Yong v The King - [2025] WASCA 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   YONG -v- THE KING [2025] WASCA 37
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   18 JULY 2024
DELIVERED          :   14 MARCH 2025
FILE NO/S:   CACR 34 of 2024
BETWEEN:   KINBOON YONG
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of importing a commercial quantity of methamphetamine - Whether fresh and compelling evidence shows a miscarriage of justice occurred - Whether additional evidence should be admitted in appeal

Legislation:

Criminal Code (Cth), s 307.1

Result:

Extension of time to appeal refused
Application to adduce additional evidence dismissed
Leave to appeal on grounds 1, 2 and 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	L Glenn

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Brar v The Queen [2016] VSCA 281; (2016) 263 A Crim R 67
Clarke v The State of Western Australia [2018] WASCA 14
Law v The Queen [2020] WASCA 196
Luo v The King [2025] WASCA 36
Luo v The Queen [2020] WASCA 184

JUDGMENT OF THE COURT:

This is an appeal against conviction. On 14 December 2017, after a trial which spanned more than two months before Fiannaca J and a jury, the appellant, Kai Cheong Law, Jie Luo, Fook Choi Ching, Yuen Kuan Chong, Chee Seng Tang, and Teck Kong Wong, were each found guilty of offences arising out of the importation of a commercial quantity of methamphetamine.
The appellant was convicted of an offence that between about 16 October 2015 and 20 May 2016, in the vicinity of Port Denison and elsewhere in the State of Western Australia, he imported a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth) (the Code). On 26 June 2018, the appellant was sentenced to 26 years' imprisonment, with a 17‑year non‑parole period.
This appeal was filed approximately five years and nine months out of time. Accordingly, an extension of time is required. The delay in bringing the appeal has not been adequately explained. Whether an extension of time is granted will depend upon the merits of the appeal.
At one point in this appeal, the appellant was legally represented. On 9 July 2024, he filed a notice of self‑representation. He represented himself at the hearing of the appeal.
The appellant seeks to advance three grounds of appeal, expressed as follows:
Ground 1: The compelling fresh evidence emerges proved beyond reasonable doubt that the Methamphetamine was not imported by the fishing vessel registration 'M65535A' where Mr Jie Luo was one of three skippers. The said vessel was not the carrier for the importation of subject drug. The vessel was not linked to police investigation into the vicinity of Port Denison Methamphetamine transporting activities of few Malaysian people. Appellant's charge for importation the methamphetamine should be dropped and amended. Appellant did not repudiating the involvement in handling the drug.
Ground 2: Compelling fresh evidence emerged after the trail [sic] proved beyond reasonable doubt that the investigation was grossly improper and resulting in miscarriage of justice
2.1The vessel was not forensically examine, no chemical test to confirm the Methamphetamine found in various locations in Perth which handled by a ground of Malaysian people were linked to the vessel.
2.2The vessel was optioned away without forensically examine or chemically tested. Police annihilated the evidence before the investigation and trial.
Ground 3: Compelling fresh evidence proved beyond reasonable doubt that the vessel and its members were not linked to the group of Malaysian who was involved in drug.
There was no link between the fishing vessel registration 'M65535A' and the group of Malaysian People's arrest; the vessel was arrested by the police on 1 May 2016, all members on board of the vessel was detained and the investigation started immediately, the video interview was recorded on 3 May 2016. The Malaysian people were continue their activities and not went into concealing, they were arrested after 23 May 2016. Period between the arrest of vessel and the Malaysian people's arrest was 20 over days proved beyond reasonable doubt the two cases were not linked to each other. (underlining in original)

The grounds of appeal all refer to 'compelling fresh evidence'. Grounds 1 and 3 are materially the same as grounds 1 and 3 in the second appeal against conviction brought by Mr Luo under pt 3A of the Criminal Appeals Act 2004 (WA) (CAA). Ground 2 raises issues very similar to both Mr Luo's second appeal against conviction and Mr Law's second appeal against conviction. Mr Luo and Mr Law's second appeals against conviction were heard on the same day as the appellant's appeal. Both second appeals were dismissed. See Luo v The King.[1] To be clear, the appellant's appeal is not a second appeal under pt 3A of the CAA. It is an appeal under pt 3 of the CAA and is not subject to the limitations that apply to an appeal under pt 3A.
[1] Luo v The King [2025] WASCA 36.
All of the appellant's grounds of appeal allege the existence of 'compelling fresh evidence'. The 'compelling fresh evidence' which underpins the grounds of appeal relied upon by the appellant is the subject of an application to adduce additional evidence in the appeal filed on 14 May 2024. The application seeks to adduce the same evidence sought to be adduced in the second appeals of Mr Luo and Mr Law. The additional evidence comprises the affidavits of:
(a)Mr Luo, sworn 2 April 2024;
(b)Mr Law, sworn 2 April 2024;
(c)Mr Wong, sworn 17 April 2024;
(d)Mr Ching, sworn 17 April 2024;
(e)Mr Tang, sworn 17 April 2024; and
(f)the appellant, sworn 17 April 2024.
On 9 July 2024, the appellant filed an application for witness summonses to issue to Mr Luo, Mr Law, Mr Wong, Mr Ching, and Mr Tang. At the hearing of the appeal on 18 July 2024, the application for the issue of witness summonses was dismissed, with reasons to be given later.
For the reasons that follow, we have concluded that the grounds of appeal advanced by the appellant have no merit. We would refuse the applications to extend time, adduce additional evidence in the appeal and for leave to appeal. In these circumstances, to issue witness summonses would have been pointless.

The Crown case against the appellant

The Crown case at trial concerning the appellant was as follows.
On 27 April 2016, Australian Border Force (ABF) officers observed what appeared to be a fishing vessel, named 'Megaprofit II' (also referred to at the trial and in the course of these proceedings as 'M 65535A'), approximately 380 nautical miles off the coast of Western Australia, heading in a southerly direction towards Geraldton. The ABF officers observed that the fishing vessel was carrying a tender. On the deck were a number of empty polystyrene boxes, disguised to make it appear as if the boat was engaged in fishing activities. In fact, there was no fishing equipment on board the vessel and it was not set up for a fishing expedition.
The observations of the ABF officers were referred to the Australian Federal Police (AFP), and a police operation commenced. The ABF continued to monitor the progress of the vessel. Between 5.00 pm and 7.00 pm on 30 April 2016, crew members on the vessel loaded not less than 182.41 kg of methamphetamine (145.6 kg pure weight) contained in 15 black bags from the vessel onto the tender. The crew launched the tender using a crane or davit. The tender was then piloted to a location on the Western Australian coast, about 30 km south of Port Denison.
At about 5.30 am on 1 May 2016, the tender, carrying the methamphetamine, landed at the location. Waiting onshore were four persons, being Mr Chong, Mr Ching, Mr Tang, and another man named Kian Kee Tan.[2]
[2] Mr Tan, who was referred to at the trial as 'Fat Boy', departed Perth before being arrested and was not charged with the offending.
The crew of the tender delivered the 15 black bags containing the methamphetamine onto the beach, where it was collected by Mr Chong, Mr Tang, Mr Ching and Mr Tan, who had travelled to the location in three vehicles.
Fourteen of the 15 bags were loaded onto the vehicles between 5.30 am and 6.15 am on 1 May 2016. The fifteenth bag was accidentally left behind. This bag was later retrieved by Mr Chong and Mr Tan.
The tender returned to the fishing vessel, having been given, at the landing location, five bags of cooking salt by a member, or members, of the shore party. Enquiries revealed that this salt was manufactured in Australia and had been purchased by one of the shore party on 26 April 2016. The tender was observed by ABF officers at about 12.40 pm tracking towards the vessel, and, shortly after, rendezvousing with it. The ABF officers observed that the tender was lifted onto the vessel with difficulty.
At about 5.55 pm on 1 May 2016, the vessel was intercepted and boarded by ABF officers and Western Australian Police officers. There were eight crew on board, including Mr Luo and Mr Law. The vessel was detained and taken back to Geraldton. All those on board the vessel were arrested.
Meanwhile, after the tender left the location near Port Denison and the bags containing methamphetamine were loaded onto the vehicles that had been driven to the site, Mr Chong, Mr Ching, Mr Tang and Mr Tan drove south towards Perth. The vehicles proceeded to the Wilbinga rest stop, located about 70 km north of the Perth CBD. There, the men met the appellant and Mr Wong, who had travelled to the rest stop to meet them. There, the appellant got into one of the vehicles being driven by the shore party, which contained the 14 bags of methamphetamine. He drove the vehicle, with the drugs on board, to one or more safe houses in the Perth metropolitan area which had been selected for, at least, temporary storage and warehousing of the drugs.
Between 2 and 6 May 2016, the vessel was thoroughly examined by the AFP. The external appearance of it was of a run‑down fishing boat, but the vessel contained quite sophisticated surveillance equipment which was not entirely consistent with its external appearance. The tender was stowed on board and was assessed to be of a fairly high quality and high value, capable of travelling at relatively high speeds. The vessel was carrying about 60 tonnes of fuel. There were various concealed areas on the vessel, including in the fuel tanks themselves.
During the search of the vessel and tender, law enforcement officers located:
(1)five bags of salt that had been purchased on 26 April 2016 in Perth, of a brand sold exclusively by independent supermarkets in Australia;
(2)five satellite telephones, GPS devices, electronic data storage cards, and navigational equipment relevant to Australia and its waters with stickers bearing the letters 'AU';
(3)a sealing machine with 13 rolls of clear tape and a packet of large plastic;
(4)small quantities of methamphetamine, which were retrieved from within a number of black‑coloured nylon bags of the same type as the bags that were subsequently retrieved at a premises leased by the appellant;
(5)an orange‑coloured length of rope of a similar type as that found at a premises leased by the appellant, and parts of which were found at the landing site; and
(6)a piece of paper, on which was written GPS coordinates of the landing site, which was found in the cabin area of the vessel.
Armed with the GPS coordinates of the landing site, law enforcement officers conducted a forensic search of the site. DNA matching that of Mr Chong, Mr Tang, and Mr Ching was extracted from cigarette butts found at the site.
It took some time for law enforcement authorities to locate the methamphetamine which had been brought ashore on the tender.
On 20 May 2016, a search warrant was executed at an address on Tarradee Circuit, Thornlie (the Thornlie premises), where Mr Tang, Mr Chong, and Mr Ching were present and were then arrested. One of the vehicles at the premises, registered under Mr Tang's name, subsequently tested positive for methamphetamine.
Also on 20 May 2016, a search warrant was executed at an address on Fraser Road North, Canning Vale (the Canning Vale premises), which was leased by the appellant and where he was present. The appellant was found in possession of 4.1 g of methamphetamine, which he admitted he owned. The appellant asserted that he had imported the 4.1 g of the drug when he arrived in Australia on 16 October 2015. However, subsequent comparative analysis between that 4.1 g and the bulk quantities of methamphetamine that were discovered later at other premises, making up the approximately 182 kg allegedly imported into Australia, showed that all of the seized methamphetamine was from the same original batch. Swabs taken from the rear tray and rear passenger doors of a Toyota HiLux at the Canning Vale premises also tested positive to methamphetamine. This vehicle was alleged to be the vehicle driven by the appellant and Mr Wong to the Wilbinga rest stop on 1 May 2016.
On 20 May 2016, yet another search warrant was executed, this time at premises situated on Thomas Street, East Cannington. These premises were being leased and occupied at the time by Mr Wong. An examination of a mobile telephone seized from these premises revealed entries for Indian Ocean Drive, Wilbinga Grove (that is, the rest stop at Wilbinga), an address on Parsons Street, Embleton (the Embleton premises), the Thornlie premises, and another address in East Cannington, on Gerard Street (the East Cannington premises).
On 21 May 2016, a search warrant was executed at the East Cannington premises. Enquiries revealed that this house had also been leased by the appellant. These premises were clearly a safehouse, and did not give the appearance of being occupied. Keys seized from the Canning Vale premises opened the front door of these premises. There, police officers located five suitcases which contained 131.32 kg of methamphetamine. Police also located a plastic bag under a bed containing about 1 kg of methamphetamine, a box of clipseal bags, and two sets of scales which tested positive for both methamphetamine and the appellant's fingerprints. Other items located at the premises were gloves, a wheel rim of the type suitable for the Toyota HiLux that the appellant had used to travel to the Wilbinga rest stop, and a rental agreement in the appellant's name for the premises.
On 23 May 2016, a search warrant was executed at the Embleton premises that were being used by Mr Yoke Cheng Chin.[3] One of the bedroom doors was locked. When opened, officers found a suitcase on a shelf which contained 25.3 kg of methamphetamine packed into clear clipseal bags of approximately 1 kg each. A second suitcase was concealed under a double bed and contained 25.6 kg of methamphetamine also packed into clear clipseal bags of approximately 1 kg each.
[3] Mr Chin pleaded guilty to possession of a commercial quantity of a border controlled drug, namely methamphetamine, that was reasonably suspected of having been unlawfully imported, contrary to s 307.8 of the Code. He was not a named accused in the trial.
Chemical analysis of the methamphetamine seized from the Canning Vale (the 4.1 g of methamphetamine found in the appellant's possession), the East Cannington and the Embleton premises showed that it all originated from the same batch. The Crown case was that all of this methamphetamine had been imported into Australia by the vessel and had been landed at the location near Port Denison on 1 May 2016. The total quantity of the methamphetamine seized at the premises was at least the 182 kg alleged to have been imported on that date.
The appellant's fingerprints were lifted from a number of objects, including from various locations within the East Cannington premises; on a plastic tub found at the Canning Vale premises which tested positive for methamphetamine; on the outside of a suitcase found at the Embleton premises which contained methamphetamine; from a suitcase seized at the Canning Vale premises; from another suitcase seized from the East Cannington premises which contained traces of methamphetamine; and a set of scales seized from the East Cannington premises.
Other evidence which implicated the appellant included:
(a)On 15 October 2015, the appellant arrived in Brisbane on a flight from Malaysia. On his passenger arrival card he stated that the purpose for his visit was for a holiday, with an expected stay of six days.
(b)On 19 October 2015, the appellant opened a Commonwealth Bank account, which was unusual given that he had declared that he was in Australia for a holiday. Between 19 October 2015 and 10 May 2016, a total of $67,000 Australian dollars were deposited through ATM cash deposits.
(c)On 24 October 2015, the appellant flew from Sydney to Perth.
(d)On 10 December 2015, the appellant rented the Canning Vale premises. He also purchased a Navman device, which was seized from his vehicle on 20 May 2016.
(e)On 31 January 2016, the appellant purchased a handheld scoop and a suitcase of a kind similar to one recovered from the East Cannington premises.
(f)On 1 February 2016, he purchased clipseal bags identical to those recovered from the East Cannington and Embleton premises. These bags were used to repackage the methamphetamine found at those addresses.
(g)On 2 February 2016, the appellant purchased another handheld scoop, a triple pack of labels and two eight litre plastic containers.
(h)On 4 February 2016, the appellant purchased two more suitcases of a kind similar to those recovered from the East Cannington premises.
(i)The Navman seized from the appellant's vehicle revealed entries for the Wilbinga rest stop at 4.28 am and 8.21 am on 1 May 2016. This information is consistent with the appellant arriving at the Wilbinga rest stop at about 4.28 am and waiting there for the shore party.
(j)CCTV footage taken from a service station in Wanneroo at 8.36 am on 1 May 2016 showed a Hilux vehicle of the kind used by the appellant travelling south on Wanneroo Road. This is consistent with a vehicle driving to Perth from the Wilbinga rest stop.
(k)Surveillance had observed the appellant in company with Mr Wong and/or Mr Tang, Mr Chong, or Mr Ching.
An examination of the appellant's mobile telephone, which was recovered at the time of his arrest, revealed various WhatsApp messages, including communications between the appellant and Mr Tan, and the appellant and Mr Wong.
In an exchange between the appellant and Mr Tan, which occurred at about 11.12 am on 1 May 2016, they discussed the bag of methamphetamine which had been left behind at the landing site:
[Mr Tan]: … Tell me, tell me, are we short of one fish?
[Appellant]: Have you counted correctly?
[Mr Tan]: No more fish here, one is that the fishmonger and I counted incorrectly, two is that there were only 14 fish altogether but the fishmonger and I counted 15.
[Appellant]: Right. I have personally counted three times now.
Later on 1 May 2016, the following exchange between the appellant and Mr Tan occurred:
[Mr Tan]: Yes missing one bag it is here I am driving it over to the pub restaurant. Will you guys be there at 9 o'clock -
[Appellant]: Okay, we will wait for you.
Messages exchanged between the appellant and Mr Wong revealed that on 1 May 2016, the appellant told Mr Wong to 'get prepared'.

Later in the evening of 1 May 2016, the appellant and Mr Wong engaged in a discussion which included references to having '10 more to go' and 'someone wanting 33'.
On 3 May 2016, Mr Wong messaged the appellant to 'clean up the factory, to do all the cleaning'. The Crown said that this message was a reference to cleaning up the area in which the methamphetamine was being re‑bagged.
The appellant was interviewed by AFP officers after his arrest at the Canning Vale premises, on 20 May 2016 and again on 17 June 2016.
In the interview on 20 May 2016, the appellant made statements including:
(a)He arrived in Australia in October 2015.
(b)He came to Australia for a holiday and to work.
(c)He lived alone at the Canning Vale premises.
(d)He met a friend in Australia that he referred to as 'Fat' (which the prosecution alleged was a reference to Mr Tan).
(e)The Toyota HiLux found at the Canning Vale premises belonged to 'Fat'.
(f)He accepted a job for which he was paid $1,000 to clean and get rid of some bags.
(g)He used coded messages when communicating with 'Fat'. In a message which referred to 'fish', he was in fact referring to the black bags.
(h)The 4.1 g of methamphetamine found in his possession was for his personal use and had been imported by him when he arrived in Australia in October 2015.
In the interview conducted on 17 June 2016, the appellant made statements including:
(a)He rented the premises at Canning Vale and East Cannington.
(b)He was asked to rent the East Cannington premises by 'Fat'. He subrented it to 'Fat'. 'Fat' gave him the money to pay the landlord.
(d)The wheel rim found at the East Cannington premises was from the Toyota HiLux.
(d)The suitcases and the drugs were not his.
(e)He did not know anything about the orange rope on the black bags.
(f)He denied any knowledge of the methamphetamine found by law enforcement officers.
The Crown case was that the appellant and others were involved in a well‑resourced, well‑planned and sophisticated international operation to import into Australia a very large quantity of methamphetamine. It was said that the enterprise was coordinated by unknown persons in Hong Kong and Malaysia. It involved transporting the methamphetamine on board the vessel, which was crewed by eight men including Mr Luo and Mr Law. The Crown alleged that all on board the vessel were aware of the purpose of the voyage. Mr Luo was said to be the skipper, and Mr Law was said to have a supervisory role in respect of the crew. The coordinators of the enterprise communicated separately with the vessel and those awaiting its arrival in Western Australia.
In accordance with the plan, the vessel reached a point off Port Denison from where the tender was loaded with the 15 bags of methamphetamine and then taken to shore, where it was met by Mr Chong, Mr Ching, Mr Tang, and Mr Tan. The methamphetamine was then unloaded from the tender and moved into the waiting vehicles. The vehicles travelled to the Wilbinga rest stop, where the appellant was waiting with Mr Wong. The appellant then drove the vehicle containing 14 of the 15 bags of methamphetamine unloaded from the tender to Perth, where it was repackaged and kept at safehouses in East Cannington and Embleton.
The appellant (as well as the other shore‑based co‑accused) reported expenses incurred after his arrival in Australia on 16 October 2015 to a person who acted as an accountant for the enterprise. He was also in contact with Mr Tan. The appellant undertook a number of tasks designed to facilitate the plan, including renting the premises at which the methamphetamine was repackaged and stored. As mentioned, the appellant attended at the Wilbinga rest stop on 1 May 2016 and collected the methamphetamine. The Crown case was that the appellant was primarily responsible for the repackaging and distribution of the methamphetamine, and that, although he took instructions from others, he had a degree of oversight over some of the members of the shore party.
It was alleged that the appellant (and the other shore‑based co‑accused) imported the methamphetamine into Australia; not in the sense that they brought the substance into Australia but, rather, by dealing with it in connection with its importation in accordance with par (b) of the definition of the term 'import' in s 300.2 of the Code.

The defence case at trial

The appellant (and all of the co‑accused) elected not to give or adduce any evidence in his defence.
As put to the jury by the appellant's trial counsel, the defence case was as follows.
Defence counsel accepted that the appellant did not come to Australia for a six‑day holiday. Rather, consistently with what he had said in his interviews with law enforcement officers, he had come to Australia looking for work.
While defence counsel did not seriously suggest that methamphetamine was not imported into Australia by the vessel, it was suggested that the appellant knew nothing about the methamphetamine.
The defence case was that any assistance the appellant gave to others connected with the importation of the methamphetamine was unwittingly given, that is, he was unaware that he was involved in any importation of methamphetamine into Australia.
The appellant was characterised by his counsel as 'a foot soldier' who was 'kept in the dark' and 'taken advantage of'.

The trial judge's summing up

The appellant takes no issue with the correctness of the trial judge's summing up as to the elements of the offence allegedly committed by the appellant.
His Honour directed the jury that in order to find an accused who was part of the shore‑based party guilty of an offence contrary to s 307.1(1) of the Code, they needed to be satisfied beyond reasonable doubt of four elements:
(1)The accused entered into an agreement with at least one other party.
(2)The agreement was to import a border controlled drug into Australia.
(3)One or more of the parties to the agreement did an act or acts that together amounted to importing a border controlled drug into Australia.
(4)The quantity of the border controlled drug imported into Australia was a commercial quantity.
His Honour directed the jury that they had to be satisfied beyond reasonable doubt that the methamphetamine found at the East Cannington and Embleton premises was brought into Australia at the beach location by the tender from the vessel. If the jury were not satisfied of this, 'that would be the end of the matter'.[4]
[4] ts 3312.
His Honour directed the jury as to the meaning of the term 'import' in accordance with the definition in s 300.2 of the Code.[5] He instructed the jury that to import a border controlled drug meant to either bring the drug into Australia, or to deal with the drug in connection with its importation into Australia.[6] His Honour gave the following directions in respect of the actions of the shore‑based accused after the methamphetamine landed in Australia:[7]
[5] As to which, see the discussion in Brar v The Queen [2016] VSCA 281; (2016) 263 A Crim R 67 [39] ‑ [50]. The present appeal does not give rise to issues about whether the appellant's dealings were 'in connection with' the importation of the methamphetamine.
[6] ts 3312.
[7] ts 3312 - 3313.
As a matter of law, importation doesn't necessarily stop or what may be regarded as dealing with a substance in connection with its importation doesn't stop as soon as the substance crosses the border. The process, the importation process, continues beyond that at least until you might think the substance is unpacked.
Now, importation may involve several persons performing separate roles at different times in the importation process, as I explained before.
So activities that might occur after the border controlled drug has landed in Australia and which may constitute dealing with the border controlled drug in connection with the importation would include but would not be limited to the things that are then listed. So:
[(a)][r]ecovering the substance when or after it landed in Australia -
- and that is essentially what is alleged against at least some of the accused:
(b)transferring the imported substance into storage; (c) unpacking the substance; and/or (d) making the imported substance available to another person.
And you can see that all of those matters reflect the Crown's case in respect of one or more of the accused who are land based accused.

The verdicts

The Crown indicted all eight members of the crew of the vessel, charging each of them that on or about 1 May 2016, he imported a commercial quantity of methamphetamine, contrary to s 307.1(1) of the Code. As mentioned, Mr Luo and Mr Law were the only persons aboard the vessel to be convicted. The other six crew members were acquitted.
The appellant and all of the members of the shore party (except Mr Tan and Mr Chin) were charged with, and convicted of, importing a commercial quantity of methamphetamine, contrary to s 307.1(1) of the Code. Mr Wong was charged with, and convicted of, aiding, abetting, counselling or procuring the importation of a commercial quantity of methamphetamine, contrary to s 11.2(1) and s 307.1(1) of the Code.
Each of the persons convicted of an offence has initiated various appeal proceedings. For present purposes, it is only necessary to refer to the appeals commenced by Mr Luo and Mr Law. Each of Mr Luo and Mr Law commenced appeals pursuant to pt 3 of the CAA. Each of those appeals were dismissed.[8] Subsequently, Mr Luo and Mr Law each commenced a second appeal, under pt 3A of the CAA. As mentioned, this court has dismissed Mr Luo and Mr Law's second appeals.
[8] See Luo v The Queen [2020] WASCA 184 and Law v The Queen [2020] WASCA 196.

The alleged 'compelling fresh evidence'

All of the appellant's grounds of appeal rely on 'compelling fresh evidence'. The alleged 'compelling fresh evidence' is the subject of the application in an appeal filed 14 May 2024 and is set out in [7] above.
The material the appellant seeks to adduce as 'compelling fresh evidence' is almost identical to that relied upon in the appeals by Mr Luo and Mr Law under pt 3A of the CAA.
In the appellant's affidavit sworn 17 April 2024, he asserts a number of things, including that:
(a)The evidence adduced at trial was incapable of proving that the vessel was carrying the methamphetamine landed near Port Denison on 1 May 2016.
(b)The investigation conducted by law enforcement authorities was 'grossly inaccurate and led to [a] miscarriage of justice'. The appellant asserts that the vessel was not forensically investigated; the methamphetamine found in the East Cannington and Embleton premises was not analysed to see if it had the same chemical composition as the traces of methamphetamine found on the vessel; there was no DNA evidence to link the appellant to the methamphetamine found at either premises; and the vessel was 'optioned' or 'annihilated' before the completion of the investigation and the trial.
(c)The investigation used 'unconfirmed, uncorroborated evidence' from Mr Chong.
(d)The salt found in the vessel 'could have [been] left behind from [a] previous trip'. Further, it would not be surprising to find salt on a fishing vessel. Finally, there was no evidence that there had been any communication from the vessel to the shore party requesting that salt be provided to those on board.
(e)The presence of traces of methamphetamine in bags on the vessel was insufficient to link any methamphetamine carried on the vessel with the methamphetamine found at the East Cannington and Embleton premises.
The affidavits of Mr Luo and Mr Law, both sworn 2 April 2024, are also largely assertions focused upon the case brought against them. Each of them deposes that the vessel was not carrying drugs but, rather carried, as Mr Law stated, 'counterfeit goods including valuable watches, imitation branded clothing and duty free cigarettes and liquors', which he claimed had a multi‑million dollar value. It was said by Mr Law that the goods were 'discharged' from the vessel on 30 April 2016, and that the vessel immediately began its return journey at around 3.00 am to 4.00 am on 1 May 2016. Mr Luo states he was one of three on board the vessel who steered it during the voyage to Australia. None of the evidence just described was adduced at the trial, nor at Mr Luo or Mr Law's first appeals.
It is unnecessary to repeat in detail the contents of the affidavits sworn by Mr Wong, Mr Ching, and Mr Tang. In combination, the deponents make the same kind of assertions as those made by the appellant in his affidavit sworn 17 April 2024.

The appellant's submissions

The written submissions in the appellant's case filed 14 May 2024 are merely assertive and add little or nothing to the grounds of appeal as pleaded. In respect of ground 1, the appellant asserts that:
(a)There was no evidence that the vessel was carrying methamphetamine into Australia.
(b)The police did not conduct a forensic examination to establish that the methamphetamine allegedly found on the vessel was the same methamphetamine later found at the East Cannington and Embleton premises.
(c)The salt found on board the vessel was not given to those on the tender for its return journey to the vessel on 1 May 2016.
(d)None of the surveillance activities undertaken by the ABF or the AFP revealed any footage which established a link between the vessel and the shore party.
(e)The conclusion that the vessel was used to carry methamphetamine was contradicted by the fact that, other than Mr Luo and Mr Law, the members of the crew of the vessel were acquitted of importing methamphetamine into Australia.
(f)The vessel was 'optioned away' and 'annihilated' prior to the completion of the investigation and the trial.
The submissions contained in the appellant's case in respect of ground 2 make assertions not relevant to the ground itself. It is pointless to repeat them.
As to ground 3, the appellant asserts that the members of the 'land party' and those on the vessel were 'anonymous' to each other. This, it is said, shows that the groups were not linked. Further, the appellant asks, rhetorically, if the members of the 'land party' and those on the vessel were linked, why did the members of the 'land party' not go into hiding after those on the vessel were arrested?
On 17 May 2024, Buss P ordered the respondent to file and serve written submissions on the question of whether the court should give leave to appeal on any of the grounds of appeal. His Honour also gave leave to the appellant to file and serve written submissions in response to those filed by the respondent. The respondent filed its submissions opposing leave to appeal against conviction on 12 June 2024. The appellant filed his submissions in response on 9 July 2024.
In the course of the appellant's responsive submissions, which are not easy to follow, the appellant stated:
D.5Appellant admits his involvement in handling the drug but repeatedly emphasise that his is not involve in importation of the drug there was no evidence whatsoever that the drug was imported by the group of people.
The appellant elaborated:
D.7Appellant does not disputing his involvement in handling the drug from the vicinity of Port Denison and his activities in Perth area but disputing that he has any involvement of importing the drug which his head man Fat‑Tan [Mr Tan] may have arranged in placing the drug in the Port Denison, which appellant totally has no knowledge.
By these paragraphs, the appellant accepts that he handled the methamphetamine found at the East Cannington and Embleton premises, but does not accept that he was involved in its importation nor that he had any knowledge of its importation. That is, he did not bring it into Australia. He also appears to assert that the methamphetamine was not brought into Australia on the vessel.

Should the additional evidence sought to be adduced by the appellant be admitted?

The principles governing the admission on appeal of additional evidence not adduced at trial are well established and were summarised by Buss P in Clarke v The State of Western Australia.[9] We adopt his Honour's summary. It is unnecessary to repeat it save for the following.
[9] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].
At common law, there is a well‑established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.
Courts have traditionally treated appeals against conviction based on fresh evidence differently from appeals against conviction based on new evidence.
Where an accused has been convicted, an appellate court will not allow an appeal on the basis of new, as distinct from fresh, evidence unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.
Where an accused has been convicted, an appellate court will not allow an appeal on the basis of fresh evidence, as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury acting reasonably would have acquitted the appellant. The fresh evidence must be relevant. It must also be credible, in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it), or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).
Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; or
(b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
The appellant claims that all of the material he seeks to adduce is fresh evidence. An insurmountable problem for the appellant is that nearly all of the material in the affidavits is not evidence. Rather, it is assertion and is largely argumentative.
On our analysis of the additional material sought to be adduced by the appellant, the only relevant part which conceivably could be characterised as evidence is the claim contained in the affidavits of Mr Luo and Mr Law, to the effect that the vessel was not carrying drugs but was carrying counterfeit goods.[10] According to Mr Law, the goods were 'discharged' from the vessel on 30 April 2016 and the vessel immediately began its return journey at around 3.00 am to 4.00 am on 1 May 2016.
[10] The claim that Mr Luo was one of three people who steered the vessel on its voyage to Australia is irrelevant to this appeal.
Whether this evidence is 'fresh' or 'new' is a moot point in this appeal. This is because regardless of whether it was fresh or new evidence, and bearing in mind the principles described at [73] above, it is neither cogent nor plausible.
As explained in the reasons of this court in the second appeals of Mr Luo and Mr Law,[11] the Crown's circumstantial evidence at trial linking the vessel with the delivery of the methamphetamine near Port Denison was strong, if not overwhelming, and was largely unchallenged. While it is not necessary to set out the case in any more detail, it showed:
(a)The fishing vessel sailed to a point offshore from Port Denison, a short time before the methamphetamine was landed near that location.
(b)A tender was launched from the vessel about 100 nautical miles off Port Denison on the evening of 30 April 2016, and returned to the vessel in the early afternoon of 1 May 2016.
(c)A very large quantity of methamphetamine was landed near Port Denison on the morning of 1 May 2016.
(d)The vessel was intercepted and seized by ABF officers at about 5.55 pm on 1 May 2016 and was later thoroughly searched.
(e)Of the items discovered in the search, the small quantities of methamphetamine, the black bags, the orange‑coloured rope, and the GPS coordinates which matched the landing site near Port Denison were particularly incriminating. So, too, was the presence of the salt packets. The explanation proffered in this appeal by Mr Luo and Mr Law for the presence of the salt on the vessel, to the effect that the salt could have been left behind during a previous trip to Australia, is implausible.
(f)Members of the shore party took delivery of the methamphetamine on the morning of 1 May 2016, and a large quantity of the drug was found some three weeks later at addresses directly connected with members of the shore party.
[11] See Luo v The King [2025] WASCA 36.

The evidence of Mr Luo and Mr Law to the effect that the vessel was carrying counterfeit goods etc, is inconsistent with the defence put forward at their trial. In the case of Mr Luo, although he did not testify at his trial, his defence was conducted on the basis that he did not know the purpose or the destination of the voyage. Mr Law's case was conducted on the basis that he had no knowledge of the purpose of the voyage and that all that he did was sleep, eat and go to the toilet. The 'true' position now put by Mr Luo and Mr Law contradicts those defence cases. Although neither was obliged to give evidence at the trial, it would have been expected that the defence case would have been conducted on this basis. The fact that neither Mr Luo nor Mr Law did so indicates that their evidence in this appeal is a recent invention. Further, we observe that neither Mr Luo nor Mr Law referred to the vessel carrying any counterfeit goods etc, in their police interviews.
The cogency and plausibility of the evidence of Mr Luo and Mr Law is undermined by its absence of detail. Neither Mr Luo nor Mr Law explained how the counterfeit goods etc were loaded, packaged or stored on the vessel. Their evidence is silent as to how or when on 30 April 2016 the goods were 'discharged' from the vessel or who was responsible for transporting them to shore.
Further, Mr Luo and Mr Law both depose in their affidavits that the 'discharge' of the goods carried on the vessel occurred on 30 April 2016. Mr Law deposes that the vessel's return journey commenced at around 3.00 am to 4.00 am on 1 May 2016. This evidence is inconsistent with the unchallenged evidence of the ABF officers, who observed the tender rendezvous with the vessel at around 12.40 pm on 1 May 2016.
Having regard to the combined effect of the matters referred to between [79] and [81] above, no reasonable jury could regard the evidence of Mr Luo or Mr Law as stated in their affidavits as credible, cogent or plausible in the sense referred to at [73] above.
Because nearly all of the material the appellant seeks to adduce is not evidence and such of the material that could be said to be evidence is not credible, cogent or plausible, this court should not exercise the discretion conferred upon it under s 40(1)(e) of the CAA to admit it as evidence in this appeal.
As each of the grounds of appeal are based on this evidence, they all fail.
Ground 2 fails for an additional reason. There is no evidence that the investigation was 'grossly improper'. The fact that there was no chemical comparison between the traces of methamphetamine found on the vessel and that found in the East Cannington and Embleton premises cannot rationally lead to the conclusion that the investigation was 'grossly improper', or otherwise gave rise to a miscarriage of justice. As for the fact that the vessel was 'optioned' or 'annihilated', the evidence adduced at trial was that after the vessel was examined, it was sold at public auction.[12] It is significant that at the trial, it was not suggested that the appellant's case was in any way prejudiced by the fact that the vessel had been disposed of at a public auction. The appellant does not allege any specific injustice caused to him nor is any injustice apparent. For these additional reasons, ground 2 is without merit.
[12] ts 386.

Some further observations

We wish to make some observations about some of the appellant's submissions.
Contrary to the assertions of the appellant, the evidence that the vessel imported methamphetamine into Australia was strong, if not overwhelming. While there were many strands to the Crown's circumstantial case on this issue, the fact that traces of methamphetamine were found in black bags on board the vessel, which were the same type of bags as those bags found at the appellant's home, undermines any notion that the vessel was not carrying methamphetamine. Furthermore, the evidence clearly showed that 15 bags containing methamphetamine were transported by tender from the vessel to the shore near Port Denison in the early morning of 1 May 2016. There, waiting to take delivery of the methamphetamine, were Mr Chong, Mr Ching, Mr Tang and Mr Tan.
There was a clear link between the vessel and the shore party. Primarily, the link was established by the presence on the vessel of the GPS coordinates of the landing site and the salt which had been purchased in Perth and could have only been transported to the vessel via the tender.
There was overwhelming evidence of the appellant's involvement in the importation. On the Crown's case, the evidence plainly established that the appellant was present at the Wilbinga rest stop early in the morning of 1 May 2016. The Wilbinga rest stop is on Indian Ocean Drive, a relatively short distance from the landing site near Port Denison. Further, the appellant was in contact with Mr Tan on the morning of 1 May 2016. The WhatsApp messages referred to at [32] and [33] above are clearly about the 15 bags of methamphetamine that had been delivered that morning. Importantly, the WhatsApp messages show that the appellant himself had counted the bags and realised that one of them had been left behind at the landing site.
The WhatsApp messages referred to at [34] and [36] above are consistent with the appellant being involved in the repackaging of the methamphetamine and its distribution.
It appears from the appellant's submissions in this court that he now accepts that he was involved in the handling of the methamphetamine. His point appears to be he had no knowledge that the methamphetamine he handled had been imported in the sense that it was brought to shore near Port Denison. This submission cannot be accepted given his presence at the Wilbinga rest stop and his communications with Mr Tan on 1 May 2016.
It may be the appellant does not understand that even if he was not part of the shore party, he would nevertheless be guilty of the importation if he dealt with the methamphetamine in connection with the importation by taking possession of it after it landed in Australia, or transferring the substance into storage, or unpacking it or making the substance available to another person. Regardless of his understanding of the charge against him, the evidence overwhelmingly showed that he knowingly took possession of the imported methamphetamine, unpacked it, stored it or made it available to others.
The appellant observed that there was no direct evidence linking him with any of the persons on the vessel. While this is true, the enterprise in which the appellant was involved was coordinated from overseas by another or others. In these circumstances, it was unnecessary for those on the vessel to be communicating directly with those onshore and vice versa.

Conclusion and orders

As none of the grounds of appeal advanced by the appellant have any merit, it is pointless to grant an extension of time. The application to adduce additional evidence must be dismissed. In such circumstances, the issuing of witness summonses would have been pointless.
The orders that we would make are as follows:
1.An extension of time to appeal is refused.
2.The application to adduce additional evidence in the appeal filed 14 May 2024 is dismissed.
3.Leave to appeal on grounds 1, 2 and 3 is refused.
4.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
14 MARCH 2025