Wu v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0242

LI QING WU	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2025
DATE OF JUDGMENT:	13 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 4
JUDGMENT APPEALED FROM:	DPP v Wu (County Court of Victoria, Judge Wischusen, 17 August 2023)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of trafficking in commercial quantity of methylamphetamine (Charge 1) and trafficking in commercial quantity of heroin (Charge 2) – Applicant found in possession of commercial quantity of pure heroin – No evidence of applicant’s belief that quantity of pure heroin exceeded commercial quantity – Whether open to jury to convict applicant on Charge 2 – Appeal allowed.

Drugs, Poisons and Controlled Substances Act 1981, referred to.

M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 268 CLR 123; R v Baden-Clay (2016) 258 CLR 308; DPP Ref No 1 of 2004; R v Nguyen (2005) 12 VR 299, considered.

APPEAL – Conviction – Jury directions – Prosecution granted leave to cross-examine applicant that she had lied in her evidence because she was conscious of her guilt – Applicant denied she had lied – No direction given to jury with respect to questions in cross-examination – Whether absence of direction to jury not to use impugned evidence as incriminating conduct evidence gave rise to miscarriage of justice – Conviction on Charge 1 inevitable – Application for leave to appeal refused.

Jury Directions Act 2015, ss 19, 20, 21, and 23, considered.

Zoneff v The Queen (2000) 200 CLR 234; Baini v The Queen (2012) 246 CLR 469; Awad v The Queen (2022) 275 CLR 421; Gaio v The Queen (1960) 104 CLR 419, considered.

APPEAL – Conviction – Applicant Chinese national with limited understanding of English language – Applicant required interpreter in police interview and at trial – Whether interpreter present at police interview interpreted conversation accurately – Audio of interview of poor quality – Audio played at trial – Interpreter engaged at trial did not interpret interview to the applicant – Whether failure by Crown to adduce proof that interpreter who interpreted the interview did so accurately gave rise to miscarriage of justice – Where trial counsel consented to audio being adduced as evidence without proof of accuracy of its interpretation – Application for leave to appeal refused.

Azizi v The Queen (2012) 224 A Crim R 325; DPP v BB [2010] VSCA 211; NT v The Queen (2012) 225 A Crim R 102, referred to.

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Counsel
Applicant:		Mr DA Dann KC with Mr J O’Connor
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
KAYE JA
T FORREST JA:

The applicant was charged on indictment with four offences, alleged to have been committed by her at her home in Ringwood on 4 September 2021, namely: trafficking in a commercial quantity of methylamphetamine (charge 1); trafficking in a commercial quantity of heroin (charge 2); cultivation of a narcotic plant (cannabis) (charge 3); and negligently dealing with the proceeds of crime (charge 4).
The applicant pleaded guilty to charge 3 (cultivation of the narcotic plant cannabis). After the prosecution opening, the applicant’s counsel, in his preliminary opening, invited the jury to convict the applicant of the statutory alternatives to charges 1 and 2, namely, trafficking simpliciter in methylamphetamine and heroin respectively. Thus, the sole issue in the trial was whether the prosecution could prove, beyond reasonable doubt, that the applicant intended to traffick in each of those two substances in an amount not less than the relevant commercial quantity.
Following a nine day trial, the jury returned verdicts of guilty to charges 1 and 2, and not guilty to charge 4. Subsequently, following a plea made on her behalf, the applicant was sentenced to a total effective sentence of 6 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months.
The applicant seeks leave to appeal against conviction on the following four grounds:
Ground 1:
The conviction on Charge 2 is unreasonable or cannot be supported having regard to the evidence, in that it was not open to a properly directed jury to conclude that the applicant intended to have in possession for sale at least 50 grams of pure heroin.
Ground 2:
A substantial miscarriage of justice occurred by reason of the learned prosecutor being permitted to put to the accused that she had lied in her evidence, and that she had done so because she had been conscious of her guilt, and/or by reason of the jury not being adequately directed in respect of that evidence.
Ground 3:
A substantial miscarriage of justice has been occasioned by the failure of the prosecution to prove that the interpreter who purportedly interpreted the applicant’s interview with police did so properly and accurately.
Ground 4:
A substantial miscarriage of justice occurred by reason of the interpreter engaged at the trial not interpreting the record of interview to the applicant as it was played, and due to the poor audio of the recording played to the jury.
Ground 5:
A combination or aggregation of defects occasioned a substantial miscarriage of justice.

Summary of relevant facts

The applicant, who was born in China in 1965, migrated to Australia in 2000. She spoke both Mandarin and Cantonese, but she had a very limited capacity to speak, understand or read English.
At the time of the offending, the applicant resided in her home in New Street, Ringwood. In mid-2021, Ming Wai Chan (‘Chan’) had resided in the property as a tenant. The applicant evicted him from the premises after he had caused damage to it. Chan told the applicant that he was expecting some packages to be delivered to her home in Ringwood, and he said he would pay her to accept delivery of it. Subsequently, when a package arrived, the applicant passed it on to Chan, expecting to be paid for doing so. However, Chan did not pay the applicant.
In late August 2021, a second parcel arrived at the applicant’s home, having been left on the front doorstep. It was not addressed to any person who the applicant knew. The applicant took it inside the house and did nothing with it. Subsequently, Chan telephoned the applicant and asked to collect it. As a result of that telephone call, the applicant opened the parcel, and found that it contained substances that she suspected were drugs.
The applicant commenced to obtain some information about the nature of the substances. In doing so, she spoke with a man named Taan, who was a friend of the cousin of her son, Jayden. In her interview with police, and in her evidence in the trial, the applicant stated that she then had three meetings with Taan concerning the drugs.
The first meeting took place on 2 September 2021 at a petrol station in Box Hill. The applicant’s son Jayden attended the meeting to interpret the conversation. The applicant said that she had picked up a random sample of the drugs, which she placed in a small bag and which she gave to Taan. In exchange, Taan gave her $600.
The applicant, in her interview and in her evidence at the trial, said that subsequently, Taan contacted her and sent her a text message, asking her to bring all the substances to him, because he wanted to ascertain whether they were worth any money. He told her to bring bags containing 28 grams of the substances he referred as ‘ice’ (methylamphetamine) to him.
Accordingly, the applicant weighed some of the bags of methylamphetamine. In her interview (according to the Cantonese interpreter), she said that she weighed eight or nine bags of the substance, each containing 28 grams. However, in her evidence-in-chief at the trial, she said that she did not weigh all the bags, and she only weighed three or four bags of the substance, each being 28 grams in weight. In cross-examination, when challenged on that part of her evidence, the applicant first maintained that the interpreter must have made an error in translating her statement, by saying that she had weighed eight to nine bags of 28 grams. However, later in cross-examination, she admitted that she did say the words that were translated in the interview, namely, that she had weighed eight to nine bags, each of 28 grams, and that her answer to the police in that regard was truthful.
The second meeting with Taan occurred on 3 September 2021. The applicant and her son met Taan outside Taan’s house in Footscray. The applicant had the substances with her in eight or nine bags, each of 28 grams weight. However, Taan said that he did not have any money with him. He offered her a watch, which he claimed was worth $15,000. As Taan did not give her any money, the applicant did not give him any of the substances.
After the applicant returned home, Taan messaged her, asking for another meeting, so that he could ascertain whether the substances were fake or genuine.
As a result, a third meeting took place on 3 September 2021, at 7:00 pm at the Mitcham Railway Station. The applicant had all the substances with her, but Taan only asked for samples of them. The applicant gave him two samples and left, but Taan did not give her any money in exchange.
In the meantime, Chan, apparently, became suspicious of the assertion, by the applicant to him, that the parcel had not arrived at her house. On 4 September 2021, Chan and two other persons loitered around her home. After being alerted by a neighbour, the applicant checked CCTV footage, and saw Chan outside her premises. She asked her son Jayden to contact police. When police attended, they noticed a strong smell of cannabis emanating from her house. On entering the house, they found a hydroponic cannabis growing facility in it.
Police then obtained a search warrant on the same day. On execution of the warrant, apart from the cannabis, drugs were found in two other locations.
In an anteroom just inside the front door, a small tub was found to contain two snap-lock bags, one of which contained 18.2 grams of methylamphetamine, and the second of which contained 103.5 grams of heroin. Two sets of digital scales and an assortment of snap-lock bags were also found in the room.
On the back of the bedroom door of the premises, a blue ‘Telstra’ shopping bag was hanging. It was found to contain nine snap-lock bags, which contained a total of approximately 251 grams of methylamphetamine, together with a tenth snap-lock bag, which contained 29 grams of heroin. In addition, another set of digital scales and two spoons were located in the room.
In two of the bedroom drawers in the bedroom, a total sum of $58,000 in cash was found in bundles of $50 notes, along with a ‘post-it’ note, recording the flow of funds from and to that connection over recent days. The cash was the subject of charge 4, of which the applicant was acquitted.
In addition, CCTV footage, and stills from the household security cameras, depicted the commencement, and conclusion, of an expedition that the applicant had undertaken with the intention of selling at least some of the drugs to Taan.
Subsequent analysis, by the Victoria Police Forensic Services Department, of the substances located at the applicant’s house revealed the following:
(a)The total quantity of methylamphetamine (in mixed substance) was 269.3 grams, with a purity ranging between 82% and 84%. Thus, the quantity of methylamphetamine was equivalent to 1.08 times the prescribed mixed commercial quantity of methylamphetamine (250 grams) and more than four times the prescribed pure commercial quantity of methylamphetamine (50 grams).
(b)The total quantity of heroin (in a mixed substance) was 132.6 grams, with a purity between 72% and 74%. That quantity was equivalent to 96 grams of pure heroin, which was approximately 1.9 times the limit for a pure commercial quantity (50 grams). The mixed quantity (132.6 grams) was less than the prescribed mixed commercial quantity (250 grams).
(c)In respect of the cannabis: two plants weighed 271 grams; three cannabis stems weighed 26 grams; four cannabis plants weighed 72 grams; 36 stems weighed 229 grams; cannabis buds weighed 8.2 grams; and some mixed cannabis weighed 1.2 grams.
The applicant was interviewed by police on 6 September 2021, with the assistance of a Cantonese interpreter. In the interview, she made a number of admissions concerning her dealings with the substances, and how she came into possession of them. She admitted that she possessed the drugs for the purposes of sale, and that her motivation was greed. The applicant expressed regret at ‘all the trouble’ that her conduct had caused.

Summary of evidence

A substantial amount of the facts in the case were not in dispute. As a result, the prosecution case was confined to the evidence of three witnesses.
First Constable Emma Welsh, who was then stationed at Croydon Police Station, gave evidence about her attendance at the Ringwood property on 4 September 2021 in response to the telephone call of the applicant’s son. On attending, she noted a strong smell of cannabis emanating from the applicant’s home. Other police were called and attended. On entering the house, they discovered the cannabis plants growing in the front bedroom. A search warrant was executed, and Constable Welsh performed the role of keeping the evidence log, recording items that were located by police.
The informant, Senior Constable Caleb Thompson, gave evidence as to his attendance at the Ringwood property on 4 September, and as to the seizure of items at the premises. In his evidence, Senior Constable Thompson identified a number of photographs that were taken in the course of the search.
Specifically, Senior Constable Thompson gave evidence as to the location and seizure of a zip-lock bag containing a crystal-like substance, and a zip-lock bag containing white powder, in a clear tub opposite the sewing machine in an anteroom just inside the front door of the premises. He also located two sets of scales and a number of snap-lock bags in the same room.
In addition, Senior Constable Thompson located a blue bag, hanging on the door of the main bedroom. Inside the blue bag he found nine bags of a clear crystal substance, and an additional snap-lock bag containing another substance.
Senior Constable Thompson also gave evidence as to the interview that he conducted with the applicant at Croydon Police Station on 6 September 2021. The interview was conducted through a Cantonese interpreter. The recording of the interview was tendered in evidence, and a transcript of it was provided to the jury for its assistance. Grounds 3 and 4 of the application for leave to appeal raise specific issues concerning the interpretation of the interview, and the nature and the quality of the recording.
The third witness for the prosecution was Mr Peter McCaffrey, a forensic officer. Mr McCaffrey examined and analysed a number of items, provided to him by the informant, including the bags of substances that were located by police in the Ringwood premises.
In particular, Mr McCaffrey gave the following evidence:
•Eight of the bags of crystal substance (located by police in the blue ‘Telstra’ bag in the bedroom at the Ringwood premises) consisted of 223.3 grams of methylamphetamine, with a purity of 84%. The ninth bag contained 27.8 grams of methylamphetamine with a purity of 82%.
•The tenth bag, contained in the ‘Telstra’ bag, consisted of 29.1 grams of diacetylmorphine (heroin), with a purity of 74%.
•The zip-lock bag with a crystal-like substance, located in the tub in the anteroom, contained 18.2 grams of methylamphetamine, with a purity of 82%.
•The zip-lock bag with a white powder substance in it, located in the same tub, contained 103.5 grams of diacetylmorphine (heroin), with a purity of 72%.
Thus, Mr McCaffrey noted that the total weight of the methylamphetamine located at the premises was 269.3 grams, and that the total weight of the diacetylmorphine (heroin) was 132.6 grams. He calculated that, thus, there was 225.3 grams of pure methylamphetamine, and 96 grams of pure heroin, in the items that he had examined.
In cross-examination, Mr McCaffrey described the process, undertaken by him, in determining the purity of each of the two substances. He agreed that each of the two substances might have had purity ‘on all ends of the spectrum, so that sometimes drugs may be a very low purity, and sometimes they’re quite high’. He said that, from his experience recently, the majority of the substances analysed by him constituted higher purity methylamphetamine.
Mr McCaffrey further stated that he had analysed heroin that was ‘on all ends of the spectrum’ in terms of its purity. He agreed that he would have seen samples previously in which the purity of the heroin was lower than that detected in the present case (between 72% and 74% purity). However, he added that, in his experience over the last decade or so, he had been seeing the purity of heroin increase, and ‘the frequency of the higher purity is more so’. Mr McCaffrey also agreed that the purity of heroin or methylamphetamine cannot be reliably determined by observation without appropriate analysis.
The applicant gave evidence in defence of the charges. She stated that at about the end of August 2021, she found a rectangular box that had been left outside on the doorstep of her house. She took the box inside, and left it inside the living room. Subsequently, she received a telephone call from Chan. Chan had resided in her house for a short period a couple of months before then, but that she had evicted him, because he had damaged her house. After she received the package on her doorstep, Chan contacted her, but he did not say what was inside the package. Following the telephone call, the applicant decided to open the package. When she did so, she found, in effect, three substances — one which was a black powder (which she described as looking like coffee), one which comprised white powder, and one which was a substance that looked like sugar. She said she had never consumed drugs, and she had no understanding of the purities of them.
The applicant said that she took steps to ascertain what the substances were. She looked for information on the internet. She said that a cousin of her son contacted her and said that he had a friend, whose name was Taan, and he gave the applicant Taan’s contact number. As a result, the applicant’s son arranged a meeting with Taan.
The first meeting was at a gas station in Box Hill. The applicant drove to the meeting with her son, and she took a small bag, which contained the ‘sugar-like’ substance (methylamphetamine). When she met Taan at the petrol station, she gave him the small bag, and, in return, Taan gave her $600.
Subsequently, Taan contacted the applicant and asked her to bring ‘everything’ to him, because he wanted to find out whether the substances were worth any money and how much they were worth. Taan told the applicant to put the powder-like substances into 28 gram bags. The applicant gave evidence that, as a result, she poured some of the items into bags, and they consisted of powder and sugar. She said that there were a number of empty zip-lock plastic bags in the package in which the substances had been contained. She poured some of the substances into those bags, and some of them she poured into a big bag. She said that, as Taan had asked her to put 28 grams into each bag, she had put them on a scale. However, she said she did not weigh all of them, and she did not weigh the bigger bag into which she had placed all the smaller bags.
The applicant then said that, in fact, she did not separate the ‘sugary stuff’ (methylamphetamine) into nine bags, but only about three or four bags, and that she did not separate the ‘powdery substance’ (heroin). She said that she did not change the packaging of the powdery substance. However, she also said that she could not clearly detect which of the substances were powders and which were crystals. She weighed three or four bags, but she could not tell whether they were powdery or crystal-like.

On the following day, the applicant met with Taan at Footscray. She was accompanied by her son. Taan asked her to give him everything, but he did not have any money on him. He said that he could only give her a watch. The applicant did not agree to that proposal, so she left without exchanging any of the substances with Taan.
On the same day, a few hours later, Taan contacted the applicant, and asked to meet her at Mitcham Station. He asked her to bring some small bags, because he wanted to check whether the substance was ‘real’. In response, the applicant attended at Mitcham Station, and she took two bags of the samples with her. She gave the bags to Taan, and he left without giving her any money. He said he needed to check whether they were genuine or fake.
The applicant said that when she returned home, she placed the blue bag, which contained the substances, in a ‘random place’, on the back of the door of her bedroom. She did not think they were worth any money, and she did not pay any attention to them.
The applicant then gave evidence that, on the following day, 4 September, her neighbour called her and told her that there were people creating noises outside her home. When the applicant checked on her telephone, she saw Chan and a few other persons loitering outside the house. So she asked her son to contact the police.
The applicant agreed that when she was interviewed by the police, she said that she opened the package, that had been left on her doorstep, out of curiosity, and she was ‘greedy’, in the hope that she could sell those items for money. However, she thought that they were useless, so that she just left them in the bag at the back of the door.
The cross-examination of the applicant was quite extensive, and was contained in almost 200 pages of transcript. The following is a brief resume of the most relevant aspects of it.
In cross-examination, the applicant said that before the second meeting with Taan in Footscray, she only weighed three or four of the bags. She disagreed that in her interview with police, she had said that she had weighed eight or nine bags, which each contained 28 grams of substance. She said that when Taan asked her to separate the substances, she put them into three or four bags, and she then put everything together when she went to see Taan. When pressed in cross-examination concerning what she had said in her interview, the applicant said that she did not believe that the interpreter accurately interpreted what she had said, and the audio quality of the recording was very bad. She said that the first occasion, upon which she had watched and listened to the recording, was when it was played during the trial. She again insisted that she only made three or four bags of the substance.
The prosecutor then took the applicant to her answer to question 29 in the interview. She confirmed that when the police officer asked her what was the weight of the substance she had placed into bags, she had responded that she had made eight to nine bags.
The applicant said that, at the first meeting at the Box Hill service station, when she gave Taan a bag in exchange for $600, Taan offered to pay her $7,000 for the drugs. He said that he wanted to check whether they were valuable, and, if they were valuable, then he would pay $7,000. The applicant also agreed that as soon as she had opened the package, and had seen the three substances in it (the coffee-coloured substance, the powdery substance, and the sugary substance), she suspected that they were drugs, but she did not recognise them. She conducted a search on the internet in Chinese. The applicant also said that she had previously learnt about growing cannabis when she received a card in the mail, and, in response, she had gone to an address, which was located at a warehouse, and where she was introduced to how to grow cannabis.
The applicant agreed that, on the second meeting with Taan, she took all of the items with her. She agreed that she wanted money for the drugs. However, when Taan only offered her a watch, she did not agree, and she took everything back. The applicant also agreed that, in the anteroom, near the plastic tub, there was a small set of portable scales. She said that she used those scales to measure the substances. She also said that there were multiple sets of scales at her home.
In further cross-examination, the applicant said that Taan used the term ‘hot’ to refer to the powdery substance. She confirmed that she thought that the substance was a drug, but Taan did not purchase it, so he did not confirm that it was.
The applicant was then cross-examined about answers she had given in the recorded interview. In respect of her answer to question 28, she agreed that she had said in the interview that she weighed the bags according to Taan’s advice, but, when she went back to Taan, he did not have money, so ‘it was not successful’. In answer to the next question (question 29) — ‘What was the weight?’ — she agreed that she had answered, ‘So according to Taan’s advice 28 grams per bag and I had made eight to nine bags’. She agreed that the translation of her answer was correct.
The applicant was then asked about the answer she had given in her interview concerning the contents of the blue bag, hanging on the back of her bedroom door. She agreed that she had told police that there were nine bags, and that each bag weighed 28 grams, as instructed by Taan. She also agreed that she had told police that she, herself, had weighed and divided the bags. The applicant also agreed that, in her interview, she had said that the watch, which Taan had offered her, was worth $15,000. However, she had not agreed to receive it in exchange for the drugs.
The applicant also agreed that she had weighed the substances and divided them into bags. Some of the white powder and some of the sugary substance were left over, and she had placed the remaining substances in a tub in the anteroom.
The applicant was questioned about answers that she gave at the end of her interview. When asked what was her purpose for trafficking a commercial quantity of methylamphetamine (question 207), she responded that she had done research on the nature of the substance, that she ‘now’ knew that it was drugs, and that she wanted to see if she could sell it. She said that when she opened ‘the thing’, she suspected it might be ‘ice’, so she researched it online to see how much it was worth. She said that she wanted to try to sell it, but other people asked her about its quality.
Finally, the applicant agreed that she knew that the powdery substance consisted of 132 grams of heroin. However, she did not know its purity.

Ground 1 — submissions

Counsel for the applicant commenced his submissions, in support of ground 1, by noting that, at the time of the alleged offending, a commercial quantity of heroin was defined in the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’) as 250 grams (mixed) or 50 grams (pure). Counsel noted that the total amount of heroin, located at the premises, was 132.6 grams, and that the total quantity of pure heroin within that mixture was 96 grams. Accordingly, the critical question for the jury in respect of charge 2 was whether the prosecution had proven, beyond reasonable doubt, that the applicant intended to possess for sale at least 50 grams of pure heroin. Thus, in order to convict the applicant on charge 2, the jury must be satisfied, beyond reasonable doubt, that the applicant believed that there was a significant or real chance that the quantity of pure heroin, located at the premises, exceeded 50 grams.
Counsel submitted that that conclusion was not reasonably open to the jury, for a combination of reasons. First, there was no evidence that the applicant had been informed of the purity of the heroin, contained in the parcel that had been left on her doorstep. Secondly, there was no evidence that the applicant had the means to ascertain the purity of the heroin. Thirdly, in her record of interview, the applicant was not asked about the purity of the drugs contained in the parcel. Fourthly, in her evidence at the trial, the applicant denied that she was aware of the purity of the heroin. Fifthly, counsel noted that, in order to amount to 50 grams of pure heroin, the quantity of mixed heroin, contained in the package (132.6 grams), would have been required to have a purity of at least 38%. According to Mr McCaffrey, the purity of heroin, contained in the package (72% to 74%), was a ‘high level of purity in relation to heroin’. Sixthly, there was no other evidence in the case regarding the purity in which heroin might be found.
Counsel further submitted that the evidence, that at one point Taan suggested to the applicant that each of the bags of the substances shown to him (including the heroin) might be worth $7,000, could not support any inference that the applicant, as a consequence, had any understanding of the purity of the heroin that she possessed. In particular, counsel noted that there was no evidence that the suggestion, made by Taan, had any relationship to the level of purity or otherwise of the substance.
For those reasons, it was submitted that it was not open to the jury, properly directed, to be satisfied beyond reasonable doubt that the applicant intended to traffick in at least a commercial quantity of heroin.
In response, counsel for the respondent submitted that it was reasonably open to the jury to be satisfied, beyond reasonable doubt, that the applicant believed that there was a real or significant chance that the heroin, contained in the package, was at least 38% pure. In support of that submission, counsel noted the applicant’s admission, in her evidence, that she knew that she was in possession of between 100 grams and 200 grams of the ‘powdery substance’ (that is, heroin). She agreed in cross-examination that she was aware there was about 132 grams of heroin in the bags. Counsel also noted that the applicant understood that the value of the drugs was linked to their purity. The applicant enlisted the services of Taan to assist her to determine the value of the drugs, and, for that purpose, she provided samples of the powder substance to him.
Counsel also noted that the applicant admitted that she and her son had discussed the drugs, and suspected that they might be ‘worthy’, in view of the fact that Taan had offered them $7,000 per bag. The applicant’s account, that she was offered a watch by Taan (purportedly worth $15,000) in exchange for the methylamphetamine and heroin, and that she rejected that offer, demonstrated that the applicant was unwilling to part with the drugs without receiving what she believed to be reasonable compensation. Counsel also noted that the applicant had expected that Taan was going to give her a lot of money in exchange for the methylamphetamine and heroin at their third meeting at Mitcham Station.
Counsel also relied on the evidence that the applicant possessed the accoutrements of drug trafficking, which contradicted her claim that she was naïve in relation to drug trafficking issues. Finally, counsel relied on the evidence of Mr McCaffrey that, over the last decade, there has been an increase in the purity levels of heroin seized and examined by Victoria Police, so that although Mr McCaffrey considered that a purity of 72% to 74% was high, it could not be characterised as unusually high.
Based on those matters, it was submitted that there was ample evidence on which the jury could be satisfied, beyond reasonable doubt, that the applicant believed that there was a real or significant chance that the heroin was at least 38% pure.

Ground 1 — analysis and conclusion

Ground 1 is directed to the verdict of the jury on charge 2 on the indictment. The ground is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court must allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied, beyond reasonable doubt, of her guilt on charge 2.[1] In determining that question, the court is required to make its own independent assessment of the evidence. However, in doing so, it must give full weight to the jury’s advantage in observing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person.[2]
[1]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); [2001] HCA 13; Pell v The Queen (2020) 268 CLR 123, 146–7 [42]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (‘Pell’).
[2]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which the witness gave evidence in the witness box, is a matter for the jury and not the appellate court.[3] The court explained the function of the Court of Appeal in the following terms:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[4]
[3]Pell (2020) 268 CLR 123, 144–5 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[4]Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Section 70(1) of the Drugs, Poisons and Controlled Substance Act 1981 defines ‘traffick’ to include (inter alia) to have a drug of dependence in possession for sale. In the present case, it was not in issue that the applicant had the quantity of heroin in her possession for the purposes of selling it. The sole issue was whether the prosecution could prove, beyond reasonable doubt, that the applicant intended to possess for sale a quantity of heroin that was not less than the commercial quantity of heroin, that is, a quantity that was not less than either 250 mixed, or 50 grams pure. The evidence established that, at the relevant time, the applicant had in her possession 132.5 grams of mixed heroin, which comprised 96 grams of pure heroin. Thus, the critical issue was whether the prosecution could prove, beyond reasonable doubt, that the applicant intended to possess for sale at least 50 grams of pure heroin.
In accordance with the principles outlined by this Court in Director of Public Prosecutions Reference No 1 of 2004; R v Nguyen,[5] the trial judge directed the jury that if it was satisfied, beyond reasonable doubt, that the applicant believed that there was a significant or real chance that she possessed for sale the drug in question (heroin) in a quantity not less than a commercial quantity, then that finding would be capable of sustaining the inference that she intended to traffick the drug in that quantity. The judge added that the jury should not draw such an inference unless it was satisfied that it was the only inference reasonably open on the whole of the evidence.
[5](2005) 12 VR 299, 308–9 [23] (Vincent, Eames and Nettle JJA); [2005] VSCA 172; see also R v Bui [2005] VSCA 300 [24]–[26] (Eames JA); R v Page [2008] VSCA 54, [6]–[8] (Maxwell JA); Mustica v The Queen (2011) 31 VR 367, 375–8 [37]–[46] (Ashley JA); [2011] VSCA 79.
Accordingly, the question, which this Court must determine, is whether it was open to the jury to be satisfied, beyond reasonable doubt, that the applicant believed that there was a significant or real chance that she possessed for sale pure heroin in a quantity that exceeded 50 grams.
The starting point is that there was no direct evidence at all that the applicant knew, or had any understanding, of the level of purity of the quantity of heroin of which she was in possession, and which she intended to sell. In particular, there was no admission by the applicant to that effect in her interview with police, or in her evidence. If the jury rejected the denial that she made, in cross-examination, that she had any knowledge of the purity of the drug, the jury’s rejection of that aspect of the applicant’s evidence could not be used as a basis for concluding that the applicant did have some knowledge or awareness of that matter.
In this context, it is particularly significant that the evidence demonstrated that, before the parcel in question was left on the applicant’s doorstep, the applicant herself had no knowledge or familiarity with heroin (or methylamphetamine). The prosecution did not put in issue the account given by the applicant in her interview, and in her evidence, as to how she came to be in possession of the substance, namely, that it had been left in a parcel on the doorstep of her home for her previous boarder, Chan. Accordingly, this was not a case in which the prosecution could rely on the specific circumstances in which the accused person had come into possession of the particular drug (such as, by acquiring it from a dealer or the like) as a form of evidence from which the jury might infer knowledge, by the accused person, of the purity and value of the substance.
Taken at its highest, the prosecution case, in effect, was that, based on the evidence, the applicant did have some understanding, in general terms, that the value of a particular drug may be linked to its quality. In that context, the respondent has relied on the evidence, that Taan suggested that the drugs, possessed by the applicant, might be worth a substantial amount of money. In the applicant’s record of interview, she said that he offered her $7,000 per bag for the ‘hot’ substance (heroin) at either their second or third meeting. In her evidence, she also said that, at one point, he offered her a watch that he said was worth $15,000.
Certainly, that evidence would have indicated to the applicant that the heroin that she possessed had, or might have had, potentially a substantial value. However, logically, it could not form the basis of a conclusion, beyond reasonable doubt, that, as a consequence, the applicant was aware that there was a significant or real chance that the quantity of heroin that she then possessed (132 grams) included at least 50 grams of pure heroin. The evidence that the applicant gave as to suggestions by Taan as to the value of the heroin did not, of itself, contain any suggestion as to the potential purity level of the heroin.
The evidence given by Mr McCaffrey did not advance the prosecution case on this critical aspect of charge 2. Mr McCaffrey gave evidence that, over the previous decade, there had been an increase in the level of purity of heroin, and in the frequency in which he, himself, had analysed heroin of ‘higher’ purity levels. However, that evidence did not, either of itself or in combination with the other evidence, constitute a basis upon which the jury could conclude, beyond reasonable doubt, that the applicant herself was aware that there was a significant or real chance that the heroin, possessed by her, was at least of 38% purity. As we have noted, there was no evidence, at all, that the applicant had any understanding of the purity levels of heroin.
The other item of evidence, relied on by the respondent, was that the applicant was found to be in possession of what might be described as accoutrements of drug trafficking, such as scales, spoons, ‘deal bags’, and CCTV cameras around her property. It was submitted that the possession, by the applicant, of those items contradicted her claim that she was naïve in relation to drug trafficking activities. It is quite apparent on the evidence that the applicant had already embarked on the process of cultivating cannabis. There was no evidence that the applicant had acquired the scales, and other items, after she had (accidentally) come into possession of the obtained (inter alia) methylamphetamine and heroin. In any event, the applicant’s possession of those items — and, in particular, the scales — could have informed the applicant of no more than the fact that she knew (as she admitted) the gross weight of the product held by her.

In summary, in essence, the prosecution was able to prove, beyond reasonable doubt, that the applicant knew that she was in possession of heroin, the total weight of which was 132 grams, and that the applicant intended to sell that quantity of the substance. However, there was no evidence, and certainly no sufficient evidence, upon which the jury could conclude, beyond reasonable doubt, that the applicant herself believed that there was a significant or real chance that the amount of heroin that she held for sale consisted of pure heroin in a quantity that was not less than 50 grams. It was not open to the jury to conclude that an inference to that effect was the only reasonable inference available on all the evidence in the case.
For those reasons, ground 1 of the application for leave to appeal against conviction must be upheld. The conviction of the applicant on charge 2 was unreasonable, and could not be supported having regard to the evidence, and it was not open to the jury to conclude, beyond reasonable doubt, that the applicant intended to have in possession for sale at least 50 grams of pure heroin.

Ground 2 — background

Ground 2 is directed to the following passage in the cross-examination, by the prosecutor, of the applicant:
PROSECUTOR: You’ve lied to this jury about the number of bags that you weighed and put the powder into or the substance into?---I didn’t lie. I said everything that was asked and that I know.
PROSECUTOR: And I want to suggest to you that the reason you lie to the jury and have lied to this jury is because you know that you did the wrong thing?
---I want to say that I didn’t lie. I know that I’ve done the wrong thing because I touched these package things.
PROSECUTOR: And, just to be clear – I note the time, Your Honour – when I say “wrong thing”, I’m saying, in terms of the quantity, you knew that you possessed for sale more than 250 grams of methylamphetamine, didn’t you?
---Yes.
Before the prosecutor undertook that part of the cross-examination, he sought the leave of the judge, in the absence of the jury, to put to the applicant that she had lied in her evidence, and that she had done so because she was conscious of her guilt. The prosecutor acknowledged that that line of cross-examination would enliven s 19 of the Jury Directions Act 2015. In the ensuing discussion, the judge and defence counsel expressed doubt as to whether such a line of questioning would enliven the requirements of s 19 of the Jury Directions Act. Defence counsel stated that he did not consider he could ‘sensibly object’ to the line of cross-examination, and that it was a matter that might be better reserved for discussion in respect of the Jury Directions Act requirements at the conclusion of evidence.
Subsequently, at the conclusion of evidence in the trial, the prosecutor sought an incriminating conduct direction pursuant to s 21 of the Jury Directions Act. Defence counsel opposed that course, submitting that the passage of the evidence in question was not reasonably capable of constituting incriminating conduct, that is, an implied admission by the applicant. Having given the matter consideration overnight, the judge, the next morning, ruled that the evidence, relied on by the prosecution, did not constitute conduct that was reasonably capable of being regarded by the jury as evidence of incriminating conduct. As a consequence, the jury was not given any direction relating to the passage of cross-examination undertaken by the applicant, which is the subject of ground 2.

Ground 2 — submissions

In support of ground 2, counsel for the applicant submitted that the judge erred, first, by permitting the impugned questions to be put to the applicant in the first place, and, secondly, by failing to give to the jury a direction about whether the process of reasoning, that was the basis of the questions, was permissible. As a consequence, it was submitted, there was a substantial risk that the jury might have engaged in impermissible and inappropriate reasoning.
Counsel submitted that the questions were put by the prosecutor to the applicant in powerful terms. Further, in his final address, the prosecutor referred to the same passage of cross-examination. In those circumstances, counsel submitted that there were substantial and compelling reasons for the provision of a direction by the judge to the jury in accordance with s 23 of the Jury Directions Act.
In response, counsel for the respondent noted that the applicant gave quite inconsistent evidence as to whether she had weighed eight or nine bags of methylamphetamine, as opposed to three or four bags of the substance. As a consequence, the prosecutor was entitled to challenge the applicant about that inconsistency in cross-examination, and, in doing so, to put in question her credibility. Counsel noted that before the prosecutor undertook the cross-examination in question, he fairly and correctly, in the absence of the jury, raised the issue, whether the evidence constituted incriminating conduct. In response, counsel for the applicant did not object to that course. Instead, consistent with s 20 of the Jury Directions Act, the issue was deferred until the conclusion of the evidence.
Counsel further noted that, in view of the determination by the judge, that the alleged lie by the applicant was not reasonably capable of being viewed as incriminating conduct, counsel for the applicant could have sought a direction, under s 23 of the Jury Directions Act, to counteract any perceived prejudice that might have arisen from the line of questions undertaken by the prosecutor. Counsel did not seek such a direction, and, it was submitted, there were sound forensic reasons not to do so. In particular, counsel for the respondent noted that such a direction, in the context of the trial, might have re-enlivened and emphasised the issue, to the detriment of the applicant. Counsel submitted that that course, undertaken by defence counsel at trial, was appropriate. The impugned passage in the evidence consisted of two questions in the course of cross-examination that extended over four days. The applicant refuted each of the two questions put to her by the prosecutor. Further, the questions were put by the prosecutor in quite general terms.
For those reasons, counsel for the respondent submitted that, even if the prosecutor’s line of questioning should not have been permitted, there was no substantial risk that the jury would use the evidence impermissibly as incriminating conduct. Accordingly, in the context of the whole trial, it could not be demonstrated that the questions by the prosecutor gave rise to a substantial miscarriage of justice.

Ground 2 — analysis and conclusion

In considering ground 2, the first point, which is relevant, is that before the prosecutor embarked on the passage of cross-examination in question, he properly and correctly, in the absence of the jury, foreshadowed that line of questioning, and accepted that it would enliven the provisions contained in Part 4, Division 1 of the Jury Directions Act 2015, concerning incriminating conduct by an accused person. Clearly, in view of the fact that the matter had arisen in the course of cross-examination, the prosecutor had not been in a position to give the requisite notice under s 19 of the Act. Nevertheless, it was appropriate for the prosecutor to raise the matter with the judge, and for the judge to determine whether the line of questioning, foreshadowed by the prosecution, should be permissible.
Further, it is important to keep in mind that, in the course of the ensuing discussion of the matter with the judge, counsel who then acted for the applicant, when consulted, stated that he considered that the matter should be ‘reserved’ for the discussion under the Jury Directions Act at the conclusion of the evidence. Counsel stated: ‘…I don’t see that I can sensibly object to him cross-examining (along those lines)’. In other words, defence counsel specifically elected, at that point, not to object to the line of cross-examination foreshadowed by the prosecution. Nor did defence counsel seek a ruling, by the judge, as to whether such a line of questioning should be permissible in the circumstances.
It was in those circumstances that the cross-examination by the prosecutor, which is the subject of ground 2, proceeded. Two points are particularly relevant. First, the applicant specifically refuted the first proposition put to her by the prosecutor, that she had lied to the jury about the number of bags that she had weighed and into which she had placed the substance. Secondly, when it was put to the applicant that she had lied because she knew she had ‘done the wrong thing’, the applicant responded that she did not lie, and she knew she had ‘done the wrong thing’, because she had handled the packages. The next question asked by the prosecutor was to the effect that the applicant knew that she had possessed for sale more than 250 grams of methylamphetamine. The applicant answered that question, ‘Yes’. In other words, in response to the question asked of her, the applicant made a clear and unequivocal admission of that central fact in the prosecution case.
That admission by the applicant was not, in context, accidental. In the cross-examination that immediately preceded the passage in question, the applicant agreed that she had weighed and measured out nine bags, each of 28 grams, of the substance. She then said that she had weighed three or four bags, but she had measured out nine bags. It was quite apparent, both in the record of interview and in evidence, that the applicant was a person of at least average, if not above average, intelligence. Based on that evidence alone, the applicant’s evidence, before the impugned passage of cross-examination, amounted, in effect, to an admission that she had measured out bags, the total quantity of which must have exceeded 250 grams, for the purpose of selling that quantity. Accordingly, the applicant’s accession to the last question put to her in the impugned passage — that she knew that she possessed for sale more than 250 grams of methylamphetamine — was plainly an admission by her of that fact.
In re-examination, the applicant said that before she was arrested, she never made the calculation by multiplying the number of bags (nine) with the weight of each bag (28 grams). Realistically, that qualification in the applicant’s evidence (if accepted) must have been of little moment in the resolution of the central issue in respect of charge 1. Put simply, the evidence of the applicant, under cross-examination, that she had measured out nine bags, and that she had weighed three or four of those bags at 28 grams, was more than sufficient evidence upon which the jury could be satisfied, beyond reasonable doubt, that the applicant (at the least) knew that there was a significant or real chance that she possessed for sale methylamphetamine in a mixed quantity that exceeded 250 grams.
It is in that context that it is necessary to consider whether the judge erred by failing to give the jury a direction under s 23 of the Jury Directions Act in respect of the impugned passage of cross-examination that is the subject of ground 2. In accordance with the ruling of the judge, the prosecutor, in final address, did not seek to rely on the impugned passage of cross-examination as evidence of incriminating conduct by the applicant. The prosecutor did refer to part of that passage, which concluded with the applicant expressly admitting that she knew that she possessed for sale more than 250 grams of methylamphetamine.
In those circumstances, it is quite understandable why defence counsel did not, at trial, request that the judge provide to the jury a direction in accordance with s 23 of the Jury Directions Act, which is based on the model direction formulated by the High Court in Zoneff v The Queen.[6] As counsel for the respondent has submitted, such a direction, at that stage of the trial, expressed in that way, might have been counterproductive for the applicant. The impugned question was contained in a short passage of the cross-examination of the applicant which had proceeded over some four days of the trial. In those circumstances, there were appropriate forensic reasons for defence counsel at trial not to seek such a direction. Equally, it would have been inappropriate for the judge, by his own motion, to have given the jury such a direction.
[6](2000) 200 CLR 234; [2000] HCA 28.
In summary, the prosecutor put to the applicant in cross-examination, the impugned passage, having raised the matter in the absence of the jury, and in circumstances in which counsel for the applicant expressly declined to object to the proposed line of questioning. Further, in the circumstances that we have outlined, it was quite appropriate that the judge did not give the jury a direction under s 23 of the Jury Directions Act.
In addition, in the circumstances of the case, it is quite clear that a conviction on charge 1 was inevitable.[7] In her evidence, the applicant admitted that she had weighed eight or nine bags of methylamphetamine, each containing 28 grams, and that she knew that she possessed for sale more than 250 grams of mixed methylamphetamine.
[7]Baini v The Queen (2012) 246 CLR 469, 479–482, [26]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59; Awad v The Queen (2022) 275 CLR 421, 431–2 [26]–[28], 434 [34], 435 [39] (Kiefel CJ and Gleeson J), 444–5 [76]–[78] (Gordon and Edelman JJ); [2022] HCA 36.
For those reasons, it has not been demonstrated that there was a substantial miscarriage of justice arising out of the impugned questions, asked by the prosecutor of the applicant, and further or alternatively, arising from the circumstance that the judge did not give the jury any direction relating to those questions.
It follows that ground 2 of the application for leave to appeal against conviction must fail.

Ground 3 — background

The applicant was a Mandarin and Cantonese speaker, but she did not speak, understand or read English. When the applicant was interviewed by police on 6 September 2021, a Cantonese interpreter interpreted the questions put to her, and the answers that the applicant gave to those questions.
At the trial, the applicant was assisted by a Mandarin interpreter. When the record of interview was played to the jury, that interpreter did not interpret to the applicant the English content of the recording. The audibility of the interview was poor, and there was a lot of distracting background noise, which was commented on by both counsel and the judge in the course of the trial. Further, it would seem, the transcript of the interview contained a number of mistakes.
When the applicant was cross-examined about the interview, on a number of occasions, she maintained that she had not said in the interview what the prosecutor suggested was contained in the transcript of the interview. As a consequence, the prosecution engaged a second Cantonese interpreter. During the following two days, that interpreter identified a number of inaccuracies in the record of interview. However, at the conclusion of the cross-examination, the applicant admitted that she had said a number of the words that were recorded as originally translated by the first interpreter, and she agreed that those words were the truth of the matter. As a result, the prosecution decided not to seek to reopen the case to call the second Cantonese interpreter.

Ground 3 — submissions

In support of ground 3, counsel for the applicant submitted that in the above circumstances, what occurred at the trial was quite unsatisfactory, but that it is not necessary for this Court to make an assessment of those matters. For, counsel submitted, the authorities make it clear that where a record of interview has been conducted with the aid of an interpreter, and the record of interview is relied on in evidence by the prosecution, evidence must be adduced that the interpreter correctly interpreted the interview. No such evidence was called in the present case.
Counsel submitted that the miscarriage of justice, occasioned by the prosecution’s failure to adduce such evidence, was significant in the present case for the following reasons:
(a)The prosecutor relied on alleged lies in the record of interview as bearing on the applicant’s credibility.
(b)The prosecution relied on alleged lies in the applicant’s evidence (which were said to be lies because they were inconsistent with her record of interview) as bearing on the applicant’s credibility.
(c)In cross-examination, the prosecutor put to the applicant that she had told those lies because she was conscious of her guilt.
(d)There was a real possibility that the interview was not properly and accurately interpreted.
In response, counsel for the respondent noted that both before the trial, and at the trial, the applicant admitted the record of interview, and consented to it being adduced in evidence, without proof of the accuracy of its interpretation. In those circumstances, it was submitted, the prosecution was not required to adduce strict proof as to the interpretation of the contents of the interview. That admission by the applicant was made in the defence response filed on behalf of the applicant, was confirmed before the trial judge at the commencement of the trial, and was restated again after the close of evidence.
Although originally the applicant might have agreed to the admissibility of the record of interview because of a misunderstanding that the applicant’s solicitor had confirmed its accuracy, that was not the case as the trial progressed. Thus, counsel submitted, the course adopted by the applicant at trial was a deliberate forensic choice by applicant’s counsel.
It was submitted that that choice was sound, for a number of reasons. First, the concerns about the accuracy of the record of interview were largely settled by the second Cantonese interpreter. Any amendments suggested by that interpreter were relatively inconsequential. Secondly, the key admissions, relied on by the prosecution, were each formally proven through the cross-examination of the applicant. Thirdly, the contents of the interview were, in fact, central to the defence case. In final address, defence counsel contended that the applicant’s willingness to participate in the interview, and the admissions she made in it, bolstered her credit. He invited the jury to accept the narrative, given by the applicant in the interview, as true. Fourthly, counsel noted that the applicant’s counsel at trial sought to utilise the issues, relating to the interpretation of the interview, to the strategic advantage of his client. Although he invited the jury to accept the portions of the interview that assisted the applicant, he also invited the jury to resolve any doubts about what the applicant ‘meant’ in her favour.
Finally, counsel for the respondent noted that the key part of the interview, which the applicant originally claimed was misinterpreted (namely, that she had weighed eight or nine bags of methylamphetamine), was interpreted accurately, as the applicant herself admitted under cross-examination. Counsel noted that the applicant’s counsel had an opportunity to seek a direction regarding any residual concerns about the interpretation of the interview, but he was unable to identify any specific instance relevant to a fact in issue, and, ultimately, he did not request such a direction.

Ground 3 — analysis and conclusion

It is well-established that, in order that evidence be admissible of an out of court conversation involving a party who does not speak English, and that has been conducted through an interpreter, there must be evidence that the interpreter accurately translated the content of the conversation.[8]
[8]Gaio v The Queen (1960) 104 CLR 419, 421 (Dixon CJ), 427, 429 (Fullagar J), 430–431 (Kitto J), 434 (Menzies J); [1960] HCA 70; Azizi v The Queen (2012) 224 A Crim R 325, 344 [84] (Bongiorno JA); [2012] VSCA 205; DPP v BB [2010] VSCA 211, [35]–[36] (Bongiorno JA).

It is, of course, commonplace that, in any litigation, a party may agree to the admission of a piece of evidence without the other party adducing formal proof of it. Thus, in the case of an out of court conversation involving one party who does not speak the English language, the parties may agree that the out of court interpretation of it is accurate, and may therefore agree to the admission of that interpretation without formal proof of the accuracy of it.[9]
[9]NT v The Queen (2012) 225 A Crim R 102, 112 [47] (Nettle, Redlich and Osborn JJA); [2012] VSCA 213.
In the present case, in considering the evidence and the proceedings in the trial of the applicant, four points are relevant. First, it is clear that the applicant consented to the admission of the police interview in evidence without the prosecution being required to formally prove the accuracy of the interpretation of it by the interpreter through whom the interview was conducted. Secondly, the applicant did not seek to withdraw her consent to the admission of the interview, or to have the jury discharged, at the points in the trial at which some difficulties arose concerning the audibility and the translation of the interview. Thirdly, it is quite evident that, although there were some difficulties with the translation of the interview, they were not of such moment as to require any re-evaluation of the translation of the interview that had been put before the jury, or to require the prosecution to reopen its case to formally prove the interpretation of the interview. Fourthly, counsel for the applicant had sound tactical reasons for acceding to the admission of the interview, as the account given by the applicant to police in it formed an important basis of her defence to the charges on the indictment, and, in particular, charges 1 and 2.
Each of those four points are quite evident from an examination of the proceedings in the trial.
Before the commencement of the trial, in a ‘summary of defence response’, the applicant’s legal representatives made a number of formal admissions, including an admission as to the record of interview, subject to ‘some edits’.
On the first day of the trial, before the jury was empanelled, the judge asked counsel if the edits to the record of interview were agreed. In response, counsel for the applicant stated that they were agreed, so that by the time the interview was to be played, hopefully, the prosecution would have them attended to. The jury was subsequently empanelled on the first day of the trial.
On the second day, in the absence of the jury, the prosecutor informed the judge that the required edits had been made to the record of interview, and had been provided to the defence. Later on the same day, and in the absence of the jury, the judge asked counsel whether the interview had been listened to by someone on behalf of the applicant to ensure that the interpreter, who was present in the interview, ‘got it right’. The judge asked counsel whether there was any issue about that matter, to which counsel for the applicant responded, ‘No, there isn’t Your Honour’. Counsel confirmed that there was no issue, and confirmed that when the interview was played, the interpreter, who was then present in court, would not need to interpret it to the applicant. (That point is also relevant to ground 4 of this application.)
The evidence then proceeded in the trial. It concluded on the first day with the informant, Senior Constable Thompson, giving evidence about the conduct of the interview, and, in particular, that the interview had been conducted through a Cantonese interpreter.
On the following day (the second day of the trial), the recording of the interview was played to the jury. At the commencement of that process, a transcript of the interview was provided to the jury, and the judge gave the jury the usual direction, that the transcript is not evidence, but that it was provided to assist the jury to follow the recording of the interview.
In the course of that process, it became quite evident, both to the judge and to the parties, that there were some problems with the audibility of the recording of the interview, particularly as there was significant background noise recorded on it. In addition, the judge noted that there appeared to be some errors in the transcript of the interview, although his Honour considered that they did not appear to be significant. The judge also noted that there appeared to be some gaps in the translation of the interview by the interpreter, and, in particular, it appeared that the transcriber had been unable to record in the transcript, that had been provided to the jury, the translation provided by the interpreter, because the interpreter’s voice had dropped out. The judge remarked that the applicant’s solicitor spoke the language in which the interview was conducted, and that he might be able to reach some agreement about any corrections that were required. In the course of that discussion, the prosecutor noted that the interpreter, who was in court, and who was assisting the applicant, spoke Mandarin, and that the interpreter in the interview had spoken Cantonese. The prosecutor stated that inquiries were being undertaken to have a second interpreter listen to the interview and to fill in the gaps in it, and to provide an amended document to the parties.
On the next day (the third day of the trial), the jury asked a question: ‘If interview is evidence, not the transcript, and we can’t hear audio’. In response, the judge gave the jury the appropriate direction, namely, that the evidence was constituted by what the jury was able to hear on the recording, and that while the transcript might assist the jury, the transcript itself was not evidence in the case.
The recording of the interview was continued to be played to the jury. At the conclusion of that process, the prosecutor tendered the recording of the interview as an exhibit in the trial (Exhibit 4). Significantly, counsel for the applicant did not object to the tender of the interview.
At the next break in the proceeding, the prosecutor, in the absence of the jury, noted the comment, that had been made by the judge on the previous day, relating to the possibility that some matters might not have been recorded in the transcript of the interview. The judge responded that the court had been assured by defence counsel about that matter, because his instructing solicitor was fluent in the language in which the interview was conducted. At that point, counsel for the applicant told the judge that he had been proceeding on a misunderstanding as to that matter, and that his instructing solicitor did not speak the dialect of Chinese in which the interview had been conducted. The prosecutor noted that the interview had been in the hands of the defence for at least one year, and no issue had been raised concerning it with the prosecution. The judge then remarked that it was not necessary to consider the matter further, because of the assurance by defence counsel that he was not concerned about the parts of the translation, which the transcriber apparently missed.
The prosecution case continued, and concluded on the fourth day of the trial. The applicant then gave detailed evidence through an interpreter.
At an early stage in the cross-examination of the applicant, the prosecutor asked the applicant about an answer that she had given to a question in the interview. The applicant responded, ‘That’s not what I meant, the interpreter misinterpreted’. A short time later, the prosecutor proceeded to cross-examine the applicant concerning evidence that she had given, that she had weighed three or four bags of the substance that she provided to Taan. In that part of the cross-examination, the prosecutor put to the applicant that, in answer to questions 28 and 29 of the interview, she had told police that she had made eight or nine bags, each containing 28 grams. When asked if she agreed that she had said that to the police, the applicant responded, ‘I disagree’. That part of the cross-examination effectively concluded the proceedings on the fourth day.
On the following day, the prosecutor again pursued the same issue. The applicant, in her evidence, responded that Taan had asked her to separate the substance into a few bags — three to four bags. The prosecutor continued to press the applicant concerning that part of her evidence. In answer to further questioning, the applicant said that she did not believe that the interpreter had interpreted what she had said accurately. She said that the recording quality was poor, and that the first time that she had listened to the recording of it was when she heard it in court.
At the next jury break, the prosecutor expressed concern about the evidence, given by the applicant, that there were inaccuracies in the record of interview. He noted that the defence response to the prosecution opening had not raised any issue concerning the interview or concerning the admission of the interview in evidence. The prosecutor noted that his instructing solicitor was making inquiries to obtain the services of a second Cantonese-speaking interpreter to examine the content of the interview.
When the evidence of the applicant resumed, the prosecutor again pursued the same line of questioning, contrasting the evidence given by the applicant with the answers that she had given to question 29 of the interview. In the course of that cross-examination, she responded that when she listened to the recording of the interview, there were a few places where ‘it wasn’t what I meant’.
At the next jury break (which was at lunch time on the fifth day), the judge inquired as to what was occurring about the issue of the accuracy of the interpretation of the interview. When court resumed (and again in the absence of the jury), the prosecutor told the judge that a second Cantonese interpreter was available to review the audio recording. The jury re-entered the court, and the cross-examination of the applicant continued.
On the next day of the trial (the sixth day), in the absence of the jury, the prosecutor informed the judge that the Cantonese interpreter, who had been engaged on the previous day, had provided to his instructor, late in the last evening, a transcript with annotations of where she had filled in some gaps and made some comments. The prosecutor provided a copy of that document to the judge. In the course of the ensuing discussion, counsel for the applicant said that his concern was that while some of the matters were inconsequential, some of them might be consequential. Counsel stated that the jury would need to be directed about the matter.
Further discussion then took place between the judge and counsel. It concluded with the prosecutor informing the judge that his understanding was that the second Cantonese interpreter, who was making edits to the interview, would give evidence that the interview had, in fact, been transcribed accurately, although there were some different words that had been used, and that the answers had been interpreted in a different chronological order to that in which the applicant had spoken them. The prosecutor informed the judge that he anticipated that the second Cantonese interpreter would give evidence to that effect. In answer to a question by the judge, the defence counsel said that he agreed to that proposed course of action.
The cross-examination of the applicant then continued in the presence of the jury. At the next break, in the absence of the jury, the prosecutor informed the judge that the second Cantonese interpreter had almost completed her task, and that she would be able to give evidence about whether portions of the interview were accurate or inaccurate, or whether there were omissions from it. The prosecutor told the judge that, in effect, there would be a new edition of the document, which he had earlier provided to the judge and to defence counsel, in an updated form.
The cross-examination of the applicant again continued until the luncheon adjournment. At that point, in the absence of the jury, the prosecutor told the judge that the prosecution had the final version of the interview, as reviewed by the second interpreter, and that, in addition to the footnotes and annotations previously added to it, there were some further handwritten additions and clarifications on it.
The cross-examination of the applicant again proceeded. In the course of it, there took place (in the absence of the jury) the discussion between counsel and the judge concerning the proposed cross-examination, by the prosecutor, that was the subject of ground 2.
In further cross-examination, the applicant agreed that the translation of the answers to questions 28 and 29, by the interpreter, were accurate, and she agreed that she had told police that, according to Taan’s advice, she made eight or nine bags, of 28 grams per bag, of the substance.
Subsequently, during a further break in the cross-examination, and in the absence of the jury, the prosecutor told the judge that he had almost finished cross-examining the applicant about the record of interview. He stated that, in view of the answers given by the applicant, he did not consider that there was any basis to reopen the case (that is, to reopen the case to call the second Cantonese interpreter to verify the interpretation of the interview). In response to a question by the judge, defence counsel agreed with that proposition.
As we have earlier noted, it is quite clear that four points, which are relevant, arise from the preceding review of the relevant aspects of the transcript of the trial.
First, from the outset, the applicant (through her legal representatives) agreed to the admission of the recorded interview, without the prosecution being required to prove the accuracy of the interpretation of it by the interpreter who assisted the applicant in the course of the interview. Secondly, during the trial, when aspects concerning the accuracy of the interview were raised by the applicant in her evidence, defence counsel did not seek, then, to require the prosecution to formally prove the accuracy of the translation of the interview by the interpreter who participated in it, or otherwise. Thirdly, and importantly, it seems quite clear that, notwithstanding the difficulties in the recording of the interview, and the difficulties in the translation of it, nevertheless, the interpretation of the critical parts of the interview was accurate and was accepted as such by the applicant in her evidence.
The fourth, and important, point is that the decision made by the defence counsel, not to object to the admission of the interview, had a sound forensic basis. As we have discussed in considering ground 1, a critical aspect of the defence by the applicant of charges 1 and 2 concerned the acceptance (or at least, non-rejection) by the jury of her account as to how she came to be in possession of the drugs in question. The credibility of that account, which she gave in her evidence, was enhanced by the circumstance that she had given the same account to the police. In final address, defence counsel submitted to the jury that the applicant’s willingness to participate in the interview, and the admissions that she made in it, supported the credibility of the account that she gave to police. In that respect, counsel noted that the applicant had attended the police station on 6 September by agreement, that, after being told that she had the right to remain silent, she gave her account, and that she made frank admissions in the interview, including that she was greedy and had sought to profit from the opportunity that had been presented to her, by trying to sell the drugs.
For those reasons, ground 3 of the application for leave to appeal must fail. In short, the applicant agreed to the admission of the interview into evidence without the prosecution being required to prove that the interpreter, who had participated in the interview, did so accurately. That course of action, adopted by defence counsel, had a sound forensic basis. Accordingly, it could not be maintained that there was a substantial miscarriage of justice, occasioned by the circumstance that the prosecution did not adduce proof that the interpreter, who interpreted the interview in the course of it, did so accurately and properly.

Ground 4 — submissions

In support of ground 4, counsel noted that the applicant had not been taken through her interview by her legal representatives before the commencement of the trial.
Counsel further noted that the interpreter, who was engaged at the trial, spoke English and Mandarin, but not Cantonese. The interpreter, who was engaged at the interview, spoke English and Cantonese. As a consequence, the interview was not interpreted for the applicant when it was played to the jury. The audio of the interview, played in the courtroom, was of very poor quality and was very difficult to listen to. The prosecutor, defence counsel, and the judge each, at different stages, remarked on the poor quality of the recording. In addition, the transcript of the interview contained a large number of errors.
Counsel noted that it was in those circumstances that the applicant, in her evidence, said that she had not stated in the interview certain things that the prosecutor suggested that she had said. Ultimately, she agreed that she did say some of those things. However, it was submitted, by that point, her credibility had been irreparably damaged.
In those circumstances, it was submitted that a substantial miscarriage of justice had been occasioned by the failure of the interpreter, engaged at the trial, to interpret the interview to the applicant as it was played in court.
In response, counsel for the respondent noted that, at trial, the admissibility of the recorded interview was not in issue, and it formed an important part of the defence case. While the audibility of the interview was ‘far from perfect’, the jury was given the usual direction, that the evidence consisted of what the jury could hear, and the transcript was simply an aid in that respect. The applicant gave evidence at trial, and she was able to give her account, so that any part of the narrative, that was not sufficiently audible in the interview, was put before the jury. In those circumstances, it was submitted that the poor audio quality of the interview did not disadvantage the applicant in the presentation of her case at trial.
Counsel for the respondent further noted that, at the trial, the applicant’s counsel agreed that there was no need for the interview to be interpreted to the applicant as it was being played. While the interpretation of the applicant’s interview might not have been word-perfect, nevertheless, it was submitted, it did not misrepresent the content of the questions and answers in it. Counsel noted that it has not been demonstrated that the applicant was unable to follow or understand the interview, or that she sustained any disadvantage by not having it interpreted to her as it was played to the jury.
Counsel further noted that the applicant’s claim, that her credit was damaged due to issues relating to the interpretation of the interview, was without any foundation. Although initially her claim that there was a significant error in the interpretation of question 29, subsequently, she resiled from that position.

Ground 4 — analysis and conclusion

For the following reasons, ground 4 of the application for leave to appeal must fail.
At the outset of the trial, counsel for the applicant, in response to a question by the judge, informed the court that there was no issue about the accuracy of the interview, so that, when the interview was played in court, the interpreter in court would not need to interpret the content of that interview to the applicant.
As discussed in respect of ground 3, in the course of the trial, and, in particular, during cross-examination of the applicant, issues arose as to the accuracy of the original interpretation of the interview. However, ultimately, it became common ground that those issues did not affect the central aspects of the interview, and that there was, accordingly, no requirement for the prosecution to reopen its case in order to adduce evidence as to the accuracy of the interpretation of it by the interpreter, who participated in the interview.

In the course of cross-examination of the applicant, there were instances in which the applicant maintained that she did not give particular responses to questions asked of her in the interview as recorded in the transcribed document. However, as we have discussed in respect of ground 3, at the conclusion of cross-examination, the applicant accepted that, in respect of central issues in the case, she had given the response as recorded in the transcript, and that that response was correct. Most specifically, the applicant accepted that she had, in fact, prepared eight or nine bags of ‘ice’ (methylamphetamine), with the intent that they be provided to Taan. Any damage that was occasioned to the applicant’s credibility was due, principally, if not wholly, to the fact that that concession by the applicant in cross-examination contradicted evidence that she had given earlier in chief, that she had only prepared three or four bags of the substance for Taan. It has not been demonstrated how that inconsistency in the applicant’s evidence was caused by, or arose from, the fact that, in the course of the trial, the interview was not translated to the applicant at the time at which it was played to the jury.
As we have discussed in considering ground 3, the content of the interview was an important aspect of the evidence in support of the account, given by the applicant, as to how she had come to be in possession of the drugs that were the subject of charges 1 and 2. For the reasons already discussed, that aspect of the applicant’s evidence was of particular importance, and it gained credibility from the fact that the applicant had already given that account to police in the interview. The applicant’s evidence, on that aspect of her case, was consistent with what the applicant had already told police in the interview, and, indeed, ultimately, was not put in issue by the prosecution.
For those reasons, it could not be maintained that a substantial miscarriage of justice occurred by reason of the circumstance that the interpreter, engaged at the trial, did not interpret the record of interview to the applicant as it was being played.
It was quite evident, from remarks made by the judge and counsel in the course of the trial, and from a question asked by the jury, that the recording of the interview that was played to the court had poor audibility. A significant part of the problem arose from the fact that there was a substantial background noise, which did affect the audibility, particularly of some of the answers recited by the interpreter in the interview. It must be remarked that the poor audibility of the recording was most unsatisfactory. It would be hoped, and, indeed, expected, that the poor quality of the recording in this case was not typical of that which is experienced in other cases.
Nevertheless, it has not been demonstrated that the poor audibility of the interview caused any disadvantage or injustice to the applicant. As we have discussed, the applicant’s account of how she came into possession of the drugs was recorded in the interview, and was adequately set out in the transcript of the interview that was provided to the jury to assist it to follow the interview.
For those reasons, ground 4 of the application for leave to appeal must fail.

Ground 5 — submissions

In support of ground 5, counsel for the applicant submitted that the combination of the errors, identified in grounds 2 to 4, amounted to a substantial miscarriage of justice. In response, counsel for the respondent contended that none of the matters raised, either individually or cumulatively, has led to a substantial miscarriage of justice.
Counsel for the respondent further submitted that, considering all of the evidence in the trial, this was a case in which a conviction on charge 1 was inevitable. In that respect, counsel relied on the evidence given by the applicant to the effect that:
(a)she had weighed eight to nine bags of methylamphetamine, each containing 28 grams;
(b)after she weighed the drugs and divided them into bags, there was still methylamphetamine left over;
(c)she knew that she possessed for sale more than 250 grams of methylamphetamine.

Ground 5 — analysis and conclusion

For the reasons we have set out above, grounds 2, 3 and 4 of the application for leave to appeal each fail. It follows that ground 5 also does not succeed.

Conclusion

For the foregoing reasons, we have reached the following conclusions:
(a)The applicant should be granted leave to appeal on ground 1, the appeal allowed, and the conviction of the applicant on charge 2 on the indictment set aside.
(b)The application for leave to appeal on grounds 2, 3, 4 and 5 should be refused.
As a result of our conclusion in respect of ground 1, the applicant’s conviction on charge 2 is set aside. At the trial, counsel then acting for the applicant submitted to the jury that it should acquit the applicant on charge 2, and convict her of the alternative charge, namely, trafficking in a drug of dependence (heroin) simpliciter. On this application, counsel acting for the applicant correctly accepted that if ground 1 were to succeed, this Court should, in a similar manner, substitute a conviction of the applicant on that alternative charge. Counsel further submitted that, in those circumstances, any sentence imposed on the applicant should be served concurrently with the sentence imposed by the primary judge on charge 1.
The concession so made by counsel for the applicant was correct. Accordingly, it will be ordered that the conviction of the applicant on charge 2 is set aside, and that, in lieu, the applicant is convicted on the alternative charge of trafficking in a drug of dependence, namely diacetylmorphine (heroin), contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
The sentences imposed on the applicant by the trial judge were constituted as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment C2114783.1
1	Trafficking in a drug of dependence - commercial quantity (contrary to s. 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981)	25 years’ imprisonment	5 years’ and 6 months’ imprisonment	Base
2	Trafficking in a drug of dependence - commercial quantity (contrary to s. 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981)	25 years’ imprisonment	5 years’ and 6 months’ imprisonment	12 months
3	Cultivation of a narcotic plant (contrary to s. 72B of the Drugs, Poisons and Controlled Substances Act 1981)	15 years’ imprisonment	1month’s imprisonment	Nil
Total Effective Sentence		6 years 6 months’ imprisonment
Non-ParolePeriod:		4 years 6 months

In the circumstances of the case, it is appropriate that, in lieu of the sentence imposed on charge 2 by the judge, the applicant be sentenced to a term of imprisonment of 18 months, and that it be ordered that 4 months of that sentence be served cumulatively upon the sentence imposed on charge 1. Accordingly, the total effective sentence is 5 years and 10 months’ imprisonment. It is directed that the applicant serve a minimum term of 3 years and 10 months before becoming eligible for parole.

[2025] VSCA 4

13 February 2025