represented by a Queen's Counsel and the grounds in effect say that a competent junior counsel would not be sufficient. The submission in
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- support is that although the appellant brought the situation upon himself, the question to determine is whether the lack of legal representation caused a miscarriage of justice. The submission refers to the remarks of Gleeson CJ in R v Frawley (1993) 69 A Crim R 208 at 212 where his Honour said that the court must consider whether there was a miscarriage of justice, but it does so in a context in which the fact that the appellant was unrepresented was the result of his own conduct. The submission is that the appellant's conduct, although it is relevant, is not necessarily fatal to the appeal. Reference was also made to R v Small (1994) 72 A Crim R 462 where it was said that even where the accused himself is at fault for the absence of legal representation, the trial Judge should exercise discretion having regard to the principle of justice that an accused should be represented and to the interests of justice to all the parties involved in the trial process. The submission says that the appellant specifically dismissed his counsel because their views differed on the way the defence should be structured. It is submitted that although counsel have a strong influence on deciding the structure of a defence, ultimately it is up to the defendant himself to decide on what basis he wishes to defend the charges alleged against him. The appellant in his oral submission also referred to the fact that there was a disagreement as to the way the witnesses were to be cross-examined. His counsel told him that it was not done that way in Australia.
52 The reasons contained in the submissions for dismissing counsel was not the reason given to the trial Judge. There was at the trial a 15 minute adjournment and during that time the appellant's solicitor consulted with the appellant and there was a further consultation in court. The solicitor told her Honour that the appellant took the view that unless he could have a Queen's Counsel representing him, he may as well do it himself. It was on that basis her Honour was required to judge the situation. In any event, the reason advanced in the submissions would be an inadequate reason as counsel would be required to carry out the appellant's instructions so long as they were not inconsistent with the law. The ground of appeal, itself refers to the failure to provide a Queen's Counsel It reads that her Honour erred in law by failing to make appropriate enquiries of the appellant and allowing a trial to proceed, where it was obvious that the appellant would be quite seriously disadvantaged by the absence of a competent legal counsel (QC) to assist in his defence. Consequently, the trial must be unfair and the resulting conviction a substantial miscarriage of justice. The first particular claims that her Honour failed to make any adequate enquiry into the circumstances of the appellant being unrepresented. This particular must fail. The appellant's solicitor of long-standing obtained
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- instructions from him and told her Honour the position. There are other particulars that suggest a person who is not a Queen's Counsel is not a competent counsel to conduct the defence in this case. One of the particulars say that the need for competent counsel is confirmed by the Crown case being presented by a Queen's Counsel assisted by three junior counsel. The record shows that the Crown was represented by a Queen's Counsel and one junior counsel. There would no doubt be a clerk and a solicitor assisting which may have given the impression to the appellant that there were three junior counsel.
53 Although the appellant had been conferring with his solicitor Her Honour was not asked to adjourn or stop the trial. The ground claims that her Honour erred in allowing the trial to proceed. It is my view that it would not have been proper to adjourn a trial in these circumstances so that it would have been pointless to make such an inquiry of the appellant. In R v Greer (1992) 62 A Crim R 442, Kirby P (as he then was) at 448 referred to the fact that Judges, if requested to grant an adjournment in these circumstances, are entitled to take into account considerations such as proper case management. His Honour said that in criminal proceedings there is an interest at stake in addition to that of the accused. It is in the interests of the community and the prompt disposal of charges of criminal offences - particularly where the accused is in custody and especially where the offence is a serious one. That comes very much to the fore in the present case. Experience in the past has shown that a frequent granting of adjournments of criminal trials has been a factor to explain long delays in criminal lists. An adjournment of a three week trial on the day of the trial would cause at least a three week subsequent delay in the lists and if this occurred on only a few occasions, the delay would soon build up. A factor in weighing up the interests of the community is the high cost an adjournment would involve and the difficulty with witnesses which had come from a foreign jurisdiction. Part of the cost would be overseas witnesses brought at the appellant's request. This was not the situation referred to in Dietrich v The Queen (1992) 177 CLR 292 where an indigent accused charged with a serious offence, who is through no fault of his own, unable to obtain legal representation, is required to stand trial. Under the listing procedures of the Court this matter would not have been listed for trial unless it were clear that the accused was properly represented. He had received legal aid and a competent, experienced counsel of long-standing was to appear for him. The counsel would have been entitled to a brief fee so some of the aid granted would have been wasted. The fault of the accused referred to in Small appeared to be
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- neglect in originally engaging counsel and it was not a case of terminating assigned counsel at the commencement of the trial.
54 The next factor is that the stated purpose, both to her Honour and in the ground of appeal, that it was necessary for the appellant to have a Queen's Counsel is a purpose without merit. Any application, at any time, to stay this trial on the basis that a Queen's Counsel must be funded would inevitably fail. The Crown is in a different position. It is required to have evidence before the jury to prove every element of the offence. Most of the allocated time for the trial was time for Crown witnesses. The circumstances in which Crown engage Queen's Counsel are different from those of an accused person.
55 Gleeson CJ set out the following test in R v Frawley:
"The entire record of the trial proceedings must be scrutinised with particular care to see that no miscarriage of justice has occurred. On the other hand, the circumstances of the case are materially different from those in Dietrich and are closer to those in Greer. The fact that the appellant was unrepresented, resulting, as it did, substantially from his own rejection of the legal advice and representation that was provided to him at public expense, does not of itself amount to unfairness: cf Dietrich (at 335-336; 206-207). The Court must consider whether there was a miscarriage of justice, but it does so in a context in which the fact that the appellant was unrepresented was the result of his own conduct."
56 I consider it follows that it would not be open to contend that there might have been a better chance of acquittal if there had been senior counsel. That is excluded by the fact that the matter is considered in the context that the appellant was unrepresented as a result of his own conduct. Gleeson CJ had earlier referred to an obligation on the trial Judge to render assistance during the trial. A perusal of the record of the trial shows that her Honour was meticulous in respect of this. A perusal of the record also shows that the appellant in cross-examination and in his address brought home to the jury Mr Kan's adverse factors for the jury to take into account in assessing his credibility. I am satisfied, in the context mentioned, that there was no miscarriage of justice.
57 It would not have been a proper exercise of discretion for her Honour to adjourn the trial. Apart from the enormous public expense and the future delay likely to be caused to the lists, an adjournment would not
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- have resulted in the appellant being represented. As much of the legal aid assigned was wasted, it would be unlikely that he would again receive legal aid. In my judgment the Court ought not, and no Court would, stay the matter until Queen's Counsel is assigned.
58 An accused person does have the right to represent himself or herself if that is the wish of the accused person. If at the commencement of, or during the course of the trial an accused person wishes to dispense with counsel, it would be a proper precaution to inform the accused person that the trial must proceed and if the accused still wished to dismiss his counsel, the consequences would be that he would be required to represent himself. I do not consider that course was necessary in the present case by reason of the solicitor who had been representing him up to date being present and talking to him. Mr Levy continued to represent him in making submissions on sentence and in this appeal.
Jurisdiction to try conspiracy when agreement made overseas
59 Ground 4 claims that the learned trial Judge erred in law in requiring an Australian jury to make a finding of fact which is claimed to have occurred outside the jurisdiction, and, in particular, in another foreign jurisdiction, when the concerned authorities of that particular foreign jurisdiction did not find it necessary to make such a finding under their respective statutory provisions. The particulars refer to the fact that the appellant was not charged with conspiracy in the other countries. The particulars also claim that the Crown failed to demonstrate evidence of the appellant's involvement in any illegal activity during his stay in Perth. The particulars also refer to the appellant being brought to Australia when there were proceedings against him in Mauritius. The respondent submits that the operation of s 233B(1)(cb) of the Customs Act 1901 is not limited to conspiracies entered into inside Australia.
60 It is clear from the evidence that the agreement alleged was reached when the parties were outside Australia and prior to the appellant coming into Australia. The Crown case was that his purpose of coming into Australia was to put the agreement into effect. This Court must be satisfied in these circumstances that the Australian court had jurisdiction. I am satisfied it did and it was so held by the Court of Criminal Appeal in New South Wales in R v Fan (1991) 56 A Crim R 189. It was there held that there was no basis for limiting the operation of s 233B(1)(cb) to conspiracies entered into inside Australia. The court followed what was said by the Privy Council in DPP v Doot [1973] AC 807 and Liangsiriprasert v United States Government [1991] 1 AC 225.
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- Gleeson CJ at 193 set out a passage from Liangsiriprasert v United States Government where it was said that the Board could find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. It was said accordingly that a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong, even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong. Gleeson CJ said that it appeared to him that it would be wrong to attribute to Parliament an intention that the offences created by the relevant provisions of the Customs Act should be limited to offences committed inside Australia and, in particular, the conspiracies of the kind referred to should be limited to conspiracies entered into in Australia.
61 I am satisfied for these reasons the court had jurisdiction. This would be a complete answer to the ground. I would, however, make a passing reference to two of the particulars which claim that the fax giving the Brownlea Apartments address is fabricated and that when its authenticity was challenged by the appellant the Crown failed to prove the contrary. This challenge was raised by the appellant in his final address. The evidence of Mr Kan and Mr Fokeerbox showed this fax was sent to the hotel in Mauritius and was later seized by the police there and brought to Australia.
Alleged adverse publicity
62 Ground 5 claims that the verdict of the jury was unsafe and unsatisfactory, as the learned trial Judge failed to give the jury adequate warnings as to the need to disregard adverse media publicity related to the appellant and published prior to the trial.
63 The appellant tendered some material (exhibit A), including an article which appeared in the Sunday Times of 22 June 1997, some 13 to 14 months earlier. Her Honour made it clear that the evidence for the jury to consider was what the witnesses said in the witness box and the exhibits that were produced. She said that what is said by people outside the courtroom is not evidence. There is nothing put before this Court to indicate her Honour should have gone further and I do not consider that the material in exhibit A supports the ground of appeal.
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64 The sentence imposed, as I have mentioned, was a sentence of 24 years imprisonment with a non-parole period of 14 years. The appellant is seeking leave to appeal on the sole ground that the sentence is manifestly excessive. The appellant is 37 years old. He was born in China and moved with his family to Canada when he was three years old. In 1982 he received a suspended sentence of 2 years in Montreal for theft and in 1997 he was convicted in Western Australia of possessing cannabis resin for which he was fined $200. There is a warrant for his arrest in Canada for alleged cocaine offences, but no convictions in respect of this.
65 The jury brought in their verdict on 31 August and sentencing was adjourned until 20 October 1998 when legal aid was granted for submissions on sentencing. Her Honour sentenced the appellant on the basis that he planned to bring into Australia 11.54 grams of pure heroin concealed in ash trays and statuettes. Her Honour referred to the fact that it was a feature of the enterprise that Mr Kan's name was used in almost all traceable transactions and that the appellant had at critical points distanced himself from the heroin. He was at Bangkok when it was delivered. He left Mauritius before it was due to arrive and he left Perth before it was due to arrive. Her Honour saw that he carefully planned the enterprise so as to minimise the risk of detection as far as he was concerned. Mr Kan had earlier been sentenced by Anderson J who considered that an appropriate starting point was 24 years imprisonment, but in his case, because of his co-operation in other mitigating factors, reduced it to a head sentence of 15 years with a minimum term of 9 years. Wheeler J considered it appropriate to use the same starting point.
66 The legislature has provided that for importations in excess of 1.5 kilograms the appropriate term is one of life imprisonment. The actual importation in this case was 15 kilograms of almost pure heroin, so that it came down to the 11.54 kilograms of pure heroin. The quantity and the fact that it was heroin called for a sentence in the upper range and a sentence to give effect to the intention of the legislature in imposing a term of life imprisonment for offences of this type. There was no mitigation on the appellant's part whatever. I consider that a lesser sentence for a proposed importation as high as this one would be a sentence overlooking the fact that the legislature has specified a maximum sentence of life imprisonment. Nothing has been put forward to show that her Honour's discretion miscarried.
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67 I would dismiss the appeal against conviction and I would refuse leave to appeal against sentence.
68 MURRAY J: In this case I have had the advantage of reading in draft the reasons for decision published by Pidgeon J. I respectfully agree with his Honour that the appeal against conviction should be dismissed and leave to appeal against the sentence should be refused.
69 There is nothing of substance that I would wish to add to his Honour's reasons, and I would offer only one comment on the ground argued by counsel in relation to the appeal against conviction that the learned trial Judge erred in failing to give what is described as "a full corroboration warning" pursuant to the Evidence Act 1906(WA), s 50.
70 The notion of a "full corroboration warning" no doubt comes from the reasons of McHugh J in Longman v The Queen (1989) 168 CLR 79 at 107 - 8 where his Honour cited the observation of Gibbs CJ in Bromley v The Queen (1986) 161 CLR 315 at 319 that:
"What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence."
71 In my opinion, all that Judges who have spoken in such terms mean to convey is that where the case is one where the evidence of a particular witness may be unreliable, and particularly where the source or nature of that unreliability may not be readily apparent to the jury, the interests of justice will require the trial Judge to give a warning about the danger of convicting upon the evidence of such a witness, and from what causes in the particular case the danger may arise. No particular form of words is required. The warning should be couched in such terms as to make it clear to the jury what the danger is and how it arises. The jury should be told that they may convict in reliance upon the testimony of the witness provided that before they do so, they subject the witness and his or her evidence to careful scrutiny to satisfy themselves that the witness is to the best of his or her ability giving truthful evidence which is, in addition, an accurate and reliable account in respect of essential matters. See also,
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- most recently, the decision of the High Court in Crampton v The Queen (2000) 75 ALJR 133.
72 Section 50 of the Evidence Act really does no more in relation to such a case than to make it clear that there are now in law no categories of witness which should be considered to attract the need for such a warning without considering the particular circumstances of the case. But in this case the principal Crown witness was an accomplice centrally involved in the conspiracy charged. The Crown did not contest that there was a need for a judicial warning about the danger of convicting on his evidence. Her Honour's direction made it abundantly clear how that danger arose in the particular case and why the witness's evidence should be subjected to careful scrutiny. She naturally went on to deal in detail with the fact that there was ample other evidence which was capable of corroborating that given by the accomplice in a manner tending to implicate the appellant in the conspiracy charged. For obvious reasons it has always been regarded by the law as a powerful factor which may support the credibility of a witness that there is other evidence independent of that of the witness which shows the evidence to be a truthful and accurate account. In my respectful opinion the terms in which the trial Judge couched her direction in this regard were entirely appropriate to the circumstances of the case.
73 Beyond those brief remarks I have nothing to add to the reasons of Pidgeon J.
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