Ka Chung Fung v R [2007] NSWCCA 250 (21 August 2007)

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Ka Chung Fung v R [2007] NSWCCA 250

FILE NUMBER(S):

2006/4759 (FORMERLY 2007/868)

HEARING DATE(S): 19 July 2007

JUDGMENT DATE: 21 August 2007

PARTIES:

Appellant - Ka Chung FUNG

Respondent - Regina

JUDGMENT OF: Spigelman CJ Kirby J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0251

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 9 November 2005

COUNSEL:

Appellant - CV Jeffreys

Respondent - J Girdham

SOLICITORS:

Appellant - Jeffreys & Associates

Respondent - S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:

Conviction appeal - omission from summing up of direction on element of offence - Rule 4 and application of proviso - direction on accused's good character - no fixed formula - no substantial miscarriage of justice.

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985

Criminal Appeal Act 1912

CASES CITED:

R v Lau [1998] 105 A Crim R 167

R v Micalizzi [2004] NSWCCA 406

R v Moussa [2001] NSWCCA 427

R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558

Weiss v The Queen (2005) 223 ALR 662 ; [2005] HCA 81

Wilde [1988] HCA 6; (1988) 164 CLR 365: 31 A Crim R 331

R v Tripodina & Morabito (1988) 35 A Crim R 183

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

Holland v R (1993) 117 ALR 193

R v Cao [2006] NSWCCA 89; (2006) 65 NSWLR 552

R v Stalder [1981] 2 NSWLR 9

R v Telfer (2004) 142 A Crim R 132 ; [2004] NSWCCA 27

R v Robinson [1999] NSWCCA 172

R v Gillard CCA unreported 15 July 1991

R v Courtney-Smith (No 2) (1990) 48 A Crim R 49

DECISION:

Appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/4759 (Formerly 2007/868)

SPIGELMAN CJ

KIRBY J

LATHAM J

21 AUGUST 2007

KA CHUNG FUNG v REGINA

Judgment

1 SPIGELMAN CJ : I agree with Latham J.

2 KIRBY J : I agree with Latham J.

3 LATHAM J : The appellant appeals against his conviction after trial on two counts of Knowingly Take Part in the Supply of a Prohibited Drug pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985. Count 1 on the indictment alleged the supply of a commercial quantity of heroin on 21 August 2003. Count 2 alleged the supply of a large commercial quantity of heroin on the same date. There is no appeal against sentence.

4 There are two grounds of appeal. The first ground is that the trial judge erred in failing to direct the jury that the Crown was required to prove beyond reasonable doubt that the appellant knew or held a belief in each case that the relevant quantity of the drug was being supplied. It was conceded on the hearing of the appeal that such a direction was required, in order to inform the jury correctly as to the essential ingredients of the offences, and that the direction was not given. There were extensive discussions between the trial judge, the appellant’s counsel and the Crown Prosecutor at trial as to the nature of the directions to be given to the jury, yet counsel for the appellant did not request it. Leave is therefore required to rely upon this ground.

5 As the following discussion of the evidence at trial makes clear, the trial was conducted on a narrow basis, that is, the appellant disputed that he knew anything of the supply of heroin. The appellant’s case was that his conversations with, and his presence at various times in the company of three alleged co-offenders, were entirely innocent, although it was accepted that they were engaged in the supply of heroin. The argument on the hearing of the appeal was principally concerned with whether, in the light of that confinement to a relatively limited factual dispute, the absence of the direction attracts the proviso pursuant to s 6(1) of the Criminal Appeal Act 1912.

6 The second ground of appeal asserts that the trial judge’s direction to the jury on the use to be made of the evidence of the appellant’s good character was inadequate. No complaint was made by the appellant’s counsel at trial in respect of the direction that was given. Accordingly, leave is also required for reliance upon this ground.

The Conduct of the Trial

7 There were three bodies of evidence relied upon by the Crown at trial in order to prove the appellant’s guilt of the offences. One was the surveillance of the appellant in the company of Hoang, Lam (known as Billy Lam) and Lo in Sydney between 12 and 20 August 2003, another was the transcripts and recordings of 19 phonecalls between 17 and 21 August 2003, and the third was the evidence of Hoang who had received a four year sentence for one count of supplying 700 grams of heroin and had offered to give assistance to the authorities. This last category of evidence, if accepted by the jury, was capable of establishing the appellant’s guilt as direct evidence of the appellant’s involvement in the supply of the heroin in the designated quantities. Putting Hoang’s evidence to one side, the remaining categories of evidence, taken together, were also capable of proving the Crown case.

8 The appellant and Lam arrived in Melbourne on 10 August. They later came to Sydney and stayed at the Star City Casino. Lo had arrived in Sydney on 4 July 2003. Hoang was an Australian resident. It was the Crown case that the appellant and Lam orchestrated and supervised the supply of two blocks of heroin (approximately 350gms per block) to a Mr Minh Tran in Canley Vale on 21 August and the supply of a further four blocks of heroin, destined for Melbourne, later the same day. Hoang and Lo provided transport to the appellant and Lam, and acted as “gophers”. The appellant was responsible for arranging the transfer of the funds received as payment for the heroin back to Vietnam.

9 The jury was told by defence counsel at the outset that “the Crown case [was] largely not in dispute.” There was no dispute as to the identity of those persons recorded on the telephone intercepts, including the appellant. There was no dispute as to the finding of the heroin and as to the code words that were used by the co-offenders to signify certain quantities of the drug. Most importantly for the purposes of this appeal, the meaning attributed to terms such as “tapes” and “movies” was not in issue, since it was common ground that Hoang, Lo and Lam were referring to 350 gram blocks of heroin. The dispute, it was submitted, centred upon the interpretation to be placed upon the appellant’s use of terms such as “portions” and “pieces” and Hoang’s evidence, in so far as it established the appellant’s direct participation in the enterprise. The appellant maintained that “portions” and “pieces” referred to money, being the proceeds of gambling wins, which he was sending to his wife in Vietnam. The prosecution alleged that any discussion about money referred to payment for the heroin, and that “portions” and “pieces” were, on occasions, references to quantities of heroin.

The Evidence at Trial

10 Extensive surveillance was carried out by Federal Police between 12 August and 21 August 2003, in the course of which the appellant and Lam were frequently seen, both together, and in the company of Lo and Hoang in the centre of Sydney and at various times in the Canley Vale and Cabramatta area. The appellant’s explanation for these activities was that he was a business associate of Lam’s and that the appellant was introduced to Lo and Hoang through Lam.

11 Hoang rented a Corolla, registration number YRN 301, on 15 August 2003.

12 At about 5 p.m. on 17 August 2003, the appellant called Minh Tran (Tran), asking Tran why his “bosses” had not done anything since they had "viewed all the stuff". According to Tran, his boss thought there was no urgency. The appellant replied "our boss has a few things for you, I have a little bit powder ". The appellant urged Tran to take some action.

13 The appellant’s account of this call was that the Cantonese word for “powder” could also be translated as “share” or “portion” and that the appellant was referring to a share in a Piaget watch, which Lam had bought for Tran. Tran had not paid Lam for the watch and had borrowed money from the appellant for that purpose. The appellant claimed that he was simply encouraging Tran to pay the appellant back.

14 At about 4:45 p.m. on 19 August 2003, Lam called Tran, who indicated that it would be the day after tomorrow, that is 21 August 2003. Lam asked whether it would be "two tapes", that is, two blocks of heroin, and that he “would carry it in”. Lam said that if Tran wanted to sample the heroin he could do so.

15 At approximately 9 p.m. that evening, the appellant made a call on a mobile phone using a SIM card found in his possession upon his arrest. The appellant spoke to "Elder Brother Sou". The appellant referred to himself as Billy’s partner and spoke of a request from a person called Ah Tigh to buy two bottles of X.O. and “send them down there”. The appellant acknowledged in his evidence that he was speaking to someone in Melbourne, for whom he was purchasing two bottles of wine or brandy, although on the Crown case this conversation was a prelude to the further supply of heroin represented by the second count on the indictment.

16 At about 4 a.m. on the morning of 21 August 2003, the appellant made an overseas call to an unknown male. The appellant was told to keep close to “B” (Lam). The appellant asked whether "without his help, are you able to get the stuff?" and commented that "this time there will be about 10 something or 20 chunks, but the transaction must be done by cash". The appellant was then asked who would “pay the paper”, to which the appellant replied that he would sort it out with the boss. The unknown male told the appellant that "uncle will make a cut in it and we will make a cut in it as well. Even so, it will still be able to walk." There followed a discussion about price and the appellant queried whether the goods could be obtained at a cheaper price. The unknown male responded yes because "he has made a cut in it".

17 Once again, the Crown maintained at trial that the appellant’s references to “paper” and the price of diluted goods, clearly referred to the profitability of heroin that had been diluted with a cutting agent. The appellant’s evidence was that he was speaking of the sale of seafood or shrimp to an overseas market, and that the term “chunks” was consistent with 10 or 20 boxes of seafood.

18 At about 2 p.m. on 21 August 2005, Lam called Lo and asked Lo to take the heroin out and cut it for later that night, that is, divide it into two. A few minutes later Lam called Lo again and gave further instructions to Lo about dividing and wrapping the heroin.

19 At about 3:15 p.m. that afternoon, the appellant called Lo and asked him why he was taking so long. Lo said that he was coming over. Approximately 5 minutes later, Hoang and Lo travelled to Star City Casino in the Corolla and met the appellant at the entrance. The appellant then drove Lam in the Corolla to Wentworthville, leaving Hoang and Lo at the casino. At about 3:50 p.m. Lam called Lo and told him to go back and take the two blocks of heroin, including the one that is a bit broken, and go to the “baldhead man's parking space”, taking both blocks. It was a significant part of the Crown case that the appellant was in Lam’s company throughout this period of time, although there was no direct evidence that the appellant was in a position to hear Lam’s instructions to Lo.

20 Lo and Hoang took a taxi from the casino to Lo's apartment where Lo retrieved two blocks of heroin. Lo returned to the taxi with the heroin and they both continued to a restaurant in Canley Vale. In the meantime, the appellant and Lam became lost in Wentworthville. Lam took a taxi to Canley Vale whilst the appellant followed in the Corolla. Lam contacted Lo at the restaurant in Canley Vale and told him to order food and put “those two movies” in with the take-away food. Lam then told Lo to tell “cousin” (Hoang) to go to the back of the premises so that Lam might be driven to Tran’s premises. Lam told Lo to put the “tapes” at the bottom of the take-away food with the noodles on top.

21 According to the evidence given by Hoang at trial, the appellant was present when this call was made to Lo. However, the surveillance evidence suggested that the appellant arrived at the car park adjacent to the restaurant at about 5:28 p.m., some four minutes after the relevant phone call was made to Lo. This issue was squarely ventilated at trial, both by way of cross examination of the police officer undertaking surveillance of the appellant and cross examination of Hoang. Ultimately, the Crown Prosecutor conceded to the jury that Hoang was mistaken about the appellant’s presence at this time. Some emphasis was placed upon this concession on the hearing of the appeal, in order to stress the importance of the absent direction, in circumstances where it is said that the evidence failed to establish that the appellant was privy to the use of the term “tapes” or “movies”.

22 Lo carried out the instructions given by Lam, who entered the restaurant shortly after 5:30 p.m. Following Lam's arrival, the appellant went to the Corolla in the car park and took an item from it. Hoang and Lam then entered the Corolla and drove from the car park to Cabramatta.

23 They arrived at Tran’s premises at approximately 5:45 p.m. Lam left the vehicle carrying a white plastic bag and entered the premises. Hoang returned alone in the Corolla to the car park adjacent to the restaurant. About 20 minutes later, Lam called Lo and asked to speak to the appellant. Lam told the appellant that "five is missing" (meaning 5 gms are missing) and that Tran only needed the one that is broken. The appellant said “ask him to do it as well” and told Lam to leave it there.

24 The appellant’s explanation for this conversation was that Lam held $10,000 of the appellant’s winnings in a casino account. The appellant wanted the money sent back to Vietnam and Lam had gone to a friend’s house to retrieve the equivalent sum. The reference to “five is missing” possibly related to the full amount not having been received. The reference to the broken one was a reference to the fact that Lam was trying to sell either a Rolex or Piaget watch to Tran and that Tran’s dissatisfaction related to a scratch on the surface of the watch.

25 The difficulty inherent in this explanation (and other explanations proffered by the appellant) is that the defence accepted that Lam was supplying heroin to Tran. Later that night when a search of Tran’s premises resulted in the seizure of two blocks of heroin, one block was found to weigh only 343.9 grams (approximately 5 grams short of the standard weight), whilst the other weighed 351.2 grams. The congruence between Lam’s conversation with the appellant and the actual shortfall in the weight of the heroin was too close to admit of another tortured interpretation, where no mention is made of “watches” or “money”. This transaction is the foundation of the first count in the indictment relating to the commercial quantity of heroin (in fact, almost three times the commercial quantity).

26 At about 6:20 p.m., Lam and Tran left Tran’s premises, in a vehicle, registration number MVK 133. They travelled back to the restaurant where Lam carried a plastic bag (containing payment for the heroin) to the boot of the Corolla. Hoang opened the boot and Lam placed the plastic bag inside. Tran then left in his vehicle.

27 Inside the restaurant where Hoang, Lo and the appellant were waiting, Lam arranged a meeting with Bou Gor at a Red Rooster outlet on the Hume Highway. Just before leaving the restaurant, the appellant called an unknown male who instructed the appellant to call him as soon as the meeting had taken place with Bou Gor. The appellant said that he was on his way and that “two portions are needed. Give him two pieces.” The male responded with “take four from my employees” and the appellant said “yes, four pieces, yes.” The Crown relied upon this conversation, taken together with the evidence of Hoang, to demonstrate that the appellant was setting in train the purchase of four blocks of heroin for on-supply to the purchaser in Melbourne.

28 The appellant’s explanation for this conversation was that he was speaking about a friend in Vietnam, to whom he owed money and from whom he wished to borrow money. Hence the references to “portions” equated to lots of $10,000 and “pieces” equated to lots of $5,000. The appellant wished to borrow $20,000, having previously borrowed $15,000.

29 At 6:45 p.m., Hoang, Lo, Lam and the appellant entered the Corolla, after Hoang had taken a package from the boot (the bag containing Tran’s money) and given it to the appellant. Hoang drove the vehicle, with Lam in the front passenger seat and the appellant and Lo in the rear. Whilst en route, the appellant made an overseas call to the previous unknown male who told the appellant that the number he was given is wrong. The appellant gave him a mobile number and asked if Bou Gor had left. Very shortly after this phone conversation, the Corolla was seen stationary at traffic lights in Villawood. A police officer saw the interior light of the car was on and that the appellant was apparently counting money. This was confirmed by Hoang’s evidence, but denied by the appellant.

30 At about 7:10 p.m., the Corolla arrived at Red Rooster, Hume Highway, Bass Hill where Lam left the car and met with Bou Gor, to give him part of the money from the sale of the heroin to Tran. All four men left the Red Rooster car park in the Corolla. The appellant made an overseas phone call to an unknown person telling him that they "have fixed it" and that "17" was given to Bou Gor. The appellant confirmed that he was ready at any time, that he was just waiting and that they should be as quick as possible.

31 The appellant claimed in his evidence that he was again referring to the repayment of loan monies.

32 Lam discovered that one of the bundles of money had been inadvertently left in the car. Lam rang Bou Gor to ask him to count the "piles you have there". Bou Gor said that he had "just four, no more, no less." Hoang gave evidence that he stopped the car and found a bundle of money under the seat.

33 Whilst travelling towards Haymarket, as a result of a further phone call to the appellant, arrangements were made between Hoang and Ah Dee to meet at the bowling club at Enfield at 8:30 p.m. that night. The appellant and the offenders returned to Lo’s apartment, collected a sample of heroin and travelled in the Corolla to the vicinity of the Mandarin club on Pitt Street where Hoang entered the club and provided the sample to a prospective purchaser. Hoang returned to the vehicle which then travelled to the casino where the appellant and Lam left the vehicle.

34 The Corolla travelled with Hoang and Lo to the AMF Bowling Centre in Enfield where Lo left the car. Lo returned a short time later carrying a plastic bag, containing four blocks of heroin, got into the car and placed the plastic bag under the seat. The Corolla drove off. Lo called Lam to inform him that they had taken delivery of the heroin.

35 At 8:45 p.m. police stopped the Corolla, searched the vehicle and found a plastic bag containing an ice-cream container, which in turn contained four wrapped blocks of heroin. One block had the letter “F” on it, consistent with a similar block found in Tran's premises. The respective weights of the heroin in the four blocks were 352.5 g, 351.9 g, 351.4 g and 350.9 g. According to the evidence of Hoang, he had been asked by both Lam and the appellant to take either two or all four of the blocks to Melbourne by bus. The appellant and Lam were to fly to Melbourne that evening, but were arrested as they were leaving Star City Casino for the airport.

36 This transaction is the foundation of the second charge in the indictment relating to the large commercial quantity (that is, approx. one and a half times the large commercial quantity).

Ground 1

37 The trial judge’s summing up relevantly commenced with the following directions on the ingredients of the offence of knowingly take part in supply:-

The essential elements for both charges are that there was a supply of a prohibited drug, that the accused took part in the supply of the prohibited drug, and that he did so knowingly.

[A direction on the meaning of supply is then given.]

As a matter of law, I tell you that heroin is a prohibited drug and also, as a matter of law, I tell you that in relation to heroin any amount in excess of 250 g is a commercial quantity and any amount over a kilo is a large commercial quantity.

..................................................................................

What is in dispute and the matters which you must be satisfied of beyond reasonable doubt before you could find the accused guilty are the next elements of the charge; that is, whether the accused took part in the supply of drugs and that, when he took part, he did so knowingly.

...............................................................................

38 Her Honour next refers to the phone calls in the context of the Crown case and to the necessity for the jury to determine the words reproduced on the tape recordings. In particular, the jury is directed to resolve the question of fact whether “powder” could also mean “share”. There are further directions relating to the meaning to be attributed to the phone conversations, before her Honour says :-

It is important that you understand if you found that Lam and Lo were talking about heroin, you could not simply say "well, look, they were talking about heroin. The accused must have been talking about heroin." You must look at the conversations of the accused and decide what is he talking about. Is he talking about bottles of brandy? Is he talking about drugs and so on? You cannot simply jump from finding that Lo and Lam were talking about heroin to a conclusion that the accused was. You must look at the tapes and look at the context.

....................................................................................

In relation to the calls where the accused is talking, you have to determine what he is talking about and you have to be satisfied beyond reasonable doubt that he is talking about drugs and making arrangements for the supply of them in those conversations before you could use them in the Crown case against him. So where the accused is talking you have got to be satisfied beyond reasonable doubt that he is talking about drugs and the supply of them before you can use those conversations in the Crown case against the accused.

39 Later in the summing up, the following direction appears :-

In this context, knowingly means that the accused knew or believed that what was being arranged to be delivered was or was likely to be a prohibited drug. It is not necessary for the Crown to prove beyond reasonable doubt that he knew the particular drug was heroin. That means that the Crown must prove beyond reasonable doubt that the accused knew or believed that what was to be handed to Tran was drugs. And further, the Crown must prove beyond reasonable doubt that the accused deliberately and intentionally assisted in the process of supply. But the steps have to be done with the knowledge that I have just explained to you.

In proving what the accused knew, the Crown relies on the evidence of Mr Hoang and it also asks you to conclude what the accused knew from other evidence in the case. And I have already talked to you about the evidence of Mr Hoang, and he has given evidence about what he says the accused knew and what he was doing.

But in relation to the second way in which the Crown seeks to prove what the accused knew, the Crown proves that indirectly by proving a number of facts to you and asking you to conclude from those facts that the accused knew, in relation to the first charge, that there was going to be a supply to Tran, and that he knew, in relation to the second charge, that what he was arranging was the supply of four blocks of heroin.

40 Her Honour was here distinguishing between direct proof by way of reliance upon the evidence of Hoang on the one hand, and indirect proof, by way of reliance upon the combination of circumstances, including the phone calls and the surveillance evidence. It is notable however, that her Honour refers explicitly to the appellant’s knowledge of the supply of four blocks of heroin in relation to the second charge.

41 Her Honour then gives a circumstantial case direction and repeats the earlier direction that the jury must be satisfied beyond reasonable doubt that the appellant was talking about the supply of heroin in the course of the conversations to which he was a party. Her Honour emphasises that, for this purpose, the jury must disregard the conversations to which the appellant was not a party.

42 At no stage does her Honour direct the jury that the Crown was required to prove beyond reasonable doubt that the appellant knew, or believed that there was a significant or real chance, that the heroin was above the commercial quantity in respect of the first count and above the large commercial quantity in respect of the second count. With the exception of the direction set out at par. 39 above, her Honour’s directions as to the requisite knowledge for the commission of the offences were restricted to the appellant’s knowledge of the substance supplied being a prohibited drug. Clear directions in respect of knowledge on both limbs are important features of a summing up for offences under the Drug Misuse and Trafficking Act : R v Lau [1998] 105 A Crim R 167 ; R v Micalizzi [2004] NSWCCA 406.

43 Some insight into why the direction was not given may be gleaned from the following exchange between her Honour and counsel on the third day of the trial :-

Her Honour : Do you say, Mr Crown, that the accused has to know the quantity --

Crown Prosecutor : Does not have to know the quantity. It may be that we have some evidence that we might rely on to say that – it infers that he does, but he does not, no, have to know --

Her Honour : But it is something you have to prove ?

Crown Prosecutor : It is something we have to prove – the quantity --

Her Honour : But you don’t have to -

Crown Prosecutor : -- supplied was --

Her Honour : - prove that the accused knew the particular quantity?

Crown Prosecutor : I didn’t – I don’t have to prove that he knew what that quantity was.

Her Honour : If you have a different view – you may not ; it may be perfectly ordinary. I mainly do Commonwealth drug trials .... If you have a different view, will you tell me about it ?

Accused’s Counsel : I can probably say to your Honour at this point in time, my first reaction is, I wouldn’t have a different view, but – I’ll look at it, but I don’t think it’ll be any different to what has been indicated.

44 The subject was never re-visited, even though her Honour discussed with defence counsel the nature of her proposed directions immediately after the Crown Prosecutor’s closing address and before defence counsel’s address. Specifically, that discussion was in terms of clarifying with defence counsel what was, and was not, in dispute in the trial. Counsel confirmed that it was not disputed that there was a supply of drugs to Tran, being the first count, and that there was an intended supply of 1.4 kgs, being the second count. It was also confirmed that it was not disputed that Lam, Lo and Tran were talking about the supply of drugs in the conversations recorded between each of them. Her Honour also asked both counsel whether they had anything to raise at the end of the summing up, before the jury retired, and once again nothing was said on this topic.

45 I observe in passing that her Honour did not direct the jury that the Crown did not have to prove the appellant’s knowledge of the relevant quantity beyond reasonable doubt, in spite of the discussion reproduced above at [43]. This was not a case of an erroneous direction, rather the jury was simply not directed on the element at all.

46 The reference to Commonwealth drug trials strongly suggests that her Honour was seeking clarification of the extent to which proof of the instant charges differed from proof of corresponding importation offences. The confusion was perhaps understandable, given that the investigation, surveillance and charging of the appellant was undertaken jointly by NSW and Federal police. In any event, her Honour received the wrong answer and it was never corrected. Defence counsel was relatively inexperienced, although the same could not be said of the Crown Prosecutor. There is no ground alleging incompetence on the part of defence counsel. Her Honour did not receive the assistance to which she was entitled.

47 Against this background, it is necessary to consider the application of Rule 4 and the consequences that flow from the error at trial. This issue received attention in R v Moussa [2001] NSWCCA 427, where Howie J (with the concurrence of Giles JA and Carruthers AJ) said at [59] and following ;-

It seems timely to repeat again what Hunt J had to say in R v Abusafiah (1991) 24 NSWLR 531 at 536:

"The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or nondirection may without leave be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it and if counsel for the accused to whose detriment the error fails to comply with his or her duties to draw the judge's attention to that error, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial."

60 It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial.

61 Nor can bald assertions by trial counsel that there was no tactical reason for a failure to take the point always be taken at face value. This is not to suggest that trial counsel would seek to mislead this Court, but counsel cannot be expected, many months after the event, to recall accurately the atmosphere of the trial or the circumstances in which decisions were made during the course of it. Tactical choices are often made on the spur of the moment as the trial takes on a certain complexion, for example, because of a change in the evidence in the Crown case.

....................................................................................

63 At the end of the day the question, with which this Court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decisions, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the Court to take objections or seek re-directions where appropriate: R v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: R v Birks (1990) 19 NSWLR 677 at 685. If leave is required under rule 4, then the applicant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A Crim R 183 at 191; R v Williamson and Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this Court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A Crim R 226. (emphasis not in original)

48 These remarks were made in the course of dealing with a ground of appeal complaining of a trial judge’s failure to give a direction as to lies told by an accused, where counsel at trial had not sought such a direction. I acknowledge that a failure to direct correctly or at all, in relation to the elements of an offence, stands in quite a different category, and that in such a case an applicant will generally be able to persuade the Court that a miscarriage of justice may have occurred. Leave to rely upon the first ground of the appeal ought be granted : see R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 at 579.

49 Has no substantial miscarriage of justice actually occurred ? If this Court, after carrying out its own independent assessment of the evidence and making due allowance for the natural limitations that exist in the appellate jurisdiction, determines that the appellant was proved beyond reasonable doubt to have committed the offences upon which he was convicted, the proviso has been satisfied : Weiss v The Queen (2005) 223 ALR 662 ; [2005] HCA 81.

50 I would make one further observation before passing to consider whether the proviso has been satisfied. The appellant’s representative on the hearing of the appeal did not submit that the failure to give the identified direction amounted to an irregularity “which [was] such a departure from the essential requirements of the law that it [went] to the root of the proceedings : see Wilde [1988] HCA 6; (1988) 164 CLR 365 at 369: [1988] HCA 6; 31 A Crim R 331 at 334.” : R v Tripodina & Morabito (1988) 35 A Crim R 183 at 195. The argument that was advanced focussed upon the appellant’s absence from the restaurant when Lam and Lo were speaking of “tapes” and “movies”. It was submitted, in effect, that in the absence of evidence capable of providing a foundation for proving the appellant’s understanding or use of those terms, the failure to give a direction on the necessity to be satisfied beyond reasonable doubt of the appellant’s knowledge of the quantity of heroin on each occasion deprived the appellant of a real chance of acquittal. It was accepted that rule 4 applied.

51 Where the trial process is fundamentally flawed, there is no occasion for the application of Rule 4 or the proviso under s 6(1) of the Criminal Appeal Act 1912 because the proceedings “have so far miscarried as hardly to be a trial at all” : Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373. In any event, the High Court in Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at 212 rejected an argument that a misdirection concerning an element of the offence necessarily constitutes a fundamental error, so as to preclude the application of the proviso. (See also Holland v R (1993) 117 ALR 193 and Gulliford , both discussed in R v Cao [2006] NSWCCA 89; (2006) 65 NSWLR 552 at 570-571.)

52 The question whether no substantial miscarriage of justice has actually occurred is to be answered having regard to all of the circumstances of the trial, including the strength of the prosecution case and the relative merits of the defence case. In my view the Crown case was more than cogent, it was compelling. In particular, once it is accepted that the appellant was participating in the supply of heroin on each occasion as “Billy’s partner”, there is no room for a reasonable doubt as to the appellant’s knowledge of the requisite amounts. That conclusion arises out of the fact that it was never disputed that Lam, Lo and Tran discussed the supply of more than the commercial quantity of heroin, and more than the large commercial quantity of heroin, and that supplies of that amount took place.

53 Paying due regard to the caution with which the evidence of Hoang must be approached, I would have no hesitation in accepting his evidence. It was supported in a significant number of very material respects that were ultimately accepted by the appellant. The import of the phone conversations was the subject of appropriately qualified opinion evidence from a police officer experienced in the investigation of drug transactions and that uncontradicted evidence was consistent with Hoang’s evidence. The surveillance evidence and the timing of the phone calls also dovetailed with Hoang’s account of the instructions he received and the journeys undertaken to pick up and deliver the heroin. The only aspect of Hoang’s evidence that was substantially in dispute was Hoang’s nomination of the appellant as a prime mover, together with Lam, in the supply of the heroin. The acceptance of Hoang’s evidence is sufficient to prove every element of the offences against the appellant beyond reasonable doubt.

54 Even putting Hoang’s evidence to one side, the combination of circumstances relied upon by the Crown at trial were eloquent of the appellant’s guilt. The appellant admitted referring to himself as “Billy’s partner”, albeit in the context of a phone call that was, according to the appellant, unrelated to the supply of heroin. It offends common sense to accept the appellant’s construction of the conversations in which he participated. They were not plausible or sensible explanations for conversations that professed to be as innocuous as discussions about payment of, and damage to, watches and the business of seafood exports, yet nothing remotely resembling those topics appears in the conversations. To the contrary, the conversations in which the appellant took part make perfect sense when viewed in the context of the other telephone intercepts, which were acknowledged by the appellant to be about the supply of heroin in 350 gram blocks. The appellant bore no onus of proof, but the spurious nature of his evidence does nothing to cast doubt upon the construction contended for by the Crown.

55 The absence of evidence directly attributing to the appellant the use or comprehension of the terms “tapes” and “movies” does not detract, in my view, from the force of the Crown case. A critical conversation on the Crown case was Lam’s call to the appellant when Tran took exception to the missing 5 grams. As I have already noted, the overwhelming inference is that the appellant was aware of the extent to which the two blocks of heroin fell short of the agreed amount. Acceptance of that aspect of the Crown case on the first count is sufficient to satisfy the proviso. As for the second count, the appellant’s confirmation to Bou Gor that four “pieces” were needed, taken together with the conversation relating to the two bottles (two portions) to be supplied “down there” and the appellant’s intended trip to Melbourne, provide ample proof of the appellant’s knowledge of the quantity to be supplied in relation to the second count.

56 It follows that I would grant leave to rely upon the first ground but reject that ground in reliance upon the proviso.

Ground 2

57 Her Honour’s direction on the subject of the appellant’s good character came at the end of the summing up. Her Honour said :-

You have heard evidence from Det Dixon that did some searches and he could not find that the accused had ever been convicted or charged with any drug offences either here or in Hong Kong. And if you accepted that evidence, and there was no dispute about it, you could find that the accused was a person of good character. Now the law says that you can take good character into account in an accused’s favour in two ways. The first is on the question of his guilt. That is, a person of good character is less likely to have committed the offence than a person not of good character.

The other way you can take it into account is when considering the reliability or the credibility of the believability of the accused. That is, people of good character are generally less likely to lie than people who are not of good character. And you can take the good character of the accused into account in considering whether you accept his evidence that he gave to you here in the witness box and when he was talking to the police on his record of interview.

None of this means of course that good character provides some kind of defence. People of good character are not incapable of committing criminal offences. Everybody who has ever been committed of a criminal offence was a person of good character at one stage. But it is one of the many factors that you must take into account in determining the evidence and considering whether the Crown has proved its case against the accused beyond reasonable doubt.

58 The complaint advanced by the appellant on this ground takes issue with that portion of the direction set out above in bold. The appellant relies upon what was said by Street CJ in R v Stalder [1981] 2 NSWLR 9 at 17 where "the unlikelihood of guilt [was said to] most accurately describe the proposition in aid of which evidence of good character can be used”. It is said that the use of the words "less likely" tend to diminish the concept of the unlikelihood of guilt and therefore amounted to a serious misdirection.

59 In R v Telfer (2004) 142 A Crim R 132 ; [2004] NSWCCA 27, Bell J (with whom Grove J and Sully J agreed) dealt with an identical ground of appeal. In that case, the trial judge had merely directed the jury that the absence of convictions for serious offences was to be taken into account when considering whether the Crown had proved its case beyond reasonable doubt. Counsel at trial had asked for a direction that went specifically to the improbability of the accused having committed a serious offence, but that request was declined by the trial judge. Bell J noted that R v Robinson [1999] NSWCCA 172 was authority for the proposition that “it is not incumbent upon a trial judge to give directions on the relevance of character by any fixed formula”, (per Grove J in Robinson, referring to R v Gillard CCA unreported 15 July 1991) and that this Court had reached a similar view in R v Courtney-Smith (No 2) (1990) 48 A Crim R 49. The appeal in Telfer was dismissed.

60 There is no other aspect of her Honour’s direction that invites criticism. I am not persuaded that there is a distinction of any moment between a direction referring to the unlikelihood of guilt and a direction in terms of the improbability of a person of good character committing an offence, relative to a person lacking that attribute. Her Honour’s direction fell into the latter category. There is no substance to this ground and Rule 4 applies.

61 I would refuse leave to rely upon the second ground of the appeal.

62 Accordingly, the order I propose is :-

1. Appeal against conviction dismissed.

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LAST UPDATED: 21 August 2007